Williams v. Vista ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRINCE PAUL RAYMOND WILLIAMS, Case No. 1:21-cv-01661-JLT-SAB 12 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AN 13 v. AMENDED COMPLAINT 14 J. VISTA, et al., (ECF No. 1) 15 Defendants. THIRTY DAY DEADLINE 16 17 Prince Paul Raymond Williams (“Plaintiff”), proceeding pro se and in forma pauperis, 18 filed this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is 19 Plaintiff’s complaint, filed on November 17, 2021. (ECF No. 1.) 20 I. 21 SCREENING REQUIREMENT 22 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 23 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 24 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 25 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 26 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 27 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 1 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 2 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 3 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 4 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 5 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 6 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 7 In determining whether a complaint fails to state a claim, the Court uses the same 8 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 9 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. 10 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 13 544, 555 (2007)). 14 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 15 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 16 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 17 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 18 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 19 short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting 20 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 21 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 22 alleged. Iqbal, 556 U.S. at 678. 23 II. 24 COMPLAINT ALLEGATIONS 25 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 26 the sua sponte screening requirement under 28 U.S.C. § 1915. 27 Plaintiff brings this action against Defendants J. Vista (“Vista), Janet Ziadeh (“Ziadeh”), 1 (“Sprauge”), and Tiffany Brubeck (“Brubeck”) (collectively “Defendants”), and proffers he is 2 suing these Defendants for violations of his right to be free from deprivation of life, liberty, or 3 property without due process and equal protection of the laws. (Compl. 1-3,1 ECF No. 1.) 4 Plaintiff alleges both federal question jurisdiction, and diversity jurisdiction. (Id. at 3-4.) 5 Plaintiff submits the complaint under the First, Fourth, Fifth, Sixth, Seventh, Eighth, and 6 Fourteenth Amendments of the United States Constitution, as well as under 15 U.S.C. § 645, 18 7 U.S.C. § 241, 18 U.S.C. § 242, 18 U.S.C. § 245, 18 U.S.C. § 1001, 18 U.S.C. § 1035, 18 U.S.C. 8 § 1341, 18 U.S.C. § 1346, 18 U.S.C. § 912, 18 U.S.C. § 1951, 18 U.S.C. § 1957, 18 U.S.C. § 9 1581, 18 U.S.C. § 1503, 18 U.S.C. § 1512, 31 U.S.C. § 3729, 19 U.S.C. § 1592, Civil Code § 10 1572, Penal Code § 529, 25 C.F.R. § 11.448, 31 U.S.C. § 3720D, 42 U.S.C. § 1994, 28 U.S.C. § 11 4101, 15 U.S.C. § 1692c, 15 U.S.C. § 1692e, 15 U.S.C. § 1692f, 15 U.S.C. § 1692g, 15 U.S.C. § 12 1692h, 15 U.S.C. § 1692i, 15 U.S.C. § 1692j, 5 U.S.C. § 3331, 31 U.S.C. § 3720D, 42 U.S.C. § 13 1983, as well as bringing claims for intentional infliction of emotional distress, and negligence. 14 (Id. at 1-2.) Plaintiff brings a total of twenty-three (23) individual counts for relief. (Id.) 15 Plaintiff alleges that “Defendants conspired with Plaintiff’s former employers, to subject 16 him to the unlawful practice of forcing him, as a condition of employment, to participate in and 17 enforce a program requirement work-performance contract through wage garnishments in 18 exchange for his labor, as a means of enrichment for the State Disbursement Unit, and repayment 19 of two [2] separate alleged accounts of debt without affording due process and equal protection 20 of the laws.” (Id. at 3.) 21 Plaintiff worked for Aetna as a Health Concierge beginning approximately August 27, 22 2018. (Compl. 5.) On or about September 24, 2018, Plaintiff, through his work email, was 23 provided two four-page documents entitled “INCOME WITHHOLDING FOR SUPPORT,” 24 dated September 1, 2018. (Id.) The first document stated the total amount to withhold from his 25 paycheck was $413.00 per month, and the name of the Judge or issuing official was Defendant 26 Brubeck. The second document stated the total amount to withhold was $150.00 per month, and 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 had the name of the Judge or issuing official as J. Vista. Plaintiff alleges his wages were 2 garnished bi-weekly beginning in September of 2018, until his termination in November of 2019. 