Cleveland v. Xiong

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 TIM CLEVELAND, Case No. 1:22-cv-01366-ADA-BAM

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

REGARDING DISMISSAL OF ACTION

13 v.

(Doc. 16)

14 BLONG XIONG, et al.,

FOURTEEN-DAY DEADLINE

15 Defendants.

16

17 Findings and Recommendations

18 Plaintiff Tim Cleveland (“Plaintiff”), proceeding pro se and in forma pauperis, initiated

19 this action on October 20, 2022, in the United States District Court, District of Nevada. (Doc. 5.)

20 The matter was transferred to this Court on October 25, 2022. (Doc. 4.)

21 On January 4, 2023, the Court screened Plaintiff’s complaint and found that it failed to

22 comply with Federal Rule of Civil Procedure 8 and failed to state a cognizable claim upon which

23 relief could be granted. The Court granted Plaintiff an opportunity to amend his complaint to

24 cure the identified deficiencies. (Doc. 13.)

25 In lieu of filing an amended complaint, Plaintiff filed a document labeled: “Court Order to

26 Amend is Denied.” (Doc. 14.) Because Plaintiff’s intent was unclear, the Court directed him to

27 either file a first amended complaint or written notice that he intended to stand on his original

28 complaint, subject to the Court issuing findings and recommendations consistent with the Court’s

1 original screening order. (Doc. 15.)

2 On February 24, 2023, Plaintiff filed a document titled “Amended Action Petition for Writ

3 of Habeas Corpus and Motion for Court to Remand this Action to Senate.” (Doc. 16.) In his

4 document, Plaintiff states, “Statements of fact filed with the court beginning October 20, 2022

5 shall not be withdrawn as Petitioner previously filed “Court Order To Amend Is Denied”,

6 meaning Petitioner allegations of crime shall not be amended.” (Id. at p. 1) (emphasis in the

7 original.) The Court construes this statement as Plaintiff’s written intent to stand on his original

8 complaint.1 Accordingly, the Court issues these Findings and Recommendations based on

9 Plaintiff’s complaint filed on October 20, 2022. (See Doc. 5.)

10 I. Screening Requirement and Standard

11 The Court screens complaints brought by persons proceeding in pro se and in forma

12 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to

13 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be

14 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28

15 U.S.C. § 1915(e)(2)(B)(ii).

16 A complaint must contain “a short and plain statement of the claim showing that the

17 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

18 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

19 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

20 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as

21 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

22 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

23 To survive screening, Plaintiff’s claims must be facially plausible, which requires

24 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

25 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret

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1 Plaintiff also states, “Magistrate court order to amend his statement of facts was denied and shall remain

27 unaltered with exception to the purpose of the Writ of Habeas Corpus.” (Doc. 16 at p. 2.) Plaintiff

appears to seek remand of this action to the Senate Judiciary for habeas review. Plaintiff provides no

28 authority to support this request and the Court intends to recommend dismissal of the underlying action.

1 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully

2 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility

3 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

4 II. Summary of Plaintiff’s Allegations

5 Plaintiff brings this action against the following defendants in their official capacities: (1)

6 Thomas C. Hunton, former senior loan manager, Farm Service Agency (“FSA”), United States

7 Department of Agriculture (“USDA”); (2) Blong Xiong, State Executive Director, FSA, USDA;

8 (3) John Oosterman, Loan Chief, FSA, USDA; (4) Jacque Johnson, former Acting State

9 Executive Director, FSA, USDA; and (5) Navdeep Dhillon, Farm Program Chief, FSA, USDA.

10 (Doc. 5 at pp. 3, 5.)

11 Plaintiff’s complaint is disjointed and difficult to understand. It also lacks chronological

12 or other discernible order, and it fails to clearly identify his allegations and claims. As best as can

13 be determined, Plaintiff seeks a preliminary injunction to suspend an appeal hearing that was

14 scheduled on October 26, 2022, in the National Appeals Division (“NAD”) of the USDA.

15 Plaintiff claims that the Administrative Judge (“AJ”) overruled his objection concerning subject

16 matter jurisdiction, compelling him to proceed with a hearing. (Id. at p. 1.)

