Redmond v. United States

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 JOHN DOE, Case No. 22-cv-01107-TSH 8 Plaintiff, ORDER DENYING MOTION TO 9 v. PROCEED ANONYMOUSLY; 10 UNITED STATES OF AMERICA, DENYING MOTION TO APPOINT COUNSEL; GRANTING PLAINTIFF’S 11 Defendant. APPLICATION TO PROCEED IN FORMA PAUPERIS; SCREENING 12 COMPLAINT PURSUANT TO 28 U.S.C. § 1915 (E); DENYING MOTION IN — 13 — DEFENSE OF RICO RACKETEERING 14 FILING 15 I. INTRO DUCTION 16 Plaintiff John Doe brings this case against Defendant United States of America. ECF No. 17 1. On February 22, 2022, Plaintiff filed a Motion to Proceed Anonymously (ECF No. 2), 18 Application to Proceed in Forma Pauperis (ECF No. 3), Motion to Appoint Counsel (ECF No. 5), 19 and Motion in Defense of RICO Racketeering Filing (ECF No. 6). For the reasons stated below, 20 the Court DENIES Plaintiff’s Motion to Proceed Anonymously, Motion to Appoint Counsel, and 21 Motion in Defense of RICO Racketeering Filing. The Court GRANTS Plaintiff’s Application to 22 Proceed in Forma Pauperis but finds the complaint deficient under 28 U.S.C. § 1915 (e). No later 23 than April 25, 2022, Plaintiff must file a first amended complaint curing the deficiencies 24 identified in this screening order or a response arguing why the current complaint is sufficient. If 25 Plaintiff fails to file a response or the response fails to cure the deficiencies addressed herein, the 26 case will be reassigned to a Unites States district judge with a recommendation for dismissal. — 27 — 1 II. BACKGROUND 2 Plaintiff brings this suit against the United States of America, alleging breach of contract, 3 conversion, unjust enrichment, fraudulent misrepresentation, fraudulent concealment, intentional 4 infliction of emotional distress, violation of the Federal Torts Claims Act, and patent infringement. 5 ECF No. 1, Complaint, at ¶¶ 191-297. Plaintiff’s claims arise from an alleged conspiracy among 6 government officials to deprive Plaintiff of a government grant to build electric cars. Id. at 35 . 7 Plaintiff also alleges companies bribe U.S. politicians and deprive the stock market in violation of 8 plaintiff’s civil rights, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and 9 antitrust laws. Id. at 19-20 . Plaintiff claims he reported the conspiracy to the government and was 10 since been targeted and attacked by hackers. Id. at 57, ¶¶ 215-16 . Plaintiff seeks damages and 11 injunctive relief. Id. at 76-77 . 12 III. MOTION TO PROCEED ANONYMOUSLY 13 Plaintiff moves to proceed under the pseudonym “John Doe” out of fear that ex-spy agency 14 contractors have been hired to stalk, harass, and attack plaintiff. ECF No. 2 at 1. 15 “The normal presumption in litigation is that parties must use their real names.” Doe v. 16 Kamehameha Schools/Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010); see 17 also Fed. R. Civ. P. 10(a)(requiring that the title of every complaint “include the names of all the 18 parties”). This presumption is related to the public’s common law right of access to judicial 19 proceedings, Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000), 20 and “the right of private individuals to confront their accusers.” Kamehameha Schools, 596 F.3d 21 at 1042 . Nevertheless, a party may proceed anonymously when “special circumstances justify 22 secrecy.” Advanced Textile Corp., 214 F.3d at 1067 . To determine whether a plaintiff has 23 overcome such presumption, a court considers the follows factors: (1) “the severity of the 24 threatened injury;” (2) “the reasonableness of the anonymous party’s fears;” (3) “the anonymous 25 party's vulnerability to retaliation;” (4) “prejudice at each stage of the proceedings to defendants;” 26 and (5) “the public's interest.” Id. at 1068 . 27 Here, Plaintiff makes broad and conclusory statements regarding his alleged harassment 1 evidence of harassment or stalking. Compare ECF No. 2 at 2 (“I have been previously attacked 2 and have active death threats against me. Private ex-spy agency contractors like Fusion GPS, 3 Media Matters, Black Cube, In-Q-Tel and others have been hired to stalk and harass me online.”) 