Doe v. Kosicek

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JOHN DOE (STEVEN M. HUFFER), Civ. No. 6:25-cv-00110-AA

OPINION & ORDER

Plaintiff,

v.

CARMEN LEIGH KOSICEK; MAY

ANN HUFFER (MANGUERRA);

PROHEALTH CARE; UNIVERSAL

HEALTH SERVICES

Defendants.

______________________________________

AIKEN, District Judge:

Plaintiff John Doe (Steven Huffer) seeks leave to proceed in forma pauperis

(“IFP”) in this action. ECF No. 2. Plaintiff alleges negligence and also brings claims

under the Racketeer Influenced and Corrupt Organizations Act against his former

spouse and various healthcare providers. Complaint, ECF No. 1. Plaintiff also moves

for appointment of pro bono counsel. ECF No. 3. For the reasons explained, the Court

GRANTS Plaintiff’s IFP application, ECF No. 2, without allowing service of the

complaint. The Complaint, ECF No. 1, is DISMISSED with leave to amend. Plaintiff’s

motion for pro bono counsel, ECF No. 3, is DENIED.

BACKGROUND

Plaintiff lives in Texas, and he alleges that one defendant, Carmen Leigh

Kosicek, resides in Oregon. Compl. at 2. The remaining defendants are alleged to be

domiciled in Florida, Wisconsin, and Pennsylvania. Id.

Plaintiff alleges that defendants used friends and family members as proxies

to engage in an unlawful conspiracy to undermine his mental health and paint him

as a person having a substance abuse problem so that his former spouse could gain

custody of their minor child. Compl. at 4. Plaintiff alleges that most of the

complained-of conduct took place in 2015. Id. Plaintiff explains that someone named

Carols Rodriguez and “other mutual friends” from Las Vegas engaged in a cyber

stalking campaign against him and attempted to blackmail him. Id. From “false

domestic violence accusation[s]” to “the planting of evidence,” plaintiff lists a plethora

of activities he asserts were conspiratorial in nature and caused him extreme

confusion, the result of which made “his attendance at his divorce hearing

impossible.” Id.

Against defendant Universal Health Services (“UHS”) plaintiff alleges that its

employees framed him for stealing “hydromorphone” from work. Id. at 5. Plaintiff

states that UHS employees framed him to undermine his custody battle. Id. In his

allegations, plaintiff explains that UHS employees also “attempted to use sextortion,

as a basis to terminate [his] employment and in an attempt to undermine [his]

marriage to May Ann Huffer, in order to gain a more favorable child custody claim.”

Id.

Against defendant Carmen Leigh Kosicek (“Kosicek”), plaintiff alleges that in

2021, she made a statement in his medical record that he was divorced and charged

with a crime, which made plaintiff “feel as if he would be hauled off to jail if he

attended his divorce hearing.” Id. Plaintiff alleges that the statements were false.

Plaintiff alleges that Kosicek was involved with a conspiracy to prevent plaintiff from

returning to his marital home and to cover up an affair the plaintiff’s wife was

allegedly having. Id. Plaintiff alleges that this was “malpractice” and falls into the “5

year malpractice guidelines.”

Plaintiff also includes some allegations about a person who put a note in his

medical folder that read “We Respect Veterans” and that later, the note was removed

from the folder. Plaintiff alleges that his healthcare providers “accused” plaintiff of

imagining the note. Id. In plaintiff’s view, that shows their motivations to make him

“Split,” and demonstrates to plaintiff that they were falsely imprisoning him. Plaintiff

seeks over 2.8 million dollars in damages and asks the court to reestablish contact

with his minor child. Id.

LEGAL STANDARD

Generally, all parties instituting any civil action in the United States District

Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP

statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for

meaningful access to federal courts despite their inability to pay the costs and fees

associated with that access. To authorize a litigant to proceed IFP, a court must make

two determinations. First, a court must determine whether the litigant is unable to

pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess

whether the action is frivolous, malicious, fails to state a claim upon which relief may

be granted, or seeks monetary relief from a defendant who is immune to such relief.

28 U.S.C. § 1915(e)(2)(B).

Regarding the second of these determinations, district courts are authorized

under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the

complaint on the defendants and must dismiss a complaint if it fails to state a claim.

Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter,

668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal

pleading standards, the complaint must include a short and plain statement of the

claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged. The

plausibility standard . . . asks for more than a sheer possibility that a defendant has

acted unlawfully.” Id. The court is not required to accept legal conclusions,

unsupported by alleged facts, as true. Id. A district court may deny leave to amend

when amendment would be futile. Hartmann v. California Dep't of Corr. & Rehab.,

707 F.3d 1114, 1130 (9th Cir. 2013). The court must construe pro se pleadings

liberally and afford the pro se litigant the benefit of any doubt. Morrison v. Hall, 261

F.3d 896, 899 n. 2 (9th Cir.2001).

DISCUSSION

I. Motion to Proceed IFP

Plaintiff’s application to proceed IFP indicates that he earns less than $20,000

annually and he reports owning a 2008 Jeep Liberty. He carries some consumer debt

and has trouble paying his expenses. Court finds Plaintiff's application and affidavit

are sufficient to show he is unable to pay the fees or post securities required to

maintain this action. Accordingly, Plaintiff's motion to proceed IFP pursuant to 28

U.S.C. § 1915(a) is granted.

II. Motion to Appoint Counsel

Plaintiff has also filed a Motion for Appointment of Pro Bono Counsel. ECF No.

Generally, there is no constitutional right to counsel in a civil case. United States v.

30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). However, pursuant to 28

U.S.C. § 1915(e), this Court has discretion to request volunteer counsel for indigent

parties in exceptional circumstances. Wood v. Housewright, 900 F.2d 1332, 1335 (9th

Cir. 1990). To determine whether exceptional circumstances exist, this Court

evaluates the plaintiff's likelihood of success on the merits and ability to articulate

his claims pro se in light of the complexity of the legal issues involved. Id. at 1335-36.

