Petition for Writ of Certiorari — Festus Okwudili Ohan, Petitioner v. American Medical Association, et al.

FILED

UNITED STATES COURT OF APPEALS

AUG 3 2023

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FESTUS OKWUDILI OHAN,

No.

23-3 5434~_=5> £lI~Z557I

\

Plaintiff-Appellant,

v.

AMERICAN MEDICAL ASSOCIATION;

et al.,

D.C. No. 3:23-cv-00047-SLG

District of Alaska,

Anchorage

ORDER

Defendants-Appellees.

A review of the record suggests that this court may lack jurisdiction over this

appeal because the notice of appeal was filed before the district court issued any

orders. See 28 U.S.C. § 1291. To date, appellant has not filed a notice of appeal

from the final judgment entered in the district court on July 19, 2023.

Within 21 days aftgr the date of this ordey, appellant must either move for

voluntary dismissal of the appeal or show cause why it should not be dismissed for

lack of jurisdiction.

If appellant does not comply with this order, the Clerk will dismiss this

*

*

*

appeal pursuant to Ninth Circuit Rule 42-1.

Briefing is suspended pending further order of the court.

*

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 27 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FESTUS OKWUDILIOHAN,

Plaintiff-Appellant,

v.

AMERICAN MEDICAL ASSOCIATION;

et al.

No.

23-35434

D.C. No. 3:23-cv-00047-SLG

District of Alaska,

Anchorage

ORDER

Defendants-Appellees.

Before: BADE, LEE, and VANDYKE, Circuit Judges.

A review of the record and appellant’s response to this court’s August 3,

2023 order to show cause demonstrates that this court lacks jurisdiction over this

appeal because the notice of appeal was filed before the district court issued any

final or appealable orders. See 28 U.S.C. § 1291. Consequently, this appeal is

dismissed for lack of jurisdiction.

— - Appellant’s notice of appea]_from the_fina_ljudgment enteredon July 19

2023 is proceeding as appeal No. 23-35571.

All pending motions are denied as moot.

DISMISSED.

OSA124

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

FESTUS O. OHAN,

Plaintiff,

v.

Case No. 3:23-cv-00047-SLG

AMERICAN MEDICAL

ASSOCIATION, eta!.,

Defendants.

ORDER OF DISMISSAL

On March 2, 2023, self-represented litigant Festus O. Ohan (“Plaintiff’) filed

a civil complaint (“Complaint") and a civil cover sheet.1 Plaintiff paid the filing fee,2

but also filed an Application to Waive the Filing Fee with a handwritten notation

indicating the fee was “paid.”3 On March 14, 2023, Plaintiff filed a “Notice of Filing”

containing additional pages of handwritten narrative that he instructed the Clerk to

file in the nine cases he has initialed in this case in 2022 and 2023.4 On June 20,

1 Dockets 1-2.

2 Docket 1 (Filing fee $ 402: Receipt #100002161).

3 Docket 1-1.

4 See Docket 3 (listing the following cases: (1) Ohan v. Rettig, 3:23-cv-00046-SLG; (2) Ohan v.

American Medical Association, 3:23-cv-00047-SLG; Ohan v. North Atlantic Treaty Organization,

3:22-cv-226-RRB; (4) Ohan v. ABN AMRO, 3:22-cv-00212-RRB; (5) Ohan v. Fontoura, 3:22-cv00207-RRB; (6) Ohan v. U.S. Department of Justice, 3:22-cv-00221-RRB; (7) Ohan v. Schmidt,

3:22-cv- 00182-JMK; (8) Ohan v. Rettig, 3:22-cv-00011-SLG; and (9) Ohan v. Zion, 3:22-cv00266-JMK).

Case 3:23-cv-00047-SLG Document 8 Filed 07/19/23 Page 1 of 8

2023, the Court received a letter from the United States Court of Appeals for the

Federal Circuit forwarding a Notice of Appeal, a Motion for Leave to Appeal without

paying the filing fee, and 154 pages of documents that court had received from

Plaintiff on June 1, 2023.5 The Notice of Appeal has since been relayed to the

Ninth Circuit Court of Appeals. To date, this Court has not entered any orders in

this case until this order.

Plaintiff brings suit against the American Medical Association, National

Board of Medical Examiners, Federation of States Medical Board, American

Hospital

Association,

and

Association

of

American

Medical

Colleges

(“Defendants”) for “Gross Violation of [his] Rights and the ‘Taken [sic] of Properties’

+ ‘Act of God. i »6 Plaintiff describes events he alleges occurred between 1966 to

2013 in Claim One,7 “from the origin of humans to present” in Claim Two,8 and

“from decades ago to present time” in Claim Three.9 For relief, he seeks damages

in the “Quadrillions” and additional remedies that lack a basis in fact or law such

as an “antidote to what they injected in [him] at childhood,” for the Court to “extinct

their behavior,” and a declaration that “they stop cooking dates and history. ”10

5 Dockets 4, 4-1, and 5.

6 Docket 1 at 1.

7 Docket 1 at 3 (Claim 1).

8

Docket 1 at 4.

9 Docket 1 at 5.

10 Docket 1 at 6.

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Order of Dismissal

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Although Plaintiff has an appeal pending before the Ninth Circuit, frivolous

interlocutory appeals do not divest a district court of jurisdiction.11 The pending

appeal is frivolous because when the appeal was filed, this Court had not yet

entered any order in this case.

Therefore, the Court now addresses Plaintiffs

Complaint and pending motion.

Plaintiff has paid the filing fee and non-prisoner complaints are not subject

to 28 U.S.C. § 1915(e) or 1915A screening requirements. Nonetheless, “federal

courts are under an independent obligation to examine their own jurisdiction!.] ”12

To the extent the Court can decipher the Complaint, it is immediately apparent that

the Complaint is fundamentally flawed. Indeed, the Court either lacks jurisdiction

over Plaintiff’s claims or the claims are unsupported by any “cognizable legal

theory” and, thus, warrant dismissal.

DISCUSSION

I.

Jurisdiction

Jurisdiction is “[a] court's power to decide a case or issue a decree.”13 A

court’s subject matter jurisdiction is its “statutory or constitutional power to

11 United States v. Hickey, 580 F.3d 922. 928 (9th Cir. 2009) (“Filing an appeal from an

unappealable decision does not divest the district court of jurisdiction.”). See also Nascimento v.

Dummer, 508 F.3d 905, 908 (9th Cir. 2007) (“When a Notice of Appeal is defective in that it refers

to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and

so the ordinary rule that the district court cannot act until the mandate has issued on the appeal

does not apply.”).

12 United States v. Hays, 515 U.S. 737, 742 (1995).

13 Black’s Law Dictionary, (11th ed. 2019).

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Order of Dismissal

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adjudicate a case. 14 As a federal court, this Court has limited subject matter

jurisdiction.

It possesses “only that power authorized by the Constitution and

statute.”15 This means that the Court has the authority to hear only specified types

of cases.16 “In civil cases, subject matter jurisdiction is generally conferred upon

federal district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or

federal question jurisdiction, 28 U.S.C. § 1331.”17 The burden of establishing

jurisdiction rests upon the party asserting jurisdiction.18

Despite giving a liberal construction to the Complaint, the Court cannot

ascertain the substance of Plaintiffs grievances nor what rights under the

Constitution or laws of the United States Plaintiff believes were violated by these

Defendants, none of whom appear to be governmental entities. And to the extent

Plaintiff is asserting that this Court has jurisdiction based on diversity of citizenship,

it is unclear what, if any, state law claims he is attempting to bring before this Court.

Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998).

15 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see

also, e.g. A-Z Intern. V. Phillips, 323 F.3d 1141,1145 (9th Cir. 2003).

16 See, e.g., United States v. Marks, 530 F.3d 779, 810 (9th Cir. 2008); Daimler Chrysler v. Cuno,

547 U.S. 332, 342 (2006); United States v. Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000).

17 Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005).

18 Kokkonen, 511 U.S. at 377.

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Order of Dismissal

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II.

Requirements to State a Claim

To state a claim, a complaint must contain a “short and plain statement of

the claim showing that the pleader is entitled to relief.”19 “[A] complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face. > ”20 A claim is “plausible” when the facts alleged support a

reasonable inference that the plaintiff is entitled to relief from a specific defendant

for specific misconduct.21

A complaint seeking relief from a federal court must be clear. It must be

legibly handwritten or typewritten and have margins of at least one inch around all

text.22 A complaint should set out each claim for relief separately and include

specifics about how each named defendant is involved in causing an injury to the

plaintiff.23 There can be no liability under unless there is some affirmative link or

connection between a defendant's actions and the claimed injury.24

The Complaint is neither short nor plain and does not set forth facts that

could state a viable claim for relief. The Court is not required to accept as true