4 with Kamehameha Schools, 596 F.3d at 1043 (“The Doe children point to threats . . . “jus gonna 5 get lickins everyday” and that these “4 kids ... will need 10 bodyguards lol.” . . . the phone call to 6 their attorney threatening that now “both you and your haole clients can get the lickins' you 7 deserve.”); see also Doe v. Coder, 10-cv-4756-MMC, 2010 WL 4938282 , at *2 (N.D. Cal. Nov. 8 30, 2010) (denying motion to proceed anonymously where “Plaintiff's showing is entirely 9 speculative. Plaintiff has not shown any threat of harm, let alone a threat of “severe harm.”) 10 Plaintiff also does not identify evidence showing his vulnerability, address prejudice at this stage 11 of litigation, or explain how Plaintiff’s use of a pseudonym overrides the public’s interest in 12 viewing public records and documents. Notably, Plaintiff included his name in his Civil Cover 13 Sheet and Application to Proceed in Forma Pauperis. See Doe v. United States Dept. of Health 14 and Human Serv., 517 Fed.Appx. 548, 549 (9th Cir. 2013) (“The district court did not abuse its 15 discretion in denying Doe leave to proceed anonymously where there were insufficiently 16 “unusual” circumstances justifying anonymity, and where Doe failed to redact her true name in 17 documents filed in the district court.”) Accordingly, Plaintiff’s Motion to Proceed Anonymously 18 is DENIED. 19 IV. MOTION TO APPOINT COUNSEL 20 Plaintiff requests the Court appoint counsel because Plaintiff has a disability. ECF No. 5 at 21 2. Plaintiff also asserts appointment of counsel will ensure fairness given that his claims involves 22 a constitutional challenge. Id. at 2-3. 23 There is no constitutional right to counsel in a civil case unless a “litigant may lose his 24 physical liberty if he loses the litigation.” Lassiter v. Dep't of Social Svcs., 452 U.S. 18 , 25 25 (1981); see also Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (“[T]he appointment of 26 counsel in a civil case is . . . a privilege and not a right.”). The Court may under “exceptional 27 circumstances” appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1 determining whether “exceptional circumstances” exist, the Court considers “the likelihood of 2 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 3 of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 4 1983). “Neither of these factors is dispositive and both must be viewed together before reaching a 5 decision on request of counsel.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 6 The Court finds Plaintiff’s circumstances are not “exceptional” under the meaning 7 described above. Given the early stage of litigation, the likelihood of success of Plaintiff’s claims 8 is unclear. Moreover, Plaintiff has demonstrated his ability to conduct legal research and present 9 claims and arguments in writing. See Bernstein v. United States Dep’t of Housing & Urban 10 Development, 20-cv-2983-JSC, 2021 WL 4497872 , at *6 (N.D. Cal. Aug. 16, 2021) (denying 11 motion to appoint counsel where “Plaintiffs’ . . . numerous filings demonstrate that they capable of 12 conducting legal research, presenting claims and arguments in writing, and understanding legal 13 issues.”) Accordingly, the Court DENIES Plaintiff’s Motion to Appoint Counsel. 14 V. IN FORMA PAUPERIS APPLICATION 15 A district court may authorize the start of a civil action in forma pauperis if the court is 16 satisfied the would-be plaintiff cannot pay the filling fees required to pursue the lawsuit. See — 17 — 28 U.S.C. § 1915 (a)(1). Plaintiff submitted the required documentation demonstrating an inability 18 to pay the costs of this action, and it is evident from the application that the listed assets and 19 income are insufficient to enable payment of the fees. Plaintiff is not currently employed, only 20 receives social security, and must cover rent and food expenses. Accordingly, the Court 21 GRANTS the application to proceed in forma pauperis. See Sobayo v. Ally Bank, 20-cv-8470-SI, — 22 — 2021 WL 25049 , at *1 (N.D. Cal. Jan. 4, 2021) (granting in forma pauperis application where 23 plaintiff is not currently employed and receives social security). 24 VI. SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915 (E)(2) 25 A. Legal Standard 26 A court must dismiss an in forma pauperis complaint before service of process if it is 27 frivolous, fails to state a claim, or contains a complete defense to the action on its face. 28 U.S.C. 1 12(b)(6) regarding dismissals for failure to state a claim. See id.; see also Lopez v. Smith, 203 2 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege facts that plausibly 3 establish each defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). 4 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 5 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 6 Iqbal, 556 U.S. 662, 678 (2009). 7 A complaint must also comply with Federal Rule of Civil Procedure 8, which requires the 8 complaint to contain “a short and plain statement of the claim showing that the pleader is entitled 9 to relief.” Fed. R. Civ. P. 8(a)(2). “While the federal rules require brevity in pleading, a 10 complaint nevertheless must be sufficient to give the defendants ‘fair notice’ of the claim and the 11 ‘grounds upon which it rests.’” Coleman v. Beard, 2015 WL 395662 , at *4 (N.D. Cal. Jan. 29, 12 2015) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). A complaint that fails to state a 13 defendant’s specific acts “that violated the plaintiff’s rights fails to meet the notice requirements of 14 Rule 8(a).” Medina Chiprez v. Becerra, 2020 WL 4284825 , at *3 (N.D. Cal. July 27, 2020) 15 (citing Hutchinson v. United States, 677 F.2d 1322 , 1328 n.5 (9th Cir. 1982)). 