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