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Cleveland v. Hunton

United States District Court, E.D. California

March 24, 2017

TIMOTHY CLEVELAND, Plaintiff,
v.
THOMAS C. HUNTON, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM (ECF No. 12) OBJECTIONS DUE WITHIN TWENTY DAYS.

         On November 16, 2016, Plaintiff Timothy Cleveland (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. (ECF No. 1.) On December 19, 2016, the complaint was screened and dismissed for failure to state a claim. (ECF No. 6.) Plaintiff was granted leave to file an amended complaint within thirty days. On January 25, 2017, Plaintiff filed a first amended complaint which was stricken from the record because it was not signed. (ECF Nos. 7, 8.) On February 2, 2017, Plaintiff filed a first amended complaint that was screened and dismissed for failure to state a claim. (ECF No. 10, 11.) On March 14, 2017, Plaintiff filed the second amended complaint that is currently before the Court. (ECF No. 12.)

         I.

         SCREENING REQUIREMENT

         The district court must perform a preliminary screening and must dismiss a case if at any time the Court determines that the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners). In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that] pleads facts that are ‘merely consistent with' a defendant's liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.

         II.

         SECOND AMENDED COMPLAINT ALLEGATIONS

         Plaintiff is a Tribal African American and brings this action against Defendants Thomas Vilsack, Thomas Hunton, Oscar Gonzales, and Carl Martin-Ruiz. (Sec. Am. Compl. 1, ECF No. 12.) Plaintiff alleges violations of the Equal Credit Opportunity Act, the Administrative Procedures Act, Title VI of the Civil Rights Act of 1964, Executive Orders 12875 and 12898, the National Environmental Policies Act, and the Tucker Act and seeks a determination under the Takings Clause of the Fifth Amendment that the complaint is appropriate to forward to the Federal Court of Claims. (Sec. Am. Compl. 1.) Plaintiff's second amended complaint sets forth causes of action for the Equal Credit Opportunity Act, the Administrative Procedures Act, and Title VI of the Civil Rights Act of 1964 which generally contain conclusory allegations of wrong doing by the various defendants.

         Based on the allegations in the complaint, Plaintiff received a micro loan in the amount of $15, 000 from the Farm Services agency in 2014 and Defendant Hunton, a Farm Service Agency Senior Loan Officer, knew or should have known that the term of loan may exceed 18 months in unusual situations such as establishing a new enterprise. (Sec. Am. Compl. 2.) Prior to signing the loan documents, Defendant Hunton told Plaintiff that the regulations only allowed a maximum of 18 months for loan terms. (Sec. Am. Compl. 2.) Plaintiff later discovered that this information was false. (Sec. Am. Compl. 2.) Plaintiff's property and personal credit were damaged as a result of the deprivation of the opportunity to develop livestock for the production of egg products to sell. (Sec. Am. Compl. 2.)

         Plaintiff filed an appeal of the decision to terminate his loan which was heard by National Appeals Division Administrative Judge Caroline Pyrz. (Sec. Am. Compl. 2.) Defendant Hunton had reported a land value of zero for Plaintiff's property. (Sec. Am. Compl. 2.) Defendant Hunton failed to demonstrate such a land valuation. (Sec. Am. Compl. 2.) Judge Pyrz determined that the Agency action to terminate Plaintiff's loan was not erroneous. (Sec. Am. Compl. 2.)

         Plaintiff alleges that Defendants Martin-Ruiz and Gonzales used Plaintiff's proprietary information for public use without compensation. (Sec. Am. Compl. 2-3.) Defendants Martin-Ruiz and Gonzales did not compensate or identify Plaintiff's business in NPR USDA Outreach story when performing USDA African American outreach activities from April 2016 to September 2016. (Sec. Am. Compl. 3.) Plaintiff provided scientific data from the National Institute of Health, University of California Los Angeles Nephrology Department on the incidence of chronic kidney disease in association with the 2007 and 2012 census for agriculture that indicated no African American participation in Kern County. (Sec. Am. Compl. 3.)

         Plaintiff alleges this information provided abundant documentary evidence of the disparate impact of the Farm Services Agency under the authority of Defendant Vilsack. (Sec. Am. Compl. 3.)

         Plaintiff contends that the Farm Service Agency failed to investigate Plaintiff's complaints. (Sec. Am. Compl. 3.) Plaintiff is continuing to be deprived of his right to provide agricultural products and services to the African American community due to discrimination by the USDA office located in Kern County, California. (Sec. Am. Compl. 3.) This creates a public health risk to Plaintiff and the African American community. (Sec. Am. Compl. 3.) Plaintiff is seeking $3 million for the failure to investigate the public health risk of chronic kidney disease due discrimination against African Americans. (Sec. Am. Compl. 3.) The current African American participation rate in California is .03 percent. (Sec. Am. Compl. 3.)

         In March 2016, National Appeals Division Administrative Judge Justin Oliver issued a final determination finding that the adverse decision was erroneous. (Sec. Am. Compl. 4.) Plaintiff alleges that Defendant Gonzales failed to act following the final determination. (Sec. Am. Compl. 4.) Due to the failure to act, Plaintiff contends he has suffered extensive property damage, damage to his personal credit rating, and an inability to participate in USDA loan programs. (Sec. Am. Compl. 4.) The Farm Service Agency has continued to decline consideration of any loan application from Plaintiff on the ground that 7 C.F.R. 764.401(b)(1) “prohibits FSA loan officials from making a loan if the operation plan is not feasible.” (Sec. Am. Compl. 4.)

         III.

         DISCUSSION

         Plaintiff sets forth three causes of action in his second amended complaint: violation of the Equal Credit Opportunity Act, Title VI of the Civil Rights Act of 1964, and the Administrative Procedures Act and seeks for the Court to determine that this action is appropriate to be heard in the Federal Court of Claims.

         A.Takings Clause of the Fifth Amendment

         Plaintiff alleges that Defendants Martin-Ruiz and Gonzales used Plaintiff's proprietary information for public use without compensation. (Sec. Am. Compl. 2-3.) The Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation. The Takings Clause of the Fifth Amendment ‘limits the government's ability to confiscate property without paying for it, ' and “is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir. 2003) (internal quotations and citation omitted).

         Although in the two prior orders dismissing Plaintiff's complaints for failure to state a claim, he has been advised that he must state the specific facts on which he states his claims, Plaintiff has not identified any propriety information on which he bases his takings claim. Plaintiff states that Defendants Martin-Ruiz and Gonzales did not compensate or identify Plaintiff's business in NPR USDA Outreach story when performing USDA African American outreach activities from April 2016 to September 2016. (Sec. ...


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