Opinion

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

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RONALD HILLS, No. CV 17-3373 MWE (FFM)

Plaintiff, FINAL REPORT AND

13 RECOMMENDATION OF UNITED

V. STATES MAGISTRATE JUDGE

" WELLS FARGO BANK, N.A., et al.,

Defendants.

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This Report and Recommendation is submitted to the Honorable Michael W.

Fitzgerald, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and

General Order No. 194 of the United States District Court for the Central District of

California. For the reasons discussed below, the Magistrate Judge recommends that

judgment be entered dismissing the action with prejudice.

I. PROCEEDINGS

8 On May 4, 2017, plaintiff Ronald Hills (“Plaintiff”), proceeding pro se, filed a

complaint against Wells Fargo Bank, N.A., United States Marshall, Asset Reliance,

°° Inc., Craig Hansen, Edward D. Testo, George Barbour, Ivan Rene Moore, and Does 1

*° through 10, alleging causes of action for: (1) violation of rights under 42 U.S.C. §

1983 (“Section 1983”); (2) violation of the Fifth Amendment; (3) conversion; (4)

1|| intentional interference with prospective economic advantage; (5) negligent

2|| interference with prospective economic advantage; (6) trespass to chattel; (7) replevin;

(8) violation of business and professions code 17200 et seq; (9) negligence; and (10)

4| punitive damages. (Dkt. No. 1.) Service of process was effected on most! of the

defendants on July 28, 2017. (Dkt. Nos. 20-22.) On May 25, 2017, defendant George

6| Barbour filed a motion to dismiss the Complaint under Federal Rule of Civil Procedure

7} 12(b)(6) (“Rule 12(b)(6)”). (Dkt. No. 9.) Plaintiff filed an opposition on June 26,

2017. (Dkt. No. 12.) On July 27, 2017, defendants Wells Fargo, N.A., Asset Reliance,

9} Inc., Craig Hansen and Edward D. Testo jointly filed a motion to dismiss the Complaint

under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) and a motion for

11] sanctions. (Dkt. Nos. 14 and 15.) Plaintiff filed an opposition to the motion to dismiss

12] on August 29, 2017. (Dkt. No. 24.) Plaintiff filed no opposition to the motion for

sanctions. (See Dkt. No. 29.) Defendants filed a reply on September 5, 2017. (Dkt.

14] Nos. 25-28.) The matter thus stands submitted. For the reasons that follow, the Court

15 || recommends that both defendants’ Motions to Dismiss be granted without leave to

amend and that the motion for sanctions be denied.

17 II. PLAINTIFF’S ALLEGATIONS

18 Plaintiff Ronald Hills alleges he kept business and personal property at the home

19] of his associate defendant Ivan Rene Moore. (Compl. at 5.) Plaintiff claims Moore

was evicted from his home on February 12, 2012. (/d. at 5-6.) Plaintiff admits that

21] since that date he has been seeking the return of his property, but that he has not been

22|| able to obtain it because defendants have conspired to deprive him of that property.

23|| Ud.) Plaintiff alleges that as recently March 10, 2017 defendants Wells Fargo and

United States Marshall conspired to deprive him of his property without just

//

26 ——_——-

27 'While Defendants Wells Fargo Bank, N.A., Asset Reliance, Inc., Edward D. Testo

and Ivan Rene Moore appear to have been duly served, there is no proof of service on

28! record for Defendants Craig Hanson, George Barbour, or United States Marshall.

compensation in violation of the Fifth and Fourteenth Amendment. (/d at 10-11.)

2| Plaintiff claims over $300,000,000.00 in damages. (/d. at 23.)

3 If. ANALYSIS

4| Plaintiff?s Federal Claims Fail to State a Claim Upon Which Relief Can Be

5 Granted.

6 Defendant Barbour’s Motion to Dismiss argues that the claims are untimely, that

7] the complaint fails to state a claim upon which relief can be granted as to multiple

8| claims, and that this Court lacks subject matter jurisdiction. (See Barbour Mot. to

9| Dismiss, Dkt. No. 9, hereinafter “Barbour Mot.”) The Motion to Dismiss filed by

10 defendants Wells Fargo, Asset Reliance, Hansen, and Testo similarly claims that

11] Plaintiff's claims are untimely, that the complaint fails to state a claim upon which

12 relief may be granted as to multiple claims, that various claims are barred by res

13 | judicata and collateral estoppel, and that Plaintiff lacks standing. (See Wells Fargo,

N.A. Mot. to Dismiss, Dkt. No. 14, hereinafter “Wells Fargo Mot.”) This

15 | recommendation will focus on the failure to state a claim upon which relief can be

granted as to the federal claims only, since the Court finds that the complaint must be

17| dismissed in its entirety on that ground alone.

18 “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

21] draw the reasonable inference that the defendant is liable for the misconduct alleged.”

22|| Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

23|| Twombly, 550 U.S. 544 (2007)). Conclusory statements that merely recite the

24 elements of a claim are insufficient for the purpose of 12(b)(6). See Iqbal, 556

U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported

26 by mere conclusory statements, do not suffice.”); Twombly, 550 U.S. at 555 (“[A]

27| plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

28 | //

1 | requires more than labels and conclusions, and a formulaic recitation of the

2|| elements of a cause of action will not do... .”).

3 Since Plaintiff is appearing pro se, the Court must construe the allegations of the

4|| Complaint liberally and must afford Plaintiff the benefit of any doubt. See Karim-

5| Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). Moreover, in

6] determining whether a complaint states a claim on which relief may be granted,

7| allegations of material fact are taken as true and construed in the light most favorable

8| to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Finally,

9| pro se litigants in civil rights cases should be given leave to amend their complaints.

10| Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000). However, if “it is absolutely

11] clear that the deficiencies of the complaint could not be cured by amendment,” a pro se

complaint may be dismissed without leave to amend. Karim-Panahi, 839 F.2d at 623

13} (internal quotation marks omitted).

14 1. Plaintiff’s 42 U.S.C. §1983 claim fails to state a claim upon which relief

15 can be granted, even if it is construed as a Bivens claim or a Federal Tort

16 Act Claim. |

17 Plaintiff alleges under 42 U.S.C. §1983 that Wells Fargo Bank, Inc. conspired

18] with an unnamed United States Marshall “to deprive Plaintiff of the use and enjoyment

19| in his personal properties without just compensation and without giving Plaintiff notice

20|| of when they seized and converted Plaintiff's personal properties without just cause.”

21] (Compl. at 10.) Plaintiff states that the named defendants were “acting under color of

22|| law” when they “unlawfully seize[d]” the property “without just cause.” (/d.) He

23|| alleges that this seizure violated his Fifth and Fourteenth Amendment rights. (/d.)

24 There are no references to the United States Marshall in the general allegations

25| of the complaint, thus the complaint fails to state any facts to support the conclusory

26| allegations listed above. However, the Court takes judicial notice of the California

State Court and Federal Bankruptcy Court and District Court proceedings that provide

28 context for Plaintiff's claim. (See Case Nos. LASC BC480013, consolidating

1| California Superior Court cases, hereinafter “L.A. Superior Court Action”; 2:16-bk-

2|| 22878-BR, hereinafter “Bk. Action”; and 2:17-cv-2312-VAP-JEM, hereinafter

3 “Collection Action.”) From this case history the Court adduces that Plaintiffs property

4) was allegedly stored in a house where he conducted his business with his business

partner defendant Moore and where Moore resided. (Compl. at 5.) On or around

6|| February 12, 2012, Moore was evicted from the premises and, allegedly, Plaintiffs

7|| personal property remained on the premises. (/d.) Plaintiff participated in a series of

8|| California state actions in an attempt to recover the property that he purportedly left on

9|| the premises and that allegedly was unlawfully withheld. (See L.A. Superior Court

10|| Action.) However, in 2017, the United States Bankruptcy Court for the Central District

11] of California found that the property was part of the homeowner’s bankruptcy estate,

12|| and issued an order allowing creditor Wells Fargo Bank to move forward with

13|| liquidating that estate to satisfy a debt owed to Wells Fargo, despite Plaintiffs

14], objections and appeals by Moore. (See Bk. Action Dkt. at 55, 58-171.) Subsequently,

15|| Wells Fargo Bank requested an order to levy upon the personal property of the estate in

16|| Federal District Court. (See Collection Action.) Plaintiff attempted to intervene in this

17] action, but notwithstanding Plaintiff's objections the Central District Court ruled that

Wells Fargo could seize and sell the property. (/d. at 15.) Plaintiff now brings this

claim against Wells Fargo Bank and an unnamed United States Marshall for alleged

20|| constitutional violations and torts resulting from this court ordered seizure and sale.

