GARLAND E. BURRELL, District Judge.
This case, in which plaintiff is proceeding pro se and in forma pauperis, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants Doug Hornbeck and the Town of Mammoth Lakes, and defendant Mono County Sheriff's Department
On April 26, 2011, plaintiff filed a complaint alleging numerous claims against the Town of Mammoth Lakes, Mono County Law Enforcement, the Mono County District Attorneys' Office, Mono County district attorney George Booth, Mono County deputy district attorneys Kyle Graham and Jeremy Ibrihim, and Mono County district attorney investigators Wade McCammond, Frank Smith, and Doug Hornbeck. Dckt. No. 1. Among other things, the complaint alleged that defendants violated plaintiff's due process and other civil rights, as well as a variety of state law rights, by falsely arresting and imprisoning plaintiff for alleged embezzlement from her former employer, searching plaintiff's residence and seizing her belongings, and altering evidence regarding plaintiff's case. Id. The complaint also included numerous allegations regarding a variety of alleged misconduct by defendants. Id.
Then, after defendants Doug Hornbeck and the Town of Mammoth Lakes filed a motion to dismiss plaintiff's initial complaint, on December 29, 2011, plaintiff filed an amended complaint against "Mono County Law Enforcement, et al.," John Ball, Intuit Inc., and Leanne Jesperson, alleging violations of her rights to a fair trial, due process, and equal protection of the laws, based on conduct that allegedly occurred during plaintiff's jury trial in October and November 2011. Dckt. No. 15. The amended complaint also continued to include allegations against previously named defendant Doug Hornbeck. Id. at 2-3.
Nonetheless, on January 11, 2012, the undersigned issued an order stating that "[a]lthough it is unclear whether plaintiff intended for her amended complaint to supercede her original complaint or only to supplement it, because such supplementation is impermissible and because amended complaints supersede earlier complaints filed in an action, the court assumes plaintiff's amended complaint was intended to supercede her original complaint."
Plaintiff did not file a motion for leave to further amend her complaint. Therefore, on February 8, 2012, the court issued an order indicating that, as provided in the January 11, 2012 order, the court would direct service of process on only the defendants named in the caption and/or the allegations in the first amended complaint: Mono County Law Enforcement, Judge John T. Ball, Intuit Inc., Leanne Jesperson, Doug Hornbeck, and the Mono County District Attorney's Office. Dckt. No. 18.
The order then went on to dismiss the entire first amended complaint pursuant to 28 U.S.C. § 1915(e)(2). The order noted that in plaintiff's first amended complaint, she alleged that "Mono county law enforcement engaged in numerous civil rights violations including denying plaintiff the right to a fair trial, due process, and equal protection of the laws." Dckt. No. 15 at 1. She claimed that her criminal jury trial in October and November 2011 was an "ambush," and that she was denied counsel, denied her right to confront witnesses, and denied her right to equal protection and due process. Id. at 1, 2. Specifically, she contended that (1) Officer Hornbeck tampered with witness statements, witnesses, and jurors, id. at 2; (2) witness Leanne Jesperson conspired with Hornbeck and the prosecution, committed perjury, and dissuaded other potential witnesses from attending trial, id. at 3; (3) Hornbeck and the prosecution illegally tapped plaintiff's phone and computer during trial, id. at 3; (4) the judge engaged in numerous fair trial and equal protection violations and is not immune because he is not a properly elected official, id. at 3; (5) her former attorney, Christian Zeaman, testified against her and revealed confidential communications, id. at 3; and (6) the charges against her violated her due process and equal protection rights, id. at 3. She sought immediate release from custody and wanted the court to direct the Department of Justice to oversee all cases prosecuted by the Mono County district attorney's office. Id. at 3-4.
The February 8 order then stated that because it appeared that plaintiff really sought to challenge the fairness of her trial and the validity of her conviction, the first amended complaint was barred under Heck v. Humphrey, 512 U.S. 477 (1994), which precludes federal courts from entertaining collateral challenges to state criminal convictions absent the conviction being called into question. Dckt. No. 18 at 4. The order also provided that "to the extent plaintiff's complaint claims that her conviction was unlawful and to the extent that plaintiff requests that this court reverse her conviction, such a claim is dismissed" under the Rooker-Feldman doctrine, which provides that a federal district court does not have subject-matter jurisdiction to hear an appeal from the judgment of a state court. Id. at 4-5 (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005); see also Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923)). Finally, the order noted that "many of the parties plaintiff names in her first amended complaint are improper defendants and/or are immune from liability" and that plaintiff also failed "to allege that some of the defendants named in the first amended complaint are state actors or were otherwise acting under color of law." Id. at 5-6. Therefore, plaintiff's entire first amended complaint was dismissed with leave to amend. Plaintiff was granted leave to amend only if she could "allege a cognizable legal theory against a proper defendant and sufficient facts in support of that cognizable legal theory." Id. at 6.