17 However, Plaintiff also alleges that this action concerns two NAD hearings, one presided

18 over by AJ Gibson in Lakewood, Colorado and one presided over by AJ Eslick in Blue Springs,

19 Missouri. (Id. at p. 2.) He asserts that the AJs issued final determinations to proceed with

20 Defendants’ issues, which Plaintiff claims violates his rights under the California Constitution

21 and his Thirteenth Amendment right to be free from conditions of peonage. (Id. at p. 3.) Plaintiff

22 requests a court order directing the USDA NAD to suspend hearings pending judicial review. AJ

23 Gibson reportedly scheduled a hearing on September 26, 2022. (Id.)

24 According to Plaintiff, he sought an appeal hearing following a request for financial

25 assistance for damages incurred over a duration of eight years. His intent for the hearing

26 concerned the Special Relief Authority granted to the FSA State Executive Director and Deputy

27 Administrator. Plaintiff alleged approximately $4.5 million in damages related to investment-

28 backed expectations, real estate damages and personal injury. Plaintiff claims that the alleged

1 damages are not within the scope of the State Executive Director’s authority and the acting State

2 Executive Director knew or should have known that Plaintiff’s request for financial assistance

3 required review by the Office of General Counsel and forward to the William D. Cobb, Deputy

4 Administrator. (Id. at p. 2.)

5 Plaintiff contends, in the alternative, that the acting State Executive Director cultivated a

6 scheme to obstruct Plaintiff’s financial assistance. Prior to the hearing, the acting State Executive

7 Director submitted two documents into the record: Plaintiff’s district court action against a FSA

8 employee that had since retired; and Plaintiff’s 2015 racial discrimination complaint concerning

9 the same FSA employee.

10 Plaintiff further alleges that he is an African American domiciled in Kern County,

11 California, and is an active participant in USDA programs. On May 19, 2014, he signed a

12 promissory note (FSA-2026 CA) and accepted Defendant Hunton’s statements concerning the

13 terms and conditions of the loan. After participating in two NAD hearings, Plaintiff discovered

14 that Defendant Hunton allegedly provided false statements during the 2014 application process.

15 (Id. at p. 3.)

16 On September 23, 2022, AJ Gibson issued an adverse determination overruling Plaintiff’s

17 objections to Defendant Johnson submitting U.S. District Court Case, Cleveland v. Hunton, 1:16-

18 cv-01732-AWI-SAB, into the hearing record. Plaintiff claims that the appeals division lacks

19 jurisdiction concerning subject matter relevant to Cleveland v. Hunton. Plaintiff further claims

20 that the AJ erred when overruling Plaintiff’s objection to Defendant Oosterman replacing retired

21 Defendant Johnson as the agency representative. (Id. at pp. 6-7.)

22 Plaintiff also alleges that on October 13, 2022, AJ Eslick erred in a similar fashion by

23 overruling Plaintiff’s objection to FSA employees properly serving as agency representative

24 “pertinent to State Executive Director Xiong’s adverse decision to Plaintiff’s request for Special

25 Relief Authority.” (Id. at p. 7.)

26 Further, Plaintiff asserts that on April 17, 2017, in Cleveland v. Hunton, he filed

27 objections to the findings of the magistrate judge denying Plaintiff’s access to counsel. Plaintiff

28 complains that the magistrate judge violated Plaintiff’s constitutional rights and “attempted to

1 establish a foundational federal regulatory justification to dismiss Plaintiff’s claim.” (Id.)

2 Plaintiff contends that the magistrate judge, “knowing Plaintiff as a socially disadvantaged

3 African American USDA participant characterized efforts to state a claim as ‘futile’, while also

4 declining to grant counsel.” (Id.)

5 Plaintiff further contends that court granted Defendant Hunton, in his official capacity,

6 access to U.S. Attorney Jeffrey Lodge, but the “court neglected to review Agency screening under

7 28 C.F.R. § 50.15(1)(2)” for the representation of federal officials and employees by the

8 department. (Id.) Plaintiff complains that the “court neglected to provide Plaintiff, opportunity to

9 review the Defendant’s Hunton’s written statement, and ‘all available factual information’

10 submitted in compliance with § 50.51(1).” (Id. at p. 8.)

11 Plaintiff alleges:

12 Defendant Oosterman knowingly distributed to U.S. Attorney Lodge, unredacted

financial data from Plaintiff’s Farm Service Agency account, omitted National

13 Appeals Division 2016 Final Determination relevant to matters the court

recognized, Plaintiff’s December 2016 adverse findings issued by the USDA

14 Office of the Assistant Secretary for Civil Rights relevant to matters the court

recognized. The court dismissed without prejudice, Plaintiff’s based on U.S.

15 Attorney Lodges assertion Plaintiff file complaint before final determination.

16 (Id. at pp. 8-9) (unedited text).