Plaintiffs claim fails to state a claim for multiple reasons.

22 First, this claim against a federal actor cannot be brought under 42 U.S.C. §1983.

23|| Section 1983 provides a remedy only for constitutional violations by state actors.

24|| Cerrato v. San Francisco Comt'y College Dist., 26 F.3d 968, 971 n.5 (9th Cir. 1994).

25|| No state actors are listed in Plaintiffs claim, nor could any be added through

26|| amendment based on this set of facts, because it was a federal court and a federal agent

27|| that executed the collection action, rather than any state actor. Thus, Plaintiff's claims

28 |, fail to state a claim upon which relief can be granted under Section 1983.

1 This flaw is not fatal, however, because Plaintiff hypothetically still could amend

2|| the pleadings to state a cognizable claim. Plaintiff's complaint could be amended to

3|| attempt to allege a claim under Bivens v. Six Unknown Named Agents of Federal

4] Bureau of Narcotics, 403 U.S. 388, 396 (1971). A Bivens action allows a plaintiff to

5|| bring a civil action for constitutional violations committed by federal employees or

6|| their agents. Id. See also Western Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d

7) 1116, 1119 (9th Cir. 2009); Western Center for Journalism v. Cederquist, 235 F.3d

1153, 1156 (9th Cir. 2000).

9 To state a private cause of action under Bivens, a plaintiff must allege: (1) that a

right secured by the Constitution of the United States was violated and (2) that the

violation was committed by a federal actor. West v. Atkins, 487 U.S. 42, 48 (1988);

12! Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010); Karim—Panahi v. Los Angeles

13|| Police Dept., 839 F.2d 621, 624 (9th Cir. 1988); Leer v. Murphy, 844 F.2d 628, 632-33

14] (9th Cir. 1988). Actions under Section 1983 and those under Bivens are identical save

15|| for the replacement of a state actor under Section 1983 by a federal actor under Bivens.

16|| Butz v. Economou, 438 U.S. 478, 504 (1978) (no distinctions for purposes of immunity

17|| between state officials sued under § 1983 and federal officials sued under Bivens); Van

Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (same statute of limitation should be

19} used for Section 1983 actions as for Bivens actions).

20 The factors a plaintiff must plead to establish a Bivens claim “will vary with the

constitutional provision at issue.” Jgbal, 556 U.S. at 676. As relevant here, the Fifth

Amendment provides that no person should “be deprived of life, liberty or property

23|| without due process of law; nor shall private property be taken for public use, without

just compensation.” U.S. Const. Amend. V. The Fourteenth Amendment’s due process

clause provides that “nor shall any State deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. Amend. XIV. As an initial matter, Plaintiff

27|| fails to state a claim under the Fourteenth Amendment for the same reason that the

28 || Section 1983 claim failsthe Fourteenth Amendment only applies to the states, not to

1| the federal government. See U.S. Const. Amend. XIV. Plaintiff alleges no claims

2|) against state government officials, and could not possibly amend his claim to name any

3|| state actors. Plaintiffs Fifth Amendment claim fails on multiple grounds. Plaintiff

4] was not denied procedural due process. Indeed he had the opportunity to fully

5| intervene and litigate in the state and federal bankruptcy court and district court

6| proceedings that resulted in the Collection Action. Nor was Plaintiff denied

substantive due process, since the alleged taking was not for public use. See U.S.

8 Const. Amend. V. Here, the property was taken to satisfy a valid private debt, a use

9|| that serves no “public purpose” under Fifth Amendment law since it provides no

10 conceivable public benefit under Fifth Amendment jurisprudence. See, e.g., Kelo v.

City of New London, Conn., 545 U.S. 469 (2005) (defining “public purpose”

requirement broadly to include takings in the public interest or for public benefit).

