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Davis v. Unruh

United States District Court, S.D. California

August 3, 2016

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 ...


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