3 (Id.) 4 Plaintiff alleges he was evicted on September 30, 2019, because he could not afford his 5 living expenses as a result of the wages being withheld. (Id.) On October 7, 2019, Plaintiff 6 provided a complaint to Aetna via email, wherein he described the harmful effects of the 7 garnishment, and “harassment from his immediate supervisor.” (Id.) On November 8, 2019, 8 Plaintiff was terminated from his employment. (Id.) 9 On January 30, 2020, Plaintiff issue a complaint to the Department of Child Support 10 Services. (Compl. 6.) On January 21, 2020, the Department of Child Support Services Deputy 11 Direct Sprague and Director Gilbert replied via mail, stating the allegations do not meet the 12 requirement elements required to establish an investigation. (Id.) 13 On January 4, 2021, Plaintiff began working for Southwest Traders. On January 15, 14 2021, Plaintiff suffered a lower back injury from slipping on black ice while working. On 15 February 1, 2021, Plaintiff was provided via email with two additional wage withholding 16 documents in the amounts of $413.00 and $30.00 per month, respectively, one containing the 17 name of the Judge or issuing official as Defendant Moua, and the other with Defendant Ziadeh. 18 (Id.) 19 Plaintiff received a letter dated February 2, 2021, addressed the Zurich American 20 Insurance Company, stating the IWO requires a deduction of earnings. (Compl. 7.) Plaintiff 21 states that on February 15, 2021, he received an email from Thomas Zhou, a claims examiner, 22 stating a check would be mailed in the amount of $671.02, and he subsequently received a check 23 in the amount of $479.30. On March 4, 2021, Plaintiff sent a complaint to the Department of 24 Child Support Services. On March 9, 2021, Defendant Sprague replied via mail stating the 25 relevant balances owed did not pertain to a loan, but to a court ordered obligation to pay child 26 support. On March 25, 2021, Plaintiff resigned due to physical and financial injuries. 27 On July 27, 2021, Plaintiff began working for Drakaina Logistics as an Amazon delivery 1 employees. (Compl. 7-8.) The documents contained the names of the Judge or issuing official 2 as Defendants Keokominh and Ziadeh. (Id.) On September 7, 2021, Plaintiff provided Drakaina 3 Logistics with notice of possible violations of law relating to the garnishments. (Compl. 8.) On 4 September 10, 2021, Plaintiff’s wages were garnished, and on the same date, Plaintiff informed 5 Drakaina Logistics of a notice of intent to sue. Plaintiff’s wages were garnished again on 6 September 24, 2021. 7 On October 5, 2021, Plaintiff provided Defendants Keokominh and Ziadeh with a notice 8 demanding they cease and desist from seizing his property. On October 8, 2021, Plaintiff’s 9 wages were again garnished. On that date, Plaintiff was terminated as a result of inquiring about 10 the possible violation of law and company policy. (Compl. 9.) On October 11, 2021, Plaintiff 11 provided notice of his intent to sue Defendants Keokominh and Ziadeh. On October 19, 2021, 12 Plaintiff provided Defendants Burbeck and Vista with a notice to return property, and on October 13 25, 2021, notified them of his intent to sue. 14 Plaintiff alleges that Defendants’ program requirement “is enforced by a local Child 15 Support Enforcement [CSE] Agency, not a Court,” that the program “does not contain a 16 signature by a judge of competent jurisdiction,” and that Defendants “are child support 17 representatives impersonating a judicial officer with intent to defraud Plaintiff.” (Compl. 9.) 18 For the reasons discussed below, Plaintiff has failed to state a claim for a violation of his 19 federal rights. Plaintiff shall be provided the opportunity to file an amended complaint to correct 20 the deficiencies at issue. 21 III. 22 DISCUSSION 23 After setting forth the specific factual allegations summarized above, Plaintiff then brings 24 twenty-three (23) individual counts under the constitutional amendments, statutes and causes of 25 action listed above. These sections of the complaint essentially reproduce the text of the law 26 verbatim, then generally state Defendants have violated these amendments or statutes by the 27 actions describe above, by failing to rescind the contracts related to garnishment, and generally 1 due process and equal protection of the laws. Given the format of Plaintiff’s complaint and the 2 fact that he brings twenty-three (23) individual counts, the Court will not address every 3 constitutional amendment and statute that the Plaintiff cites to in his complaint, however, the 4 Court will address the most significant aspects of the complaint’s factual and legal allegations. 