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Berman v. Circuit Court of Montgomery County Maryland

United States District Court, E.D. California

July 8, 2016

JOHN BERMAN, Plaintiff,
v.
CIRCUIT COURT OF MONTGOMERY COUNTY MARYLAND, Defendant.

          FINDINGS AND RECOMMENDATIONS DISMISSING ACTION WITHOUT LEAVE TO AMEND TWENTY-ONE DAY DEADLINE

          BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff John Berman (“Plaintiff”) proceeds pro se and in forma pauperis in this civil action. Plaintiff’s Complaint, filed on June 20, 2016, is currently before the Court for screening.

         Screening Requirement

         The Court is required to screen complaints brought by persons proceeding in pro per. 28 U.S.C. § 1915(e)(2). Plaintiff’s Complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(ii).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

         Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-1123 (9th Cir. 2012), Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

         Plaintiff’s Allegations

         While difficult to decipher, the Complaint in this case appears to concern a “pre-filing restriction” filed in the Circuit Court of Montgomery County Maryland (“Maryland Court”) prohibiting Plaintiff “from submitting any filing pro se without justification in the Maryland Circuit Court.” (Pl’s Compl. ¶ 7, Doc. 1.)

         Plaintiff alleges that in 2010, the Maryland Circuit Court appointed Plaintiff “guardian of person” Bella Berman, Plaintiff’s Mother. (Compl. ¶ 3.) In July 2012, Plaintiff took Mrs. Berman on a trip to California for a medical evaluation and to visit relatives. (Compl. ¶ 3.) In January 2014, at some time after traveling to California, Judge Robert A. Greenberg and Defendant the Maryland Court ordered Plaintiff to “provide the court with the name(s) and telephone number(s) of at least one gerontologist, located near Bella’s current residence in California” to determine whether it was “safe for Bella to travel by airplane.” (Compl. ¶ 4.) Judge Berman also ordered Plaintiff “as Guardian of the Person for Bella Berman” to provide a HIPAA authorization so that Judge Berman could “speak to the gerontologist before the gerontologist examines Bella.” (Compl. ¶ 4.)

         Plaintiff alleges that he was unable to obtain the requested HIPAA authorization and otherwise comply with the Maryland Court’s order because a medical waiver is a “complex legal document.” (Compl. ¶ 6.)

         In March 2014, after Plaintiff failed to provide the HIPAA authorization, the Maryland Court issued an “Order to Show Cause (“OSC”) why Plaintiff should not be held in constructive civil contempt of the Maryland Court.” (Compl. ¶ 7). Plaintiff claims that he attempted to respond to the OSC but the Court “would not consider his papers” because the Maryland Court instituted a pre-filing restriction prohibiting him from submitting any filing without a pre-filing explanation or justification. (Compl. ¶ 7).

         On March 21, 2014, Defendant Maryland Court issued an arrest warrant for Plaintiff ostensibly for Plaintiff’s failure to comply with the Maryland Court’s order. (Compl. ¶ 7.) Plaintiff filed a writ of mandamus challenging the warrant for his arrest and the pre-filing restriction, but the writ was denied without comment. (Compl. ¶ 8.) Plaintiff later filed appeals to the Maryland Court of Special Appeals and Maryland’s High Court of Appeals but all appellate efforts were denied. Plaintiff alleges that he has currently “exhausted all avenues of review in Maryland Courts.” (Compl. ¶ 8.)

         Plaintiff filed this action on June 20, 2016, in the Eastern District of California on the basis of federal question jurisdiction alleging that Defendant Maryland Court denied his right of due process by imposing the “pre-filing restriction” without notice or hearing. (Compl. ¶ 10.) Plaintiff also alleges that the “imposition of a ‘body attachment’ arrest warrant” was in further violation of his due process. Plaintiff seeks monetary damages, injunctive relief declaring that the ...


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