(PS) Van den Heuvel v. Placerville Self Storage ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HEUVEL, No. 2:19-cv-01418-MCE-CKD PS 12 Plaintiff, 13 v. ORDER 14 PLACERVILLE SELF STORAGE, et al., 15 Defendants. 16 17 On November 14, 2019, the undersigned issued an order to show cause why this action 18 should not be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) based 19 on plaintiff’s failure to comply with the court’s previous order and failure to prosecute this case. 20 (ECF No. 8.) Plaintiff was given 14 days from the date of the order to file a first amended 21 complaint in compliance with the court’s October 3, 2019 order. (Id.; see also ECF No. 6.) 22 On December 2, 2019, plaintiff’s first amended complaint was filed. (ECF No. 9.) On 23 December 10, 2019, the court issued an order dismissing the first amended complaint and 24 granting plaintiff leave to amend. (ECF No. 11.) On December 23, 2019, plaintiff filed a first 25 amended complaint. (ECF No. 12.) On December 30, 2019, plaintiff filed another complaint, 26 which the court will address as plaintiff’s second amended complaint. (ECF No. 13.) 27 Plaintiff’s second amended complaint is very similar to his original complaint and names 28 the same defendants: Placerville Self Storage (located in Placerville, California), Steven Rawson 1 (located in Ammon, Idaho), Robert C. Bowman (located in Sacramento, California), Kassie 2 Cardullo (located in Placerville, California), Vern Pierce (location unknown), Judge Kenneth J. 3 Melikian (Superior Court of the County of El Dorado), and Judge Warren C. Strancener (Superior 4 Court of the County of El Dorado). 5 As the basis for jurisdiction, plaintiff again claims he is suing under 42 U.S.C. § 1983 and 6 under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 7 (1971). (ECF No. 13 at 3.) 8 The first five pages of the second amended complaint are identical to the prior complaint 9 the court previously dismissed. The court will therefore repeat its summary from its prior order: 10 Although difficult to understand, it appears plaintiff complains about property he owned that was wrongfully placed in Placerville Self 11 Storage by Steven Rawson, a landlord. (ECF No. [13] at 4.) Plaintiff claims “massive injuries” and cites what appears to be another 12 litigation matter, Heckart v. Self Storage, Inc., as well as California state causes of action for violations of the California Consumers 13 Legal Remedies Act (CAL. CIV. CODE § 1750), negligent misrepresentations, and civil conspiracies. (Id.) According to the 14 complaint, an unnamed party, Rich Tyler, unlawfully gained access to plaintiff’s property located in the storage unit. (Id. (citing a 15 number of California Insurance Code sections).) 16 In support of his Bivens claim(s), plaintiff alleges as follows. “The officials District Attorneys are accountable by the government civil 17 rights violations” and a judge should be held accountable for “conclusive decisions to move forward, and intently [prosecute], and 18 falsely hold accountable inmate #132049 John Mark Van den Heuvel, A.K.A. artisan Jean Marc Van den Heuvel to face the harsh 19 ‘FELONY’ charges that would never be removed off the police records, as of today, November 25, 2019 the felony still in records.” 20 (Id. at 5.) . . . 21 Plaintiff also complains about an unlawful detainer matter involving unnamed party Rodger Musso, an individual who apparently owned 22 plaintiff’s prior residence. (Id. at 5.) 23 Regarding Judge Kenneth J. Melikian, plaintiff alleges that he and other judges have exercised “abusive powers, onto the unsuspecting 24 handicapped persons placed before them in their mutual El Dorado County Courts.” (Id. at 5.) 25 26 (ECF No. 11.) 27 Next, plaintiff appears to allege he had a stroke that led to paralysis and Placerville Self 28 Storage eventually seized plaintiff’s property. (ECF No. 13 at 7.) The remaining allegations, 1 while difficult to follow, appear to focus on plaintiff’s injuries and the property he allegedly lost. 2 (Id. at 7–9.) 3 As with before, plaintiff appears to be complaining about three separate incidents: (1) the 4 taking of his personal property from a storage unit; (2) a criminal matter from May 2017; and 5 (3) an unlawful detainer action. 6 The allegations in the first amended complaint are again insufficient to identify any 7 conceivable federal claim. Plaintiff’s conclusory references to Bivens, the Americans with 8 Disabilities Act, and 42 U.S.C. § 1983 do not establish that any of his claims are federal claims. 