United States District Court, S.D. California
GAVIN B. DAVIS, Plaintiff,
v.
JOHN GREGORY UNRUH, et al., Defendants.
Gavin
B. Davis, Plaintiff, Pro Se.
ORDER: 1) DISMISSING CIVIL ACTION PURSUANT TO
Fed.R.Civ.P. 8(a) AND FOR FAILING TO STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2) AND 2) DENYING ALL PENDING MOTIONS
AS MOOT [Doc. Nos. 48, 50, 52, 54]
BARRY
TED MOSKOWITZ, District Judge.
Plaintiff
is proceeding pro se and has been granted leave to proceed in
forma pauperis in this civil action (Doc. No. 27), which he
first filed on April 14, 2016 (Doc. No. 1.)
I.
Procedural History
On May
16, 2016, the Court dismissed Plaintiff Complaint without
prejudice because it failed to comply with FED. R. CIV. P.
8(a), but granted him leave to amend. ( Id. at 4.)
At the same time, the Court denied Plaintiff's Motion for
Appointment of Counsel, a Motion to E-File, a Motion for
Temporary Restraining Order, a Motion to Compel, and a
Petition for Writ of Mandate. ( Id. at 4-5.)
Plaintiff was advised that the Court would not accept for
filing any documents other than a request for extension of
time until he filed an Amended Complaint. ( Id. at
5.)
On July
21, 2016, Plaintiff filed a 159-page First Amended Complaint
("FAC") (Doc. No. 45), together with 172 pages of
lodged exhibits (Doc. No. 45-1.) As far as the Court can
decipher, just as he did in his original Complaint, Plaintiff
seeks to sue several private parties, including his wife
Lindsay, the Superior Court of the County of San Diego, two
Judges, three attorneys, a local law firm, the San Diego
Police Department, the San Diego District Attorney, the San
Diego County Public Defender, and a Deputy Public Defender
based on allegations that they have committed acts of
perjury, colluded and conspired against him, and have
defrauded him in ongoing San Diego Superior Court family and
criminal law proceedings involving the dissolution of his
marriage, the non-disclosure of assets involving family
trusts, child custody, visitation, support obligations, and
real property disputes. See FAC (Doc. No. 45) at
1-2, 10-16.
Plaintiff's
FAC alleges federal question jurisdiction pursuant to 28
U.S.C. § 1343, 42 U.S.C. § 1985 (Ku Klux Clan Act), as well
as a host of other miscellaneous federal civil and criminal
statutes, and IRS regulations. Id. at 17-45. He
further seeks supplemental jurisdiction over state law claims
pursuant to various provisions of the California Government
Code, id. at 27-30, and other "Iowa Statutes of
Relevancy." Id. at 30-33.
In
addition to his FAC, Plaintiff has filed a Motion for Summons
(Doc. No. 48), and has re-submitted his previously filed
Motion to Electronically File Documents (Doc. No. 50), Motion
for Appointment of Counsel (Doc. No. 52), and Motion for a
Temporary Restraining Order (Doc. No. 54), in which he seeks
to enjoin Defendant San Diego Superior Court Judge Paula
Rosenstein, who is currently presiding over his family law
and miscellaneous civil matters, from
"rubber-stamping" proposed orders submitted by
Defendant McArthur, his wife's attorney, in San Diego
Superior Court Case No. D555614. Id. at 6-7.
I.
Screening of Amended Complaint pursuant to 28 U.S.C. §
1915(e)(2)
A.
Standard of Review
The
court must subject each civil action in which the Plaintiff
is proceeding IFP pursuant to 28 U.S.C. § 1915(a) to a
mandatory screening, and order the dismissal of any case it
finds "frivolous, malicious, failing to state a claim
upon which relief may be granted, or seeking monetary relief
from a defendant immune from such relief." 28 U.S.C. §
1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. §
1915(e) "not only permits but requires" the court
to sua sponte dismiss an in forma pauperis complaint that
fails to state a claim); Calhoun v. Stahl, 254 F.3d
845, 845 (9th Cir. 2001) (per curiam) (holding that "the
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to
prisoners").
Plaintiff
is appearing pro se; consequently, the Court has and will
continue to liberally construe his pleadings. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
court also recognizes that "[u]nless it is absolutely
clear that no amendment can cure the defect... a pro se
litigant is entitled to notice of the complaint's
deficiencies and an opportunity to amend prior to dismissal
of the action." Lucas v. Dep't of Corr., 66
F.3d 245, 248 (9th Cir.1995); see also Crowley
v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).
Nevertheless,
a complaint is subject to dismissal if it fails to
"contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Weber v.
Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th
Cir. 2008). This tenet-that the court must accept as true all
of the allegations contained in the complaint-"is
inapplicable to legal conclusions." Iqbal, 556
U.S. at 678. Accordingly, "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. (citing
Twombly, 550 U.S. at 555). Rather, "[a] claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 1949 (citing Twombly,
550 U.S. at 556). Factual allegations that only permit the
court to infer "the mere possibility of misconduct"
do not show that the pleader is entitled to relief as
required by Rule 8. Id. at 679.
Complaints
must also comply Federal Rule of Civil Procedure 8, which
requires that each pleading include a "short and plain
statement of the claim, " FED. R. CIV. P. 8(a)(2), and
that "each allegation must be simple, concise, and
direct." FED. R. CIV. P. 8(d)(1). A district court may
dismiss a complaint for failure to comply with Rule 8 where
it fails to provide the defendant fair notice of the wrongs
allegedly committed. SeeMcHenry v. Renne,84 F.3d 1172, 1178-80 (9th Cir. 1996) (upholding Rule 8(a)
dismissal of complaint that was "argumentative, prolix,
replete with redundancy, and largely irrelevant");
Cafasso, United States ex rel. v. General Dynamics C4
Systems, Inc.,637 F.3d 1047, 1059 (9th Cir. 2011)
(citing cases upholding Rule 8 dismissals where pleadings
were "verbose, " "confusing, "
"distracting, ambiguous, and unintelligible, "
"highly repetitious, " and comprised of
"incomprehensible rambling, " and noting that
"[o]ur ...