5 For the reasons explained herein, Plaintiff has failed to state a cognizable claim for a violation of 6 his federal rights in this action. 7 A. Rule 8 8 As set forth above, Rule 8(a) requires “a short and plain statement of the claim showing 9 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must contain 10 “sufficient allegations of underlying facts to give fair notice and to enable the opposing party to 11 defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Moreover, 12 Plaintiff must demonstrate that each named defendant personally participated in the deprivation 13 of his rights. Iqbal, 556 U.S. at 676-77. 14 A court may dismiss a complaint for failure to comply with Rule 8(a) if it is “verbose, 15 confusing and conclusory.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981); 16 Brosnahan v. Caliber Home Loans, Inc., 765 F. App’x 173, 174 (9th Cir. 2019). Additionally, a 17 court may dismiss a complaint for failure to comply with Rule 8(a) if it is “argumentative, prolix, 18 replete with redundancy, and largely irrelevant.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th 19 Cir. 1996). 20 The Court finds that Plaintiff’s complaint violates Rule 8(a). Plaintiff’s complaint is not 21 a short and plaint statement of his claims against the specific named Defendants, but rather his 22 complaint’s main body is 45 pages, and totals 99 pages with exhibits. The allegations are 23 confusing and unclear, making it difficult for the Court to determine what, if any, cognizable 24 claims are included. Although the Federal Rules employ a flexible pleading policy, Plaintiff 25 must give fair notice to the Defendants and must allege facts that support the elements of the 26 claim plainly and succinctly. It is Plaintiff’s duty to articulate his claims, not the Court’s or the 27 Defendants’ duty to try to decipher what claims Plaintiff is asserting in the action. 1 withholding orders, contains several legal conclusions regarding the validity of those orders, and 2 cites to a variety federal statutes and constitutional provisions. However, it does not clearly state 3 Plaintiff’s federal claims and many of Plaintiff’s conclusions regarding the validity of the state 4 court orders lack factual support as to how his due process rights or other constitutional or 5 statutory rights were violated, nor in what way they are “false” or “fraudulent,” aside from 6 generally averring a copy of the order did not have a valid signature, without citing to or alleging 7 that this violates any form of California law or regulation applicable to the forms. The 8 requirement of a clear and plain statement of Plaintiff’s claims is especially important in this 9 case because this Court does not serve as an appellate court of state court decisions. If Plaintiff 10 wishes to challenge a decision from a state court regarding child support, he must pursue the 11 appropriate procedures in state court (which may be subject to time limitations and other rules). 12 Plaintiff’s complaint is an example of a shotgun pleading, repeatedly incorporating all 13 preceding paragraphs by reference—which have been found to violate Rule 8. See Weiland v. 14 Palm Beach Cty. Sheriff’s Off., 792 F.3d 1313, 1321 (11th Cir. 2015) (“The most common type 15 [of shotgun pleading]—by a long shot—is a complaint containing multiple counts where each 16 count adopts the allegations of all preceding counts, causing each successive count to carry all 17 that came before and the last count to be a combination of the entire complaint.”); Deerpoint 18 Grp., Inc. v. Agrigenix, LLC, 345 F. Supp. 3d 1207, 1234 n.15 (E.D. Cal. 2018) (“However, 19 incorporating literally all 143 preceding paragraphs, without specific reference to either 20 disparagement or Paragraph 81, does not give Defendants (or the Court) fair notice of the factual 21 bases of the IIPEA claim.” (citing Weiland, 792 F.3d at 1321-23)). In each of the twenty-three 22 (23) separate counts against the three Defendants, Plaintiff does not sufficiently articulate his 23 claims. The complaint cites a variety of federal statutes and constitutional provisions, and while 24 Plaintiff separately lists each claim, each offers only a “formulaic recitation” of Plaintiff’s 25 proffered cause of action. Twombly, 550 U.S. at 555. 26 Further, to the extent that Plaintiff is alleging claims based in fraud, the pleading standard 27 of Rule 9 would apply. Allegations of fraud of subject to the pleading requirement of Rule 9 of 1 party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. 2 P. 9(b). This requires a plaintiff to plead with “more specificity including an account of the time, 3 place, and specific content of the false representations as well as the identities of the parties to 4 the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal 5 punctuation and citations omitted). 6 Initially, Plaintiff’s allegations are insufficient to plead fraud with particularity as 7 required under Rule 9. 8 To allege fraud with particularity, a plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is 9 false or misleading about a statement, and why it is false. In other words, the plaintiff must set forth an explanation as to why the statement or omission 10 complained of was false or misleading. A plaintiff might do less and still identify the statement complained of; indeed, the plaintiff might do less and still set forth 11 some of the circumstances of the fraud. But the plaintiff cannot do anything less and still comply with Rule 9(b)’s mandate to set forth with particularity those 12 circumstances which constitute the fraud. 13 In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994). 14 B. Jurisdiction 15 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to 16 that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Federal courts 17 are presumptively without jurisdiction over civil actions, and the burden to establish the contrary 18 rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 19 377 (1994). Generally, there are two bases for subject matter jurisdiction: federal question 20 jurisdiction and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Plaintiff alleges both federal 21 question jurisdiction, and diversity jurisdiction. 22 District courts have original jurisdiction of all civil actions between citizens of different 23 States in which “the matter in controversy exceeds the sum or value of $75,000, exclusive of 24 interest and costs.” 28 U.S.C. § 1332(a). This requires complete diversity of citizenship and the 25 presence “of a single plaintiff from the same State as a single defendant deprives the district 26 court of original diversity jurisdiction over the entire action.” Abrego Abrego v. The Dow 27 Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted). Here, Plaintiff alleges that 1 also both citizens of California. (Id.) Since Plaintiff and at least two of the named defendants 2 are all alleged to be citizens of California, diversity of citizenship does not exist in this action. 3 Jurisdiction in this action must therefore be based on a federal question. Pursuant to 28 4 U.S. C. § 1331, federal courts have original jurisdiction over “all civil actions arising under the 5 Constitution, laws, or treaties of the United States. “A case ‘arises under’ federal law either 6 where federal law creates the cause of action or where the vindication of a right under state law 7 necessarily turns on some construction of federal law.” Republican Party of Guam v. Gutierrez, 8 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd. 9 v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983) (citations omitted)). “[T]he 10 presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint 11 rule,’ which provides that federal jurisdiction exists only when a federal question is presented on 12 the face of the plaintiff's properly pleaded complaint.” Republican Party of Guam, 277 F.3d at 13 1089 (citations omitted). 14 As to federal question jurisdiction, although the complaint cites to various federal statutes 15 and constitutional amendments, it is not clear, for the reasons given above, which, if any, of 16 these references are intended to allege a claim against the named Defendants and what the 17 factual bases of those claims may be. 18 C. The Rooker-Feldman Doctrine 19 Under the Rooker-Feldman doctrine, a party may not seek appellate review in federal 20 court of a decision made by a state court. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); 21 D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). Typically, the Rooker-Feldman 22 doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in 23 which a party losing in state court seeks what in substance would be appellate review of the state 24 judgment in a United States district court, based on the losing party’s claim that the state 25 judgment itself violates the losers’ federal rights. Doe v. Mann, 415 F.3d 1038, 1041-42 (9th 26 Cir. 2005); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) 27 (the Rooker-Feldman doctrine precludes a district court from appellate review of “cases brought 1 district court proceeding commenced[.]”). Accordingly, the district court lacks jurisdiction over 2 “claims . . . ‘inextricably intertwined’ with the state court’s decision such that the adjudication of 3 the federal claims would undercut the state ruling.” Bianchi v. Rylaarsdam, 334 F.3d 895, 898 4 (9th Cir. 2003) (citing Feldman, 460 U.S. at 483, 485); see, e.g., Moore v. County of Butte, 547 5 Fed. Appx. 826, 829 (9th Cir. 2013) (finding a plaintiff's claims challenging the outcome of 6 custody proceedings were properly dismissed); Rucker v. County of Santa Clara, State of 7 California, 2003 WL 21440151, at *2 (N.D. Cal. June 17, 2003) (finding the plaintiff’s claims 8 were “inextricably intertwined” with the state court’s rulings where the plaintiff “challenge[d] 9 his original child support order on jurisdictional grounds, dispute[d] his total child support 10 arrearages, and allege[d] that Santa Clara County’s garnishment order against his disability 11 benefits payments is invalid”); see also Ignacio v. Judges of U.S. Court of Appeals, 453 F.3d 12 1160, 1165-66 (9th Cir. 2006) (affirming the district court’s dismissal of the case “because the 13 complaint is nothing more than another attack on the California superior court’s determination in 14 [the plaintiff’s] domestic case”). 15 To the extent Plaintiff is asking this Court to review the child support and wage and 16 garnishment orders issued by the state court, under the Rooker-Feldman doctrine, this Court 17 lacks jurisdiction to review and reverse a state court’s decision. Accordingly, any claim seeking 18 to reverse the state court orders cannot proceed in this Court. 19 D. Due Process 20 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 21 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 22 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The due 23 process clause of the Fourteenth Amendment protects two distinct but related rights: procedural 24 due process and substantive due process. Albright v. Oliver, 510 U.S. 266, 272 (1994). 25 The substantive protections of the due process clause bar certain governmental actions 26 regardless of the fairness of the procedures that are used to implement them. Cty. of Sacramento 27 v. Lewis, 523 U.S. 833, 840 (1998). Therefore, the substantive protections of the due process 1 an instrument of oppression. Lewis, 523 U.S. at 846. The Supreme Court has held that “the 2 substantive component of the Due Process Clause is violated by executive action only when it 3 ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’ ” 4 Id. at 847. “[O]nly the most egregious official conduct can be said to be arbitrary in a 5 constitutional sense.” Brittain v. Hansen, 451 F.3d 982, 990 (9th Cir. 2006) (quoting Lewis, 523 6 U.S. at 846). 7 “Substantive due process is ordinarily reserved for those rights that are ‘fundamental.’ ” 8 Brittain, 451 F.3d at 990. “The protections of substantive due process have for the most part 9 been accorded to matters relating to marriage, family, procreation, and the right to bodily 10 integrity[;] and the Supreme Court has been reluctant to expand the concept of substantive due 11 process. Albright, 510 U.S. at 271-72. To state a substantive due process claim, a plaintiff must 12 “show both a deprivation of [his] liberty and conscience shocking behavior by the government.” 13 Brittain, 451 F.3d at 991. 14 “The requirements of procedural due process apply only to the deprivation of interests 15 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 16 Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972). “[P]rocedural due process 17 claims are resolved by balancing tests, where differing interests can give rise to many differing 18 procedural requirements.” Brittain, 451 F.3d at 1000. “(D)ue process is flexible and calls for 19 such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 20 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). 