9 Further, to the extent plaintiff attempts to assert diversity of citizenship as the basis for 10 this court’s jurisdiction, he again cannot establish that this suit arises under diversity of 11 citizenship given that plaintiff pleads that he and at least one defendant are citizens of California. 12 (See ECF No. 6 at 2–3 (citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 13 (1989).) 14 As with plaintiff’s original and first amended complaints, the court finds the allegations in 15 plaintiff’s second amended complaint so vague and conclusory that it is unable to determine 16 whether the current action is frivolous or fails to state a claim for relief. The court has determined 17 that the first amended complaint does not contain a short and plain statement as required by Fed. 18 R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must 19 give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community 20 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some 21 degree of particularity overt acts which each named defendant engaged in that support plaintiff’s 22 claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), 23 the second amended complaint must be dismissed. The court will, however, grant leave to file a 24 third amended complaint. 25 However, if plaintiff chooses to amend the complaint again, plaintiff must set forth the 26 jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil 27 Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted 28 in a deprivation of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 1 Further, the court will repeat the legal standard regarding named defendants Judge 2 Kenneth J. Melikian and Judge Warren C. Strancener. Plaintiff is again informed that “[j]udges 3 are immune from damage actions for judicial acts taken within the jurisdiction of their courts. . . . 4 Judicial immunity applies ‘however erroneous the act may have been, and however injurious in 5 its consequences it may have proved to the plaintiff.’” Ashelman v. Pope, 793 F.2d 1072, 1075 6 (9th Cir. 1986) (quoting Cleavinger v. Saxner, 474 U.S. 193, 199–200 (1985)). It appears 7 plaintiff seeks monetary relief from both state court judges for actions taken within their 8 jurisdiction—handling an unlawful detainer and/or criminal matter. Such actions are 9 quintessential examples of judicial acts. Therefore, the defendant judges are immune from this 10 suit, “however erroneous the act[s] may have been.” Ashelman, 793 F.2d at 1075. Plaintiff’s 11 proper course of action to redress any alleged erroneous rulings by the defendant judges was to 12 address those rulings in state court. Plaintiff is cautioned that if he attempts to bring claims 13 against Judge Kenneth J. Melikian and Judge Warren C. Strancener, the undersigned will 14 recommend dismissal of the judges without leave to amend. 15 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 16 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 17 complaint be complete in itself without reference to any prior pleading. This is because, as a 18 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 19 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a third amended complaint, the prior complaints 20 no longer serve any function in the case. Therefore, in an amended complaint, as in an original 21 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 22 Finally, plaintiff is again informed that unrelated claims against different defendants must 23 be pursued in separate lawsuits. Here, plaintiff again appears to assert claims regarding three 24 unrelated incidents and names several different defendants in the process. To the extent they are 25 unrelated, plaintiff is again cautioned that they belong in separate lawsuits. See George v. Smith, 26 507 F.3d 605, 607 (7th Cir. 2007). 27 In accordance with the above, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s second amended complaint (ECF No. 13) is dismissed; and 1 2. Plaintiff is granted thirty (30) days from the date of service of this order to file a third 2 || amended complaint that complies with the requirements of the Federal Rules of Civil Procedure, 3 | and the Local Rules of Practice; the third amended complaint must bear the docket number 4 | assigned this case and must be labeled “Third Amended Complaint;” plaintiff must file an 5 | original and two copies of the third amended complaint; failure to file a third amended complaint 6 | in accordance with this order will result in a recommendation that this action be dismissed. 7 | Dated: January 15, 2020 i; dp. | bie 8 CAROLYN K.DELANEY. 9 UNITED STATES MAGISTRATE JUDGE 10 15 heuveli518.sac.lta 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28