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Kimbell v. Benner

United States District Court, C.D. California

February 26, 2018

ROBIN DUBOC KIMBELL, Plaintiff,
v.
DR. STEPHEN BENNER, et al., Defendants.

          MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On June 28, 2017, plaintiff Robin Duboc Kimbell (“Plaintiff”), a California resident proceeding pro se, filed a civil rights complaint (Dkt. No. 1), which the Court dismissed with leave to amend due to defects in pleading (Dkt. No. 10). Pending before the Court is Plaintiff's First Amended Complaint (“FAC”). (Dkt. No. 13).

         Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). The court may dismiss such a complaint, or any portion of it, before service of process if it concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). For the reasons stated below, the First Amended Complaint is DISMISSED with leave to amend.[1]

         II.

         ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

         The facts underlying the Complaint and the First Amended Complaint are largely the same. Plaintiff's forty-one page First Amended Complaint asserts nine different claims against eighteen Defendants. Many of the Defendants are government officials of the United States and the Republic of Austria, including the Austrian minister of justice, several United States Attorneys, and officials in the United States Department of Justice. Plaintiff also sues her former husband and a United States District Judge. Specifically, the First Amended Complaint names: (1) Dr. Stephen Benner, Minister of Justice, Republic of Austria; and (2) Dr. Peter Seda, Public Prosecutor, Vienna Municipal Criminal Court (collectively, “Austrian Defendants”). (FAC ¶¶ 4-5). The First Amended Complaint also names: (3) F. Michael Patterson, United States Attorney, Northern District of Florida; (4) J.D. Roy Atcheson, Unites States Attorney, Northern District of Florida; (5) Thomas F. Kirwin, Assistant United States Attorney, Northern District of Florida; (6) Randall J. Hensel, Assistant United States Attorney, Northern District of Florida; (7) Robert J. Stinson, Assistant United States Attorney, Northern District of Florida; (8) Gregory R. Miller, United States Attorney, Northern District of Florida; (9)Linda M. Samuel, Assistant United States Attorney, Northern District of Florida; (10) Dave McGee, Assistant United States Attorney, Northern District of Florida; (11) Mary Ellen Warlow, Director, Office of International Affairs, United States Department of Justice; (12) Kendall Day, Chief, Asset Forfeiture, United States Department of Justice; (13) Maurice M. Paul (deceased), District Court Judge; (14) Robert Davies, Assistant United States Attorney, Northern District of Florida; (15) James Hankinson, Assistant United States Attorney, Northern District of Florida; and (16) Michael J. Burke, Trial Attorney, United States Department of Justice (collectively, “Federal Defendants”). (FAC ¶¶ 6-18, 21). Finally, the First Amended Complaint names (17) Claude Louis Duboc (“Duboc”), Plaintiff's former husband, and (18) the Banque Gutmann Administrators (“Banque Gutmann”), Vienna, Austria. (FAC ¶¶ 19-20). All Defendants are sued in their official capacities. (FAC ¶¶ 4-21)

         The First Amended Complaint's allegations concern the forfeiture of an Austrian bank account that was seized in connection with the criminal conviction of Plaintiff's former husband. Plaintiff asserts she was an innocent spouse and was entitled to the funds based on certain agreements with her former husband. She claims that by executing the forfeiture, Defendants violated her civil rights pursuant to 42 U.S.C. § 1983, conspired to violate her civil rights pursuant to 42 U.S.C. § 1985, as well as engaged in the wrongful taking and retention of property, fraud, breach of contract, intentional infliction of emotional distress, and other statutory and tort claims.

         III.

         DISCUSSION

         Under 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff's First Amended Complaint due to multiple pleading defects. However, the Court must grant a pro se litigant leave to amend her defective complaint unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted). Accordingly, for the reasons stated below, the First Amended Complaint is DISMISSED with leave to amend.[2]

         A. The First Amended Complaint Violates Federal Rule Of Civil Procedure 8

         Federal Rule of Civil Procedure 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and alteration omitted). Each claim must be simple, concise, and direct. Fed.R.Civ.P. 8(d)(1). Rule 8 can be violated when “too much” or “too little” is said. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013).

         Here, the First Amended Complaint does not comply with Rule 8. Plaintiff does not clearly and concisely identify the nature of each of her legal claims, the specific facts giving rise to each claim, and the specific conduct of each Defendant or Defendants against whom each claim is brought. The First Amended Complaint is not a short and plain statement of Plaintiff's claims. Rather, it consists of rambling, repetitious and largely incoherent statements. It includes unnecessarily long and often irrelevant factual allegations and extraneous argument. Instead of focusing and narrowing the claims in her Complaint, Plaintiff's First Amended unnecessarily contains over 40 pages and 125 paragraphs. Consequently, the FAC fails to provide a simple, concise and direct statement of each violation alleged. Thus, the First Amended Complaint fails to provide Defendants with fair notice of the claims in a short, clear and concise statement. See Twombly, 550 U.S. at 555. Accordingly, the First Amended Complaint is dismissed, with leave to amend.

         Dismissal is appropriate based solely on Plaintiff's failure to comply with Rule 8. However, to the extent that the Court is able to discern claims that Plaintiff may be attempting to raise, the Court reviews these claims and the relevant law below.

         B. Plaintiff Fails To State Any Claim Against Either ...


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