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Gilkerson v. Harter

United States District Court, Ninth Circuit

August 29, 2013

TRACY GILKERSON, Plaintiff,
v.
JOEL HARTER, et al, Defendants.

FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

Presently pending before the Court is a motion to dismiss, filed on March 7, 2013, by defendants Workers' Compensation Appeals Board ("WCAB"), Hon. Joel Harter, Hon. Joseph Rebeck, and Hon. Robert Thiessen.[1] ECF No. 8. Plaintiff has filed an opposition[2] to defendants' motion, ECF No. 14, to which defendants have filed a response, ECF No. 16. Also before the Court is an order to show cause, which was filed by this Court on June 28, 2013. ECF No. 19. On July 11, 2013, plaintiff filed a response to the order to show cause. ECF No. 20. Having reviewed the papers in support of and in opposition to the motion and order at hand, the court now issues the following findings and recommendations:

BACKGROUND

Plaintiff is proceeding pro se and has paid the filing fee. This original complaint was filed on November 19, 2012. ECF No. 1. Plaintiff's first amended complaint ("FAC"), filed on February 19, 2013, is presently before the court. ECF No. 5. The FAC generally alleges that plaintiff's constitutional rights and California law were violated by defendants during the litigation before the WCAB, regarding plaintiff's claim for workers' compensation benefits. Id . Defendants Harter, Thiessen, and Rebeck are Administrative Law Judges with the WCAB. Although defendants WCAB, Harter, Rebeck, and Thiessen state that they have not been served, ECF No. 8 at n. 1, they have made appearances by filing the motion to dismiss, obviating the need for service on them.

On June 28, 2013, this Court filed an order directing plaintiff to show cause why the following defendants should not be dismissed: Berkshire Hathaway Homestead Companies; American Commercial Claims Administrators; Shaw, Jacobsmeyer, Crain, Claffey & Nix, LLP; Laughlin, Falbo, Levy & Moresi, LLP; Jaffe; Ahn, Weilepp; and, Ely. ECF No. 19. These defendants have not been served and pursuant to Federal Rule of Civil Procedure 4(m), this Court may dismiss an action where service of summons is not made within 120 days after the filing of the complaint. Plaintiff filed a response to this Court's order to show cause, but failed to address the issue of why there is no record that these defendants have been served with process. ECF No. 20. Instead of addressing the merits of the order to show cause, plaintiff provided notice that the action is advancing to the United States Supreme Court for numerous reasons. Id . Therefore, the aforementioned defendants should be dismissed from this action.

DISCUSSION

Plaintiff's FAC alleges that there have been multiple procedural errors committed by defendant's Harter, Rebeck, and Thiessen in the course of the WCAB proceedings and that those errors violated his rights under Article One, § 9, Article Two, § 10 of the United States Constitution and the Fourth, Fifth, Sixth, Eight, Ninth, and Fourteenth Amendments of the United States Constitution. ECF No. 5. However, plaintiff's FAC does not state whether defendants are sued in their official or individual capacities. Also, plaintiff makes no specific allegations pertaining to the WCAB.

Specifically, plaintiff alleges that when defendant Thiessen, the trial judge, asked if plaintiff would wait for opposing counsel to arrive during a scheduled appointment time, which plaintiff agreed to, that the request was made without proper jurisdiction, violated his due process rights, displayed defendant's bias, and resulted in a miscarriage of justice. Id. at 4-5. Plaintiff asserts that defendant Thiessen "should have monitored Modus Operandi within the realm of the Court: Allowing the Plaintiff" U.S. Constitutional Rights/Equal Protection Under the Law without discrimination of persons." Id. at 14. Plaintiff alleges that defendant Thiessen misled him about the nature of a status conference and allowed plaintiff's attorney to withdraw from the case without prior notice to plaintiff, over his protests, and without appointing him a new attorney. Id. at 15-18. Plaintiff also alleges that defendant Thiessen issued an order based on falsified and perjured evidence from that the co-defendants supplied without a proper hearing, which compelled plaintiff to attend a medical evaluation. Id. at 19-21. When plaintiff failed to comply with that order, defendant Thiessen issued another order barring plaintiff's right to any temporary disability benefits accrued thereafter, which plaintiff claims was a violation of his Eighth and Ninth Amendment Rights. Id. at 21.

Plaintiff also alleges that defendant Rebeck's name was stamped on two subpoenas used by the defendants in the WCAB action, and that the subpoenas were issued without any hearing. Id. at 1, 9, 10, 18. Plaintiff states that defendant Rebeck was "[e]ntangled in this situation for failing to set a Motion For a Hearing on the documentation or for an answer to rebuttal before it was issued is in Violation of Amendment IV" and that defendant Rebeck "Perjured/Falsely." Id. at 10.

Plaintiff claims that defendant Harter refused to remove defendant Thiessen as the trial judge in his WCAB case. Id. at 18. Plaintiff stated that "[t]he Presiding Judge, (defendant Harter) Aided/Abetted in the On-going Process of a Kangaroo Court. Mr. Harter's Absenteeism sanctioned chaos and is responsible for the actions in the Inferior Realm of the Court/allowed Mr. Thiessen to rule in a case that he is Disqualified." Id. at 21.

Plaintiff claims that the co-defendants violated his right to due process and equal protection by implementing one of their own people within the court system and thus manipulating the court proceedings to give them a favorable outcome and to lessen their own liability. Id. at 11. He claims that they failed to oversee the conduct of the defendants in the WCAB action. Id. at 12, 14, 17, 18. Also, plaintiff appears to allege that defendants Harter, Rebeck, and Thiessen violated California Penal Code §§ 471.5 and 475(c). Id . 9.

Although plaintiff fails to provide a specific prayer for relief, he appears to seek damages for violations of his civil rights and for the temporary benefits withheld as a result of his failure to comply with defendant Thiessen's order compelling plaintiff to attend a medical evaluation.

Defendants move to dismiss this action on numerous grounds, asserting that this Court lacks subject matter jurisdiction, the suit is barred by the Eleventh Amendment, the suit is barred by absolute judicial immunity, plaintiff's FAC does not sufficiently raise a substantial federal question, and the case was improperly removed from state court. ECF No. 8 at 19. Plaintiff's "opposition" states "this case is to have a change of venue and be removed to the United States Supreme Court." ECF No. 18 at 1. Plaintiff also ...


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