At this stage, the Court does not find that exceptional circumstances exist to warrant

appointment of counsel, as it is not yet clear whether plaintiff is likely to succeed on

the merits. Plaintiff’s motion to appoint counsel is denied.

III. Screening of Complaint Under 28 U.S.C. § 1915(e)(2)

A. Negligence

As more fully described above, plaintiff’s allegations appear to stem from a

divorce and custody proceeding resulting in an outcome undesirable to him. Compl.

at 4-5. Much of the alleged conduct is stated to have taken place in 2015 and 2021.

Id. The Court notes that the statue of limitations for negligence in Oregon is two

years. ORS § 12.110(1). Any claim for negligence based on the conduct alleged in the

complaint is time barred. Therefore, the Court lacks jurisdiction over plaintiff’s

negligence claim.

B. RICO Act Claim

Broadly speaking, there are two parts to a civil RICO claim, which are the civil

RICO violation, defined under 18 U.S.C. § 1962, and RICO standing, defined under

18 U.S.C. § 1964(c). Painters & Allied Trades Dist. Council 82 Health Care Fund v.

Takeda Pharms. Co., 943 F.3d 1243, 1248 (9th Cir. 2019). A civil RICO violation

consists of four elements: “a defendant must participate in (1) the conduct of (2) an

enterprise that affects interstate commerce (3) through a pattern (4) of racketeering

activity or collection of unlawful debt.” Eclectic Props. E., LLC v. Marcus & Millichap

Co., 751 F.3d 990, 997 (9th Cir. 2014) (citing 18 U.S.C. § 1962(c)).

And to establish “RICO standing” a plaintiff must show: (1) that his alleged

harm qualifies as injury to his business or property; and (2) that his harm was by

reason of’ the RICO violation. Painters, 943 F.3d at 1248 (quoting Canyon Cnty. v.

Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008)) Among those elements, a

“pattern ... requires at least two acts of racketeering activity” committed within 10

years of each other. Wieck v. CIT Grp., Inc., 308 F. Supp. 3d 1093, 1125 (D. Haw.

2018) (citing 18 U.S.C. § 1961(5)).

Thus, in order to state a claim under RICO, a plaintiff must allege facts that

establish a pattern of racketeering activity based on a minimum of two predicate acts,

a criminal enterprise in which the defendant participated, and a causal relationship

between the predicate acts and the harm suffered by the plaintiff. See 18 U.S.C. §§

1961-68, 2314, 2315.

Here, plaintiff has not alleged any facts that show that there were two

predicate acts of “racketeering activity” or a “criminal enterprise” of any kind.

Plaintiff has not also alleged any facts that show that defendants were engaged in

racketeering activity that “affected interstate commerce.” Plaintiff has not alleged

facts that show any causal relationship between the defendants, the defendants’ acts,

and the harm suffered by plaintiff.

The harm plaintiff suffered was termination from employment, which was

apparently based on a supervisor claiming plaintiff had improperly stolen medication

from work supply, or improperly used medication at work. Plaintiff does not set forth

any factual allegations that demonstrate how the other defendants engaged in an

enterprise or racketeering to cause that harm.

Another harm plaintiff describes is the loss of custody of his minor child.

However, the parental rights decision was rendered by a court with jurisdiction over

his family law case. A court is immune from suit for its legal decisions. Conover v.

Haggerty, No. 04-1087-KI, 2004 WL 1970152, at *1 (D. Or. Sept. 7, 2004).

Most of plaintiff’s allegations have no foundation in any law that the Court can

discern. And none of the facts alleged are sufficient for the court to draw an inference

that plaintiff suffered “harm to his business or property” because of defendants’

racketeering enterprise.

The Court finds that plaintiff has failed to allege facts sufficient to state a

plausible claim and the complaint is frivolous. See Iqbal, 556 U.S. at 678 (to avoid

dismissal, “a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face” (citation and internal quotation

marks omitted)); Denton v. Hernandez, 504 U.S. 25, 33 (1992) (explaining that a claim

may be dismissed as frivolous “when the facts alleged rise to the level of the irrational

or the wholly incredible”); see also 18 U.S.C. 1961(1) (defining racketeering activity);

Sanford v. MemberWorks, Inc., 625 F.3d 550, 557, 559 (9th Cir. 2010) (setting forth

elements of a civil RICO claim and explaining that to plead a RICO conspiracy claim,

the plaintiff must first adequately plead a substantive violation of RICO).

IV. Dismissal with Leave to Amend

Because plaintiff is self-represented, the court will provide an opportunity to

amend the complaint. Plaintiff shall have thirty days to amend the complaint. The

Court instructs plaintiff to file a new complaint that sets out: (1) a short and plain

statement for each defendant; (2) stating what law each defendant violated; (3)

describing how each defendant violated the specific law; and (4) showing how each

violation of law caused plaintiff’s harm. The Court set out the elements necessary to

allege a civil claim under RICO in the section above. Plaintiff should include only the

facts relevant to the RICO claim.

CONCLUSION

The Court GRANTS Plaintiff’s IFP application, ECF No. 2, without service of

the complaint. The complaint, ECF No. 1, is DISMISSED with leave to amend.

Plaintiff’s motion for pro bono counsel, ECF No. 3, is DENIED. Plaintiff shall have

thirty (30) days to file an amended complaint. Failure to file an amended complaint

within thirty days will result in dismissal of this case without further notice.

It is so ORDERED and DATED this _2_7_t_h_ day of June 2025.

_/_s_/A__n_n_ _A_i_k_e_n___________

Ann Aiken

United States District Judge