16 Plaintiff is proceeding without representation by a lawyer. While the Court must construe 17 the complaint liberally, see Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984), it may not add to 18 the factual allegations in the complaint, see Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 19 Litigants unrepresented by a lawyer remain bound by the Federal Rules and Local Rules of this 20 District. See N.D. Cal. Civ. L.R. 3-9(a). 21 B. Application 22 Rule 8 23 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that the complaint set forth a 24 “short and plain statement of the claim showing the pleader is entitled to relief.” Rule 8(d)(1) 25 requires that each allegation in a pleading be “simple, concise, and direct.” See McHenry v. 26 Renne, 84 F.3d 1172, 1177, 1179 (9th Cir. 1996) (affirming dismissal of complaint that was 27 “argumentative, prolix, replete with redundancy, and largely irrelevant”). The failure to comply 1 merit. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). Accordingly, even claims which 2 are not on their face subject to dismissal under Rule 12(b)(6) may still be dismissed for violating 3 Rule 8(a). Id. 4 In addition, the complaint must include facts which are “more than labels and conclusions, 5 and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 6 Twombly, 550 U.S. 554, 555 (2007). In Ashcroft v. Iqbal, the Supreme Court rejected conclusory 7 assertions that “petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject 8 [him]’ to harsh conditions of confinement ‘as a matter of policy, solely on the account of [his] 9 religion, race, and/or national origin and for no legitimate penological interest.’” 556 U.S. 662 , 10 680 (2009). The Court reasoned that such allegations were akin to the “formulaic recitation of the 11 elements” dismissed in Twombly, and therefore, insufficient to meet Rule 8(a). Id. In doing so, 12 the Court explained, “[a] claim has facial plausibility when the plaintiff pleads factual content that 13 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Id. at 678 . 15 Although Plaintiff’s complaint is lengthy, it lacks sufficient detail regarding the nature of 16 Plaintiff’s specific claims. See, e.g., Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 17 F.3d 1047 , 1059 (9th Cir. 2011) (stating that “Rule 8(a) has been held to be violated by a pleading 18 that was needlessly long, or a complaint that was highly repetitious, or confused, or consisted of 19 incomprehensible rambling.”); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 20 1981) (holding that Rule 8(a) is violated when a complaint is excessively “verbose, confusing and 21 almost entirely conclusory”); Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir. 1980) 22 (upholding a Rule 8(a) dismissal of “confusing, distracting, ambiguous, and unintelligible 23 pleadings”). Plaintiff’s complaint presents “no cognizable legal theory [and] an absence of 24 sufficient facts alleged to support a cognizable legal theory,” and is therefore subject to dismissal 25 under 28 U.S.C. § 1915 (e). Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 , 1041 26 (9th Cir. 2010). 27 Plaintiff’s pro se status does not relieve him of conformity to the pleading rules. See, e.g., 1 *1 (N.D. Cal. Dec. 18, 2017). Accordingly, the Court finds dismissal appropriate because the 2 complaint fails to state a claim upon which relief can be granted. However, given Plaintiff’s pro 3 se status and because it is not clear that the deficiencies of the complaint could not be cured by 4 amendment, the Court shall grant Plaintiff the opportunity to file an amended complaint. 5 Immunity 6 Plaintiff names the United States of America as defendant and claims government officials 7 conspired against him. ECF No. 1 at 51-57. The Court advises Plaintiff that certain government 8 entities and individuals are immune from suit. 9 Generally, “[s]overeign immunity shields the United States from suit absent a consent to 10 be sued that is ‘unequivocally expressed.’” United States v. Bormes, 568 U.S. 6 , 9–10 (2012) 11 (quoting United States v. Nordic Vill., Inc., 503 U.S. 30 , 33–34, (1992)). “Congress has enacted 12 several broad waivers of the United States’ sovereign immunity.” Navajo Nation v. Dep’t of the 13 Interior, 876 F.3d 1144, 1168 (9th Cir. 2017). A waiver of sovereign immunity cannot be implied 14 but must be unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538 (1980) 15 (citation, alterations, and internal quotation marks omitted). 