17 Plaintiff, under the Administrative Procedure Act, 5 U.S.C. § 704, reportedly brings this

18 action for the purpose of judicial review to determine the following:

19 1. Special Relief Authority – Whether Congress authorized State Executive

Directors discretionary function to “delegate Special Relief Authority function” to

20 USDA employees that are not attorneys.

2. Administrative Judge jurisdiction under circumstances concerning subject matter

21 implicating federal employee and official constitutional violations of a state.

22 3. Judicial review – Does the Farm Service Agency bear obligations in the “interest

of the United States” to refer Agency Position Statement to Farm Service Agency

23 Administrator and/or Deputy Administrator when conflicts arise between state

and federal law.

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25 (Id. at p. 10.)

26 Plaintiff alleges that the Defendant have deprived Plaintiff his constitutional liberties and

27 protections and failed to prove the existence or amount of debt. (Id. at p. 11.)

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1 Plaintiff also alleges that on September 23, 2022, Defendant Oosterman unexpectedly

2 participated in Plaintiff’s pre-hearing. AJ Gibson erred when accepting court documents and

3 Defendant Oosterman into the hearing record. Plaintiff further alleges that Defendant

4 Oosterman’s declaration to the U.S. District Court, Eastern District of California “illustrates

5 further his intent to testify . . . as a fact witness on behalf of Defendant Hunton.” (Id. at p. 11.)

6 Defendants reportedly adopted Defendant Hunton’s work product “knowing the existence of

7 several accepted USDA racial discrimination program complaints; a violation applicable to the

8 Fair Debt Collection Practices Act.” (Id.)

9 Plaintiff contends that his “mission to establish a Medicinal Agricultural Market targeting

10 the African American community is under sustained attack by a cohort of federal employees.”

11 (Id. at p. 13.) Plaintiff contends that the court and the People of California will hear his public

12 health objective using agricultural products and services as a countermeasure against food borne

13 diseases, such as cardiovascular disease, chronic kidney disease, type 2 diabetes, and

14 hypertension. He claims: “Each disease documented as underlying conditions attributed to

15 COVID-19 fatalities in the African American community.” (Id.) He asserts that Defendants are

16 culpable of human rights violations.

17 Plaintiff additionally contends that based on his application for financial assistance, FSA

18 employees knew of five 1890 Land-grant Universities identified in the farm plan. He claims that

19 “the adversely impacted students that attended the enumerated institutions beginning in April

20 2013 are third parties in this new action legally enforceable under the 13th Amendment and

21 Senate Document 95-18.” (Id.)

22 Plaintiff also alleges that Defendants Xiong, Oosterman, Johnson and Dhillon committed

23 crimes pursuant to Title 18 of the United States Code and the California Penal Code. (Id. at pp.

24 5-6.)

25 III. Discussion

26 A. Federal Rule of Civil Procedure 8

27 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and

28 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause

2 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

3 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

4 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

5 at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are

6 not. Id.; see also Twombly, 550 U.S. at 556–557.

7 Plaintiff’s complaint is not a short and plain statement of his claims. Plaintiff’s narrative

8 is disjointed and confusing. It also contains extraneous statements and information, making it

9 difficult to separate the relevant factual allegations from the irrelevant ones. It is not the type of

10 complaint contemplated by Rule 8. See Murguia v. Langdon, No. 1:19-cv-00942-DAD-BAM,

11 2020 WL 3542310, at *12 (E.D. Cal. June 30, 2020) (dismissing complaint with leave to amend

12 where complaint failed to comply with Rule 8 and was “mostly narrative ramblings and

13 storytelling”). Plaintiff has elected not to file an amended complaint curing this deficiency.

14 B. Administrative Procedure Act (“APA”), 5 U.S.C. § 501 et seq.

15 The APA’s comprehensive provisions for judicial review of agency actions are contained

16 in 5 U.S.C. §§ 701-706. “Any person ‘adversely affected or aggrieved’ by agency action; see §

17 702, including a ‘failure to act,’ is entitled to ‘judicial review thereof,’ as long as the action is a

18 ‘final agency action for which there is no other adequate remedy in a court,’ see § 704.” Heckler

19 v. Chaney, 470 U.S. 821, 828 (1985). Insofar as Plaintiff is complaining about overruled

20 objections or hearings by the NAD, Plaintiff has not identified any final agency decisions for

21 review. Further, any request for injunctive relief to enjoin hearings already scheduled and

22 previously held are moot.

23 C. Fair Debt Collections Practices Act

24 Although not entirely clear, Plaintiff appears to allege a violation of the Fair Debt

25 Collection Practices Act (“FDCPA”). However, claims under the FDCPA may not be brought

26 against “any officer or employee of the United States or any State to the extent that collecting or

27 attempting to collect any debt is in the performance of his official duties.” 15 U.S.C. §

28 1692a(6)(C). As alleged, Plaintiff cannot bring such a claim against the USDA and its agents.

1 Moreover, the United States and its agencies are immune from suit, unless sovereign immunity

2 has been waived. Loeffler v. Frank, 486 U.S. 549, 554 (1988). Congress did not waive sovereign

3 immunity by enacting the FDCPA. See Ha v. Dep’t of Educ., 680 F.Supp.2d 45, 47 (D.D.C.

4 2010).

5 D. Review of Magistrate Judge’s Decisions

6 Plaintiff appears to seek review of the magistrate judge’s rulings in his prior, closed

7 action, Cleveland v. Hunton, 1:16-cv-01732-AWI-SAB. Plaintiff cannot appeal decisions in

8 another case by filing a new complaint in the same district court. The correct course of action

9 would be to appeal to the Court of Appeals for the Ninth Circuit. This Court lacks jurisdiction to

10 entertain a direct appeal of other closed district court cases. See Blackshire v. Sacramento Cty.

11 Sheriff, No. 2:22-cv-0378 TLN AC (PS), 2022 WL 658139, at *2 (E.D. Cal. Mar. 4, 2022),

12 report and recommendation adopted, No. 2:22-cv-00378-TLN-AC, 2022 WL 1630223 (E.D. Cal.

13 May 23, 2022).

14 E. Civil Rights Action Against Federal Employees and Federal Agencies

15 To the extent Plaintiff purports to bring a claim against the USDA and federal employees

16 in their official capacities for an alleged violation of his rights under the federal Constitution, he

17 may not do so. In appropriate cases, actions against federal officials may be cognizable under

18 Bivens v. Six Unknown Named Federal Agent of Federal Bureau of Narcotics, 403 U.S. 388,

19 (1971). See Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). However, Bivens claims are

20 unavailable against the United States, federal agencies, or federal employees in their official

21 capacities. FDIC v. Meyer, 510 U.S. 471, 485-86 (1994); Ibrahim v. Dep’t of Homeland Security,

22 538 F.3d 1250, 1257 (9th Cir. 2008) (no Bivens-like cause of action available against federal

23 agencies or federal agents sued in their official capacities).

24 F. Title 18, United States Code

25 Plaintiff alleges violations of various provisions of Title 18, including 18 U.S.C. §§ 1581,

26 1584 and 1589. (See Doc. 5 at pp. 5-6.) “[T]he fact that a federal statute has been violated and

27 some person harmed does not automatically give rise to a private cause of action in favor of that

28 person.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (quoting Cannon v.

1 University of Chicago, 441 U.S. 677, 688 (1979)). Rather, the Court is to consider if Congress

2 intended to create the private right of action in the statute, looking first to the language of the

3 statute. Id. “Civil causes of action ... do not generally lie under the criminal statutes contained in

4 Title 18 of the United States Code.” Del Elmer; Zachay v. Metzger, 967 F. Supp. 398, 403 (S.D.

5 Cal. 1997). The cited sections are not exceptions. Plaintiff cannot bring suit against the

6 defendants for violation of these cited sections of Title 18. These sections provide for fines or

7 incarceration for criminal offenses. There is no language in these sections that would imply a

8 private right of action.

9 G. California Penal Code

10 Plaintiff alleges that defendants violated the California Penal Code. Generally, the

11 California Penal Code does not permit a private right of action. See Thomas v. Restaurant, Case

12 No. 1:15-cv-01113-DAD-SKO, 2015 WL 9583029, at *2 (E.D. Cal. Sept. 31, 2015). Plaintiff has

13 not demonstrated that any of the cited Penal Code sections authorize a private cause of action.

14 IV. Conclusion and Recommendation

15 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to

16 state a cognizable claim upon which relief may be granted. Despite being provided with the

17 relevant pleading and legal standards, Plaintiff has opted to stand on his original complaint.

18 Further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

19 Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that this

20 action be dismissed, with prejudice, for failure to comply with Federal Rule of Civil Procedure 8

21 and failure state a cognizable claim upon which relief may be granted.

22 These Findings and Recommendation will be submitted to the United States District

23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

24 fourteen (14) days after being served with these Findings and Recommendation, Plaintiff may

25 file written objections with the Court. The document should be captioned “Objections to

26 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file

27 objections within the specified time may result in the waiver of the “right to challenge the

28 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

1 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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4 Dated: March 3, 2023 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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