13 Alternatively, Plaintiffs claim could be construed as a claim under the Federal

Tort Claims Act. The Westfall Act provides that a claim against the United States

15] under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 is the “exclusive”

16|| remedy for plaintiffs seeking to recover damages for the “negligent or wrongful act or

17| omission of any employee of the Government . . . acting within the scope of his office

or employment.” 28 U.S.C. § 2679(b)(1). The Federal Tort Claims Act bars claimants

19| from bringing suit in federal court until they have exhausted administrative remedies.

20|| McNeil v. United States, 508 U.S. 106, 112 (1993); 28 U.S.C. § 2675(a). Here,

21|| Plaintiff has failed to meet that requirement. Even if Plaintiff were to cure this defect,

22|| his claim would still fail. The United States Marshall enforced a facially valid court

23 order, thus, Plaintiff cannot allege that the Marshall’s execution was negligent, and the

24|| Marshall would be afforded immunity. Torres Ramirez v. Bermudez Garcia, 898 F.2d

25|| 224 (1st Cir. 1990) (United States Marshall who executed a vacated arrest warrant

entitled to qualified immunity); Bame v. Dillard, 637 F.3d 380 (D.C. Cir. 2011)

27|| (United States Marshall entitled to qualified immunity for search where law was

unclear); Lockhart v. Hoenstine, 411 F.2d 455, 460 (3d Cir. 1969) (prothonotary

1| afforded immunity for acting pursuant to court order considering the “well-grounded

principle that any public official acting pursuant to court directive is also immune from

3] suit”). Since the claim against the Marshall would necessarily fail, any related claim

4| against the private defendants for conspiracy also fails for lack of jurisdiction.

5 2. Plaintiff's Fifth and Fourteenth Amendment claims fail to state a claim

6 upon which relief can be granted

7 For the reasons stated above, the Fifth and Fourteenth Amendment claims fail to

state a claim upon which relief can be granted.

C. The Court need not address defendants’ remaining contentions at this time.

10 Defendants’ remaining contentions are moot since the Complaint fails to state a

claim for which relief can be granted as to the federal causes of action, thus this Court

12| lacks jurisdiction over the state law claims.

13 Leave to amend is not warranted. Ifa pleading’s allegations are insufficient to

14|| state a claim and amendment would be futile, a court may deny leave to amend. See,

15| eg., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Here, nothing in

16| Plaintiff's briefing and argument indicates any possibility that he could allege

17| additional facts that would cure the deficiencies identified herein. Accordingly,

amendment would be futile.

19 With respect to defendants’ motion for sanctions, the Court notes Plaintiffs

20|| apparent improper behavior, but as he was not a party to the prior litigation—and given

this Court’s recommendation of dismissal with prejudice—the Court finds it

22|| inappropriate to recommend an award of monetary sanctions at this time.

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1 IV. CONCLUSION

2 For the foregoing reasons, it is recommended that the District Court issue an

order: (1) approving and accepting this Report and Recommendation; (2) granting

4|, defendants’ motions to dismiss the Complaint without leave to amend; (3) denying

5 defendants’ motion for sanctions; and (4) directing that judgment be entered dismissing

this action with prejudice.

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8| DATED: April 24, 2018

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FREDERICK F. MUMM

United States Magistrate Judge

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* On April 2, 2018, Plaintiff filed objections to this Report and Recommendation.

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Those objections have not persuaded the Court to make any change in its

19|| recommendation. First, Plaintiff cannot allege a federal cause of action by

20 substituting former Los Angeles Police officer Kimberly Martin-Bragg for one of the

DOES listed in the complaint because her alleged conduct, which is purely private,

21] satisfies neither the Fifth and Fourteenth Amendment’s state action requirement, nor

Section 1983’s “under the color of state law” requirement. See Am. Mfrs. Mut. Ins.

Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130 (1999)

23! (holding merely private conduct, no matter how discriminatory or wrongful, is outside

24|| the scope of Section 1983 and the Fourteenth Amendment). Second, Plaintiffs

assertion that he did not receive notice of the litigation that allegedly deprived him of

251 his property and that he did not have the opportunity to intervene, is not supported by

26|| the record. Although Mr. Hills was not a party in the litigation, not only did he

receive notice of the Bankruptcy proceedings, but he also participated in both the state

27! and federal court litigation by endorsing Mr. Moore’s efforts, for example, by

28 || submitting his declaration to the court in support of Mr. Moore’s briefs. See Dkt. No.

16.