16 Moreover, public officials may be entitled to qualified immunity. “Qualified immunity is 17 an affirmative defense to damage liability” and “federal officials are immune from liability for 18 damages ‘insofar as their conduct does not violate clearly established statutory or constitutional 19 rights of which a reasonable person would have known.’” The Presbyterian Church (U.S.A.) v. 20 United States, 870 F.2d 518, 527 (9th Cir. 1989) (internal citation omitted). 21 In Plaintiff’s amended complaint, Plaintiff must clarify who he intends to sue. 22 RICO Claims 23 Plaintiff filed a Motion in Defense of RICO Racketeering Filing requesting the Court give 24 “a validation of the finding that Plaintiff’s case may have merit to be filed as a RICO 25 Racketeering” matter. The Court declines to evaluate the merits of Plaintiff’s RICO claims and 26 DENIES Plaintiff’s Motion in Defense of RICO Racketeering Filing. The Court advises Plaintiff 27 on the general elements of a civil RICO claim. 1 (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) 2 causing injury to the plaintiff's ‘business or property.’” Abcarian v. Levine, 972 F.3d 1019 , 1027 3 (9th Cir. 2020). “Additionally, 18 U.S.C. § 1964 (c) imposes a standing requirement: a plaintiff 4 must show that the RICO violation proximately caused an injury to his business or property.” 5 Thomas v. Baca, 308 Fed. Appx. 87, 88 (9th Cir. 2009). 6 VII. CONCLUSION 7 For the reasons above, the Court DENIES Plaintiff’s Motion to Proceed Anonymously, 8 Motion to Appoint Counsel, and Motion in Defense of RICO Racketeering Filing. The Court 9 GRANTS Plaintiff’s Application to Proceed in Forma Pauperis but finds the complaint deficient 10 under 28 U.S.C. § 1915 (e). No later than April 25, 2022, Plaintiff must file a first amended 11 complaint curing the deficiencies identified in this screening order or a response arguing why the 12 current complaint is sufficient. 13 A. REQUIREMENTS FOR AMENDED COMPLAINT 14 Because an amended complaint replaces the previous complaint, any amended may not 15 incorporate claims or allegations in the original complaint by reference. See Ferdik v. Bonzelet, — 16 — 963 F.2d 1258, 1262 (9th Cir. 1992). Instead, any amendment must include all of the facts and 17 claims to be presented and all of the defendants that are to be sued. In addition, any amended 18 complaint must include the following sections: 19 Caption Page On the first page, list the names of the defendant(s), the case number 20 used in this order (3:22-cv-01107 TSH), the title (“FIRST AMENDED COMPLAINT”), and write “Demand for Jury Trial” if 21 you want your case to be heard by a jury. 22 Subject Matter Jurisdiction The first numbered paragraph in your complaint (labeled 23 “Jurisdiction”) should explain why this Court has the power to decide this kind of case. A federal court can hear a case based on a federal 24 question jurisdiction (a violation of federal law under 28 U.S.C. § 1331 ) or diversity jurisdiction (when all plaintiffs and all defendants 25 are citizens of different states disputing more than $75,000) under 28 U.S.C. § 1332 . — 26 — Parties 27 In separate paragraphs, identify the plaintiff(s) and the defendant(s) 1 Statement of Facts Explain the important facts in your case in numbered paragraphs, 2 describing how the defendant(s) violated the law and how you have 3 been injured. Claims 4 Include a separate heading for each legal claim (Claim 1, Claim 2, etc.), identifying the specific law that you think the defendant(s) 5 violated and explaining what each defendant did to violate each law. 6 || B. RESOURCES 7 Plaintiff may wish to seek assistance from the Legal Help Center, a free service offered by 8 the Justice & Diversity Center of the Bar Association of San Francisco. You may request an 9 appointment by emailing fedpro @sfbar.org or calling 415-782-8982. At the Legal Help Center, 10 || you will be able to speak with an attorney who may be able to provide basic legal help but not 11 representation. More information is available at http://cand.uscourts.gov/helpcentersf. gz 12 Plaintiff may also wish to obtain a copy of this District’s Handbook for Litigants Without a 13 Lawyer, which provides instructions on how to proceed at every stage of your case. The 14 || handbook is available in person at the Clerk’s Office and online at: © 15 http://cand.uscourts.gov/prosehandbook. 16 IT IS SO ORDERED. = 17 18 || Dated: March 17, 2022 19 TAA. THOMAS S. HIXSON 20 United States Magistrate Judge — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —