Cleveland v. United States Department of Agriculture ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY CLEVELAND and No. 1:20-cv-01140-NONE-JLT (PS) CLEVELAND HILL ENDOWMENT, 12 INC., ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING 13 Plaintiffs, THAT PLAINTIFFS’ THIRD AMENDED COMPLAINT BE DISMISSED, WITHOUT 14 v. PREJUDICE 15 DONALD JOHN TRUMP, et al., (Doc. No. 18) 16 Defendants. 17 18 Plaintiff Timothy Cleveland, proceeding pro se and in forma pauperis, filed the complaint 19 commencing this action in the District of Nevada on August 9, 2019, against the United States 20 Department of Agriculture and Secretary of Agriculture George Ervin Purdue. (Doc. No. 4.) 21 This action was transferred to this district on August 17, 2020. (Doc. No. 7.) It now proceeds on 22 plaintiffs’ third amended complaint (“TAC”), filed on April 7, 2021. (Doc. No. 17.) The named 23 plaintiffs are plaintiff Cleveland and plaintiff Cleveland Hill Endowment, Inc., a California non- 24 profit entity. The named defendants are Donald John Trump, defendant Perdue, Kevin Owen 25 McCarthy, Aubrey Bettencourt, Chris Keeler, Connie Conway, John Oosterman, Thomas C. 26 Hunton, Lyanne Mendoza, and Karen Ross. (Id. at 1.) 27 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 28 § 636(b)(1)(B) and Local Rule 302. 1 On April 16, 2021, the assigned magistrate judge issued findings and recommendations 2 recommending that plaintiff’s TAC be dismissed, without prejudice. (Doc. No. 18.) Those 3 findings and recommendations were served on plaintiff and contained notice that any objections 4 thereto were to be filed within thirty (30) days after service. (Id. at 7.) Plaintiff filed objections 5 on May 17, 2021. (Doc. No. 19.) 6 The objections assert that the screening statute of 28 U.S.C. § 1915A(a) concerns cases 7 brought by prisoners. (Doc. No. 19 at 3.) However, the court is also permitted to screen claims 8 brought by plaintiffs proceeding in forma pauperis under 28 U.S.C. § 1915(e)(2). Plaintiff 9 Cleveland is proceeding in forma pauperis, and the court must therefore “dismiss the case at any 10 time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief 11 may be granted[.]” 28 U.S.C. § 1915(e)(2). The pending findings and recommendations 12 recommend that the court find that the TAC fails to state a claim on which relief may be granted. 13 Plaintiffs’ objections discuss at length an article written by the magistrate judge and 14 published in the legal journal Law and Contemporary Problems. (Doc. No. 19 at 4–9.) Plaintiff’s 15 objections do not address the magistrate judge’s reasoning set forth in the pending findings and 16 recommendations. Plaintiff further argues in his objections that the magistrate judge lacks 17 knowledge or experience concerning farming or racial discrimination. (Id. at 9–10.) Again, these 18 conclusory assertions are not objections to the legal reasoning set forth in the pending findings 19 and recommendations . 20 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 21 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 22 magistrate judge’s findings and recommendations are supported by the record and by proper 23 analysis. In prior screening orders, the magistrate judge provided plaintiff with the relevant legal 24 standards governing the claims it appears he is attempting to bring in this action. Nonetheless, 25 plaintiffs’ TAC continues to rest upon many conclusory assertions, including conclusory 26 assertions regarding alleged racial discrimination by the named defendants. The magistrate 27 judge’s recommendation of dismissal is appropriate. 28 //// 1 The court also notes that plaintiff Cleveland Hill Endowment, Inc., appears to be 2 proceeding pro se in this action, as no attorney has made any appearance on its behalf. Entities 3 cannot appear pro se. Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 4 U.S. 194, 201–02 (1993) (“It has been the law for the better part of two centuries, for example, 5 that a corporation may appear in the federal courts only through licensed counsel.”); McShane v. 6 United States, 366 F.2d 286, 288 (9th Cir. 1996) (a non-attorney pro se plaintiff may not 7 represent any other party); United States v. High Country Broad Co., Inc., 3 F.3d 1244, 1245 (9th 8 Cir. 1993) (“A corporation may appear in federal court only through licensed counsel.”); CLD 9 Const. Inc. v. City of San Ramon, 120 Cal. App. 4th 1141, 1145 (2004) (“[A] corporation, unlike 10 a natural person, cannot represent itself before courts of record in propria persona, nor can it 11 represent itself through a corporate officer, director or other employee who is not an attorney. It 12 must be represented by licensed counsel in proceedings before courts of record.”). Accordingly, 13 the claims of plaintiff Cleveland Hill Endowment, Inc. must be dismissed. 14 In addition, the TAC references a separate lawsuit plaintiff Cleveland filed against 15 defendant Hunton and alleges the court erred in that action. (Doc. No. 17 at 4–5.) This lawsuit is 16 not a proper method to attack orders or the judgment of a separate lawsuit. See Mullis v. U.S. 17 Bankr. Court for Dist. of Nev., 828 F.2d 1385, 1393 (9th Cir. 1987) (“[C]ollateral attacks on the 18 judgments, orders, decrees or decisions of federal courts are improper.”). 19 The TAC’s also asserts claims against defendant McCarthy related to defendant 20 McCarthy’s vote not to impeach defendant Trump. (Id. at 9–12.) Under the Constitution’s 21 Speech and Debate Clause, “for any Speech or Debate in either House, [Senators and 22 Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. “The 23 Speech or Debate Clause prohibits inquiry only into those things generally said or done in the 24 House or Senate in the performance of official duties and into the motivation of those 25 acts.” United States v. Helstoski, 442 U.S. 477, 488 (1979) (quoting United States v. 26 Brewster, 408 U.S. 501, 512 (1972)). The scope of the Speech or Debate Clause extends to the 27 “act of voting.” Gravel v. United States, 408 U.S. 606, 617 (1972); accord Jenkel v. City & Cty. 28 of San Francisco, No. C 06-2593 MHP, 2006 WL 2053502, at *8 (N.D. Cal. July 21, 2006) 1 | (dismissing claims brought against Congressperson Nancy Pelosi because plaintiff's “grievances 2 || against Congresswoman Pelosi stems from two votes cast in the House of Representatives”). 3 | Because the TAC asserts claims against defendant McCarthy based on the casting of his votes in 4 | the U.S. House of Representatives, the TAC clearly fails to state a cognizable claim against 5 | defendant McCarthy. 6 Finally, the TAC fails to state a claim under the Civil Rights Act because, as the findings 7 | and recommendations point out, plaintiff does not adequately allege that the allegedly unlawful 8 | conduct upon which he bases his claims was motivated by racial bias. 9 Accordingly, 10 1. The findings and recommendations issued on April 16, 2021, (Doc. No. 18), are adopted 11 in full; 12 2. The third amended complaint (Doc. No. 17) is DISMISSED: and 13 3. The Clerk of the Court is directed to assign a district judge for the purpose of closing this 14 case and to close this case. 15 | IT IS SO ORDERED. a - '6 Dated: _ July 22, 2021 al, A “7 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28