United States District Court, C.D. California
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
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).
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.
OF THE FIRST AMENDED COMPLAINT
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)
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.
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.
The First Amended Complaint Violates Federal Rule Of Civil
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.
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.
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
Plaintiff Fails To State Any Claim Against Either ...