On March 12, 2012, plaintiff filed a 66-page second amended complaint. Dckt. No. 19. The second amended complaint consists of plaintiff's original complaint, plaintiff's first amended complaint, excerpts from a petition for a writ of habeas corpus allegedly filed in the California Supreme Court, and multiple pages of handwritten and largely illegible argument. Id. It identifies in the caption all nine defendants named in the original complaint ("Mono County Law Enforcement," Mono County District Attorney's Office, Town of Mammoth Lakes, Kyle Fletcher Graham, George Booth, Wade McCammond, Frank Smith, Doug Hornbeck, and Jeremy Ibrahim), two of the additional defendants named in the first amended complaint (Leanne Jesperson and Judge John T. Ball), as well as six new defendants (Innovative Merchant Solutions, Christian Zeaman, Oklahoma Bar Association, Surat Singh, Khalsa Resorts, and Officer Brown). Id.
Defendants Doug Hornbeck and the Town of Mammoth Lakes, and defendant Mono County Sheriff's Department, then filed motions to dismiss the second amended complaint. Dckt. Nos. 20, 21. On April 30, 2012, because the court determined that oral argument on the motions would not be of material assistance to the court, the motions were submitted without oral argument and the May 2, 2012 hearings thereon were vacated. Dckt. No. 24; see also E.D. Cal. L.R. 230(g). On May 1, 2012, a motion to continue the hearings and what appeared to be both an opposition to the motions and a request for additional time to file a further opposition, which plaintiff filed on April 27, 2012, appeared on the docket. Dckt. No. 25 (asking the court to reschedule the May 2, 2012 hearing because plaintiff is in custody; stating that she just received the transcripts from her criminal trial on April 24, 2012 and would be "support[ing] her . . . Civil Rights petition with exhibits verifying facts shortly"; and requesting that the court issue and send plaintiff ten subpoenas so she can gather more evidence).
Although the April 27 filing was untimely in several respects, on May 2, 2012, the undersigned issued an order giving plaintiff an opportunity to file a further opposition to the pending motions to dismiss, and stating that if plaintiff elects not to file a revised opposition, plaintiff's April 27, 2012 opposition, Dckt. No. 25, would be considered by the court. Id. at 3. Plaintiff did not file a revised opposition within the time prescribed; therefore, the court will consider the opposition she filed on April 27, 2012.
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . ." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, (1994) (internal citations omitted). Rule 12(b)(1) allows a party to seek dismissal of an action where federal subject matter jurisdiction is lacking. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir.2001).
A party may seek dismissal for lack of jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). "In such circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)).
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "`presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
The court is mindful of plaintiff's pro se status. Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). However, although the court must construe the pleadings of a pro se litigant liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985), that liberal interpretation may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Defendants Doug Hornbeck and the Town of Mammoth Lakes move to dismiss plaintiff's second amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that (1) plaintiff's § 1983 claim fails as a matter of law as there are insufficient facts pled to support such a claim; (2) plaintiff's claims are precluded as there was a criminal trial and conviction involving the same primary right which plaintiff is attempting to re-litigate in the present action; (3) plaintiff's claims fail as they are frivolous and should be dismissed under 28 U.S.C. § 1915; (4) plaintiff's state-based tort claims fail as a matter of law as plaintiff failed to allege compliance with the Tort Claims Act and, hence, failed to exhaust her administrative remedies; and (5) plaintiff's state-based tort claims fail as a matter of law as the moving defendants are immune from liability and there are insufficient facts pled to support such claims. Dckt. No. 20 at 2, 11-21. Hornbeck and the Town of Mammoth Lakes also move to dismiss plaintiff's complaint for failure to comply with Rule 8, which requires a short and plain statement and which requires each allegation to be simple, concise, and direct.
The Mono County Sheriff's Department moves to dismiss plaintiff's second amended complaint under Rules 12(b)(1) and 12(b)(6), arguing that (1) the second amended complaint fails to comply with the February 8 order; (2) plaintiff's claims are barred by Heck v. Humphrey, and the Rooker-Feldman doctrine; (3) the complaint fails to comply with Rule 8(a) because it does not state a viable federal claim for relief; and (4) the complaint does not allege a viable state claim.
As a threshold matter, plaintiff's second amended complaint, which consists of plaintiff's original complaint, plaintiff's first amended complaint, excerpts from a petition for a writ of habeas corpus allegedly filed in the California Supreme Court, and multiple pages of handwritten and largely illegible argument, violates Rule 8(a) and this court's previous orders. Rule 8(a) provides that a pleading must contain "a short and plain statement of the grounds for the court's jurisdiction" and "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Further, Rule 8(d) provides that "[e]ach allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). Additionally, this court's February 8, 2012 order specifically provided that "[s]hould plaintiff choose to file a second amended complaint, the second amended complaint shall clearly set forth the allegations against each defendant and shall specify a basis for this court's subject matter jurisdiction." Dckt. No. 18 at 6. The second amended complaint does not comply with any of those requirements and could be dismissed on those bases alone. However, there are several other grounds on which dismissal is required.