conclusory allegations, unreasonable inferences, or unwarranted deductions of

19 Fed. R. Civ. P. 8(a)(2).

20 Id. (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

22 See Alaska L. Civ. R. 7.5.

23 Rizzo v. Goode, 423 U.S. 362, 371 (1976).

24 Rizzo, 423 U.S. at 371; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980).

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fact.25 Further, even if the Court could discern a plausible claim, the alleged events

appear to be time-barred by the statute of limitations.26 Although Plaintiff alleges

these events and his damages are ongoing, the Court cannot discern a reason the

statute should be tolled.27 If a claim is not filed within the applicable statute of

limitations, dismissal is proper even if the plaintiff is self-represented.28 Read as a

whole and liberally construed, the Complaint fails to state a claim upon which relief

can be granted. Therefore, the Complaint is DISMISSED.

III.

Amendment is Futile

If a court dismisses a complaint, then as a general rule it “should grant leave

to amend even if no request to amend the pleading was made, unless it determines

that the pleading could not possibly be cured by the allegation of other facts.”29 In

making this determination, a court should consider factors such as “the presence

25 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

26 See STATUTE OF limitations, Black's Law Dictionary (11th ed. 2019) (“[a] law that bars claims

after a specified period; specif., a statute establishing a time limit for suing in a civil case, based

on the date when the claim accrued (as when the injury occurred or was discovered.)”)

27 The applicable statute for state law tort claims is two years. See Alaska Stat. § 09.10.070(a)

(“Except as otherwise provided by law, a person may not bring an action ... unless the action is

commenced within two years of the accrual of the cause of action.”).

28 Robinson v. Alaska Hous. Fin. Corp., 442 P.3d 763, 766, 769 (Alaska 2019) (dismissing selfrepresented plaintiffs complaint for failure to bring tort claim within two years of cause of action's

accrual); See also Holmes v. Forman, 2023 WL 319918, at *3 (C.D. Cal. Jan. 19, 2023) (finding

claims time-barred since “none of these later events have shed any new light on the conduct of

Defendants that Plaintiff alleges violated his rights. In other words, as of more than 20 years ago,

Plaintiff knew or should have known everything he knows now about the alleged conduct that is

the basis of his action.”).

29 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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or absence of undue delay, bad faith, dilatory motive, repeated failure to cure

deficiencies by previous amendments, undue prejudice to the opposing party and

futility of the proposed amendment.”30 A district court may on its own initiative

dismiss a complaint prior to responsive pleadings if the complaint is frivolous.31

Considering the number of unsuccessful actions brought by Plaintiff thus far

and Plaintiff’s repeated inability to keep his filings short and plain, follow the

Federat Rules of Civil Procedure and orders of the Court, and include only proper

defendants and claims, the Court finds amendment would be futile. Therefore, this

case is DISMISSED.

IV.

Motion For Leave to Appeal Without Paying the Filing Fee

A final judgment or an appealable interlocutory order must be issued by the

district court before the case becomes appealable.32 When the notice of appeal

was filed, the Court had not yet entered a final judgment or any interlocutory orders,

appealable or otherwise, in this case.33 Because there was no basis for appeal,

30 Moore v. Kayport Package Express. 885 F.2d 531, 538 (9th Cir. 1989).

31 Kidd v. Dep't of Corn, 993 F.2d 883 (9th Cir. 1993).

32 WMX Techs., Inc. v. Miller, 104 F.3d 1133,1137 (9th Cir. 1997).

33 See 28 U.S.C.A. §§ 1291, 1292. See also Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546 (1949) (“So long as the matter remains open, unfinished or inconclusive, there may be

no intrusion by appeal.”); WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)

(dismissal of complaint with leave to amend is not appealable); Wilborn v. Escalderon, 789 F.2d

1328, 1330 (9th Cir. 1986) (denial of appointment of counsel in civil case is not appealable).

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Order of Dismissal

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the Notice of Appeal is frivolous and Plaintiffs Motion for Leave to Appeal without

paying the filing fee at Docket 5 is DENIED.

IT IS THEREFORE ORDERED:

1. Plaintiffs Complaint is DISMISSED.

2. Plaintiffs Motion for Leave to Appeal Without Paying the Filing Fee at

Docket 5 is DENIED.

3. The Clerk of Court shall enter a Final Judgment accordingly.

DATED this 19th day of July, 2023, at Anchorage, Alaska.

/sf Sharon L. Gleason

UNITED STATES DISTRICT JUDGE

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