21 Plaintiff asserts vague and speculative deprivation, such as the effect of child support 22 matters from his state case on employment garnishment. There are no facts alleged by which it 23 could reasonably be inferred that Plaintiff is not receiving the process due in his state court case. 24 E. Equal Protection 25 Plaintiff alleges violations of his right to equal protection. There are two ways for a 26 plaintiff to state an equal protection claim. A plaintiff can state a claim for violation of the Equal 27 Protection Clause, by showing “that the defendant acted with an intent or purpose to discriminate 1 1082 (9th Cir. 2003). Intentional in this context means that the defendant acted, at least in part, 2 because of the plaintiff’s membership in a protected class. Serrano, 345 F.3d at 1082. 3 Alternately, the plaintiff can state a claim by alleging that he was intentionally treated differently 4 than similarly situated individuals and there was no rational basis for the difference in treatment. 5 Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 6 528 U.S. 562, 564 (2000). 7 There are no factual allegations that Plaintiff is a member of a protected class or that any 8 named defendant acted with the intent or purpose to discriminate against him due to his 9 membership in that class. Nor is there any allegation that Plaintiff was intentionally treated 10 differently than other similarly situated individuals. Plaintiff has failed to state a claim for 11 violations of the Equal Protection Clause. 12 F. Fourth Amendment 13 Plaintiff alleges a violation of the Fourth Amendment. The Fourth Amendment provides 14 that “the right of the people to be secure in their persons, houses, papers, and effects, against 15 unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “[T]he 16 Fourth Amendment is enforceable against the States through the Fourteenth Amendment.” 17 Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 528 (1967). “To establish 18 a viable Fourth Amendment claim, a plaintiff must show not only that there was a search and 19 seizure as contemplated by the Fourth Amendment, but also that said search and seizure was 20 unreasonable and conducted without consent.” Rakas v. Illinois, 439 U.S. 128, 143 (1978); 21 United States v. Rubio, 727 F.2d 786, 796–97 (9th Cir. 1983). 22 There are no allegations in the complaint that Plaintiff was seized or that there was a 23 search such to implicate the Fourth Amendment. Plaintiff has failed to state a claim for violation 24 of the Fourth Amendment. 25 G. Title 18 of the United States Code 26 Plaintiff also alleges violations, among other statutes, of 18 U.S.C. §§ 242, and 245. 27 “[T]he fact that a federal statute has been violated and some person harmed does not 1 v. Redington, 442 U.S. 560, 568 (1979) (quoting Cannon v. University of Chicago, 441 U.S. 2 677, 688 (1979). Rather, the court is to consider if Congress intended to create the private right 3 of action in the statute and begins with the language of the statute itself. Touche Ross & Co., 4 442 U.S. at 568. “Civil causes of action ... do not generally lie under the criminal statutes 5 contained in Title 18 of the United States Code.” Del Elmer; Zachay v. Metzger, 967 F. Supp. 6 398, 403 (S.D. Cal. 1997). 7 Here, the sections cited under Title 18 provide for fines and incarceration for criminal 8 offenses and do not set forth a private cause of action nor is there any language that would imply 9 that a cause of action exists to allow Plaintiff to seek a remedy for these criminal statutes in this 10 action. 11 H. Judicial Immunity 12 Absolute judicial immunity is afforded to judges for acts performed by the judge that 13 relate to the judicial process. In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002), as amended 14 (Sept. 6, 2002). “This immunity reflects the long-standing ‘general principle of the highest 15 importance to the proper administration of justice that a judicial officer, in exercising the 16 authority vested in him, shall be free to act upon his own convictions, without apprehension of 17 personal consequences to himself.’ ” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th 18 Cir. 2004) (quoting Bradley v. Fisher, 13 Wall. 335, 347 (1871)). This judicial immunity 19 insulates judges from suits brought under section 1983. Olsen, 363 F.3d at 923. 20 Absolute judicial immunity insulates the judge from actions for damages due to judicial 21 acts taken within the jurisdiction of the judge’s court. Ashelman v. Pope, 793 F.2d 1072, 1075 22 (9th Cir. 1986). “Judicial immunity applies ‘however erroneous the act may have been, and 23 however injurious in its consequences it may have proved to the plaintiff.’ ” Id. (quoting 24 Cleavinger v. Saxner, 474 U.S. 193 (1985)). However, a judge is not immune where he acts in 25 the clear absence of jurisdiction or for acts that are not judicial in nature. Ashelman, 793 F.2d at 26 1075. Judicial conduct falls within “clear absence of all jurisdiction,” where the judge “acted 27 with clear lack of all subject matter jurisdiction.” Stone v. Baum, 409 F.Supp.2d 1164, 1174 (D. 1 To determine if an act is judicial in nature, the court considers whether (1) the precise act 2 is a normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy 3 centered around a case then pending before the judge; and (4) the events at issue arose directly 4 and immediately out of a confrontation with the judge in his or her official capacity. Duvall v. 5 Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 6 2001) (quoting Meek v. County of Riverside, 183 F.3d 962, 967 (9th Cir. 1999)). 7 Here, it appears Plaintiff is bringing suit against judicial officers for actions taken in their 8 judicial capacities over which they have jurisdiction. 9 I. Intentional Infliction of Emotional Distress and Negligence 10 Plaintiff avers to state law claims of intentional infliction of emotional distress and 11 negligence. 12 The elements for a claim of intentional infliction of emotional distress under California 13 law are: “(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of 14 the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and 15 proximate causation of the emotional distress.” Wong v. Tai Jing, 189 Cal.App.4th 1354, 1376 16 (2010) (quoting Agarwal v. Johnson, 25 Cal.3d 932, 946 (1979)). Conduct is “outrageous if it is 17 ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” Simo 18 v. Union of NeedleTrades, Industrial & Textile Employees, 322 F.3d 602, 622 (9th Cir. 2002) 19 (quoting Saridakis v. United Airlines, 166 F.3d 1272, 1278 (9th Cir. 1999)). The emotional 20 distress must be “of such a substantial quantity or enduring quality that no reasonable man in a 21 civilized society should be expected to endure it.” Simo, 322 F.3d at 622. 22 Given the legal standards and facts discussed above, Plaintiff has not stated sufficient 23 facts pertaining to any named Defendant or unnamed individual that would rise to the level of 24 intentional infliction of emotional distress. Even if Plaintiff was able to demonstrate intentional 25 inflection of emotional distress, the Court would also decline to exercise supplemental 26 jurisdiction over such state claim because Plaintiff failed to state a separate cognizable federal 27 claim, as explained above. See Ward v. Webber, No. 118CV00916SABPC, 2018 WL 3615853, 1 Court will not exercise supplemental jurisdiction over his state law [slander] claim, even if he 2 cures the deficiencies and states a claim.”) (citing 28 U.S.C. § 1367(a); Herman Family 3 Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001)). 4 IV. 5 CONCLUSION AND ORDER 6 Plaintiff has failed to state a cognizable claim for a violation of his federal rights in this 7 action. Plaintiff shall be granted leave to file an amended complaint to cure the deficiencies 8 identified in this order. See Lopez, 203 F.3d at 1127. 9 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 10 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 11 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to 12 raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 13 omitted). Further, Plaintiff may not change the nature of this suit by adding new, unrelated 14 claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 15 “buckshot” complaints). 16 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 17 Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 18 complaint must be “complete in itself without reference to the prior or superseded pleading.” 19 Local Rule 220. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 Based on the foregoing, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court shall send Plaintiff a civil rights complaint form; 3 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 4 first amended complaint curing the deficiencies identified by the Court in this 5 order; 6 3. The first amended complaint, including attachments, shall not exceed twenty-five 7 (25) pages in length; and 8 4. If Plaintiff fails to file a first amended complaint in compliance with this order, 9 the Court will recommend to the district judge that this action be dismissed, with 10 prejudice, for failure to obey a court order, failure to prosecute, and for failure to 11 state a claim. 12 3 IT IS SO ORDERED. FA. ee 14 | Dated: _ February 18, 2022 Is UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28