As with her first amended complaint, the majority of the claims in plaintiff's second amended complaint seek to challenge the fairness of her trial and the validity of her conviction. See generally Dckt. No. 19; see also Dckt. No. 25. As noted in the February 8, 2012 order, any such claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994), which precludes federal courts from entertaining collateral challenges to state criminal convictions absent the conviction being called into question. In order to bring a civil rights claim alleging an unconstitutional criminal conviction or sentence, a plaintiff must first show that the underlying conviction was reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck, 512 U.S. at 486-87. Plaintiff cannot make such a showing. She concedes that her conviction has not been appealed or reversed, and that her petition for writ of habeas corpus was denied. Dckt. No. 19 at 2. Therefore, plaintiff cannot collaterally challenging her state court conviction in federal court. Heck, 512 U.S. at 486-87.
Moreover, although Rooker-Feldman does not deprive this court of jurisdiction since plaintiff filed this action before the state court judgment was rendered, principles of comity and abstention require dismissal. See Exxon Mobil Corp., 544 U.S. at 292. Younger v. Harris held that federal courts should not enjoin pending state criminal proceedings except under extraordinary circumstances. 401 U.S. 37, 49, 53 (1971). Thus, federal courts should refrain from exercising jurisdiction in actions for injunctive, declaratory, or monetary relief that would interfere with pending state judicial proceedings. Gilbertson v. Albright, 381 F.3d 965, 978 (9th Cir. 2004) (en banc) (indicating that abstention is required even when damages are sought, when the federal court damages award "would frustrate the state's interest in administering its judicial system, cast a negative light on the state court's ability to enforce constitutional principles, and put the federal court in the position of prematurely or unnecessarily deciding a question of federal constitutional law."). In the Ninth Circuit, Younger abstention prevents a court from exercising jurisdiction when three criteria are met: 1) there are ongoing state judicial proceedings; 2) an important state interest is involved; and 3) there is an adequate opportunity to raise the federal question at issue in the state proceedings. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). "Whether it is labeled `comity,' `federalism,' or some other term, the policy objective behind Younger abstention is to avoid unnecessary conflict between state and federal governments." United States v. Morros, 268 F.3d 695, 707 (9th Cir. 2001).
Here, the state proceedings have been ongoing throughout this action and plaintiff has challenged those proceedings in each of her complaints. See Wiener v. County of San Diego, 23 F.3d 263, 266 (9th Cir. 1994) ("The critical question is not whether the state proceedings are still `ongoing' but whether the state proceedings were underway before initiation of the federal proceedings."); Haw. Housing Auth. v. Midkiff, 467 U.S. 229, 238 (1984) (Younger abstention is required if the state proceedings were initiated "before any proceedings of substance on the merits have taken place in federal court."); Huffman v. Pursue, Ltd., 420 U.S. 592, 607-611, 95 (1975) (state court proceedings are "pending" even after a judgment has been rendered if the time for appeal has not expired). Additionally, the state has a vital interest in enforcing its criminal laws and in protecting "the authority of the judicial system, so that its orders and judgments are not rendered nugatory." Pennzoil Co. v. Texaco, Inc, 481 U.S. 1, 14, fn. 12 (1987) (federal court should have abstained from adjudicating challenges to contempt proceedings pending in state court); AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1150 (9th Cir. 2007) (state's interest in enforcing its judgments generally is "important). Finally, plaintiff had an opportunity to raise her federal claims in the state court proceedings. Pennzoil Co., 481 U.S. at 15 (state court proceedings are presumed adequate to raise the federal claim "in the absence of unambiguous authority to the contrary."); see also Juidice v. Vail, 430 U.S. 327, 337 (1977) ("[Federal plaintiffs] need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings . . . their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate."). For these reasons, Younger abstention is proper here.
As noted in the February 8, 2012 order regarding plaintiffs in forma pauperis status, before directing service of process the court must determine whether the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 28 U.S.C. § 1915(e)(2). For the reasons discussed above, this entire action must be dismissed under § 1915(e)(2). See also Dckt. No. 18 at 5-6 (noting that many of the parties plaintiff purports to sue are improper defendants and/or are immune from liability). Because plaintiff has already been given two opportunities to amend her complaint and because it appears that further leave to amend would be futile, further leave to amend is not appropriate. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily would permit a pro se plaintiff to amend, leave to amend should not be granted where it appears amendment would be futile).
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Defendants Hornbeck and the Town of Mammoth Lakes' motion to dismiss, Dckt. No. 20, be granted;
2. Defendant Mono County Sheriff's Department's motion to dismiss, Dckt. No. 21, be granted;
3. Plaintiff's second amended complaint be dismissed without leave to amend, as provided herein; and
4. The Clerk be directed to close this case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
