Conerly v. Tarpin
| Decision Date | 04 June 2021 |
| Docket Number | No. 2:19-cv-2535 JAM DB PS,2:19-cv-2535 JAM DB PS |
| Court | U.S. District Court — Eastern District of California |
| Parties | JAMES CONERLY, et al., Plaintiffs, v. SHARIF TARPIN, et al. Defendants. |
Plaintiffs James Conerly, Marilyn Tillman-Conerly, Carina Conerly, and M.T. are proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the court are numerous motions, including defendants' motions to dismiss (ECF Nos. 88-95, 99, 109), defendants' motion to strike (ECF No. 97), defendant's motion for sanctions (ECF No. 106), and plaintiffs' motions for default judgment (ECF Nos. 88, 139.) For the reasons explained below, the undersigned finds that defendants' motions to dismiss should be granted, plaintiffs' motions for default judgment denied, and plaintiffs' second amended complaint dismissed without further leave to amend.
Plaintiffs, proceeding pro se, commenced this action on December 17, 2019, by filing a complaint and paying the applicable filing fee. (ECF No. 1.) Plaintiffs are proceeding on a second amended complaint filed on September 28, 2020. (ECF No. 87.) The second amended complaint is a hodgepodge of events, spanning roughly 18 months, mainly involving plaintiff Carina Conerly and over fifty named defendants. For example, the second amended complaint alleges that on May 16, 2018, plaintiff Carina Conerly filed a grievance with SEIU Local 1000 against defendant Nicole Naddy. (Sec. Am. Compl. (ECF No. 87) at 6.1) On February 22, 2019, Donna Allred recorded a Mechanic Lien on plaintiff Carina Conerly's home. (Id.) On April 1, 2019, plaintiff Carina Conerly called the Kaiser Permanente Advice Nurse and was referred to the Psychiatry Department. (Id. at 9.)
Plaintiff Carina Conerly was later referred to "Mental Health Worker's Comp Doctor for treatment[.]" (Id. at 10.) Plaintiff was off work from April 3, 2019, through April 10, 2019. (Id.) On April 8, 2019, plaintiff was treated by defendant Lien Quoc Tran who, "did not allow Carina Conerly to go into detail on the work actions that caused Carina Conerly's stress," and who prescribed Gabapentin which "made Carina Conerly feel worse." (Id. at 11.) On April 11, 2019, plaintiff was "deemed abled to return to work at full capacity." (Id. at 10.) That same day plaintiff was sent "an AWOL Terminations letter terminating Carina effective" April 3, 2019. (Id. at 13.)
(Id.) On April 18, 2019, defendant "Teri L. Trolio asked Carina Conerly to move in various positions during Physical Therapy[.]" (Id.) On May 9, 2019, defendant Kristy Torain, a private investigator, "called Carina Conerly for a statement on medical documents and began an investigation." (Id. at 15.) Torain allegedly "hired many people to stake out, follow Carina Conerly and her parents, James Conerly and Marilyn Tillman-Conerly," and those people damaged plaintiffs' security cameras, automobiles and "tried to run" plaintiffs "off the road[.]" (Id.)
On May 17, 2109, defendant Sharif Tarpin stated in a voicemail message "that he was taking Carina to court for Custody of minor daughter M.T.[.]" (Id. at 17.) "On May 24, 2019,[defendant] Sabrina V KO asked Carina Conerly to move in various positions during Physical Therapy, most of which were too painful for Carina Conerly to complete." (Id.) On June 21, 2019, the State Compensation Insurance Fund sent Carina Conerly a "NOTICE OF DENIAL OF CLAIM FOR WORKERS' COMPENSATION BENEFITS." (Id. at 18.) On July 26, 2019, defendants Bessida Taonda and Lassane Bonkoungou moved next door to plaintiffs. (Id.) Since that time plaintiffs' have "had issued with all their electronic devices[.]" (Id.)
(Id. at 20.) "On October 25, 2019, Carina Conerly filed a Petition For Release of Property From Lien with [defendant] Superior Court of California, County of Sacramento." (Id. at 21.) "On November 25, 2019, [defendant] Joginder Dhillon heard the Domestic Violence Case again [defendant] Sharif Tarpin" and (Id. at 22.)
"On November 26, 2019, Carina Conerly attended mediation with mediator [defendant] Nora Williams." (Id.) Williams said "she was going to give Sharif Tarpin what he requested" and "told Carina Conerly that she had mental issues." (Id.) "On December 10, 2019 Sharif Tarpin attended a small claims hearing heard by [defendant] June D. Coleman." (Id. at 23.) Coleman "only granted $2,525.74" to Carina Conerly. (Id.) "On December 17, 2019 [defendant] Lauri Damrell heard the OSC Custody Case of Sharif Tarpin vs Carina Conerly" and "was very lenient on Sharif Tarpin[.]" (Id.)
Pursuant to these allegations, the second amended complaint seeks "relief in the amount of $800,000,000.00[.]" (Id. at 31.) Shortly after filing the second amended complaint, plaintiffs filed a motion seeking default judgment. (ECF No. 88.) On October 9, 2020, defendants Service Employees International Union, ("SEIU"), Tiffany Morris, Mary Kay Henry (collectively, "SEIU defendants"), Evalfirst, LLC dba California Medical Evaluators (erroneously sued as California Medical Evaluators, Inc.) and Charmaine Aceituno filed motions to dismiss. (ECF Nos. (89-91.) On October 12, 2020, defendants June D. Coleman, Honorable Joginder Dhillon, Honorable Lauri Damrell, Nora Williams, and the Sacrament County Superior Court, (collectively "Judicialdefendants"), Shaw Law Group, PC and Trish Higgins, SEIU Local 1000 "and its named employees," California State Teachers' Retirement System, ("CalSTRS"), David Todd Walton, Derek Daniels, Nicole Naddy, Darcy Maslow, Christine Martinez, Joshua Goldsmith, Bianca Novoa, Ana Jessica Mosqueda, Leslie Carter-Padilla, Stephanie Hill, Melissa Norcia, Derek Bondurant, Cassandra Lichnock, Jessica Rivera, and Melyssa Adams (collectively "CalSTRS defendants") filed motions to dismiss. (ECF Nos. 92-95.)
On October 13, 2020 defendants California Department of Human Resources, ("CalHR"), Eraina Ortega as Director of CalHR, Karla Broussard-Boyd as Administrative Law Judge for CalHR, Makay Butz as Legal Assistant for CalHR, and Stacy Miranda as a former Labor Relations Officer for CalHR (collectively "CalHR defendants") filed an answer as well as a motion to strike and for judgment on the pleadings. (ECF Nos. 96 & 97.) On October 29, 2020, defendants State Compensation Insurance Fund and Angela M. Diaz filed a motion to dismiss. (ECF Nos. 99.)
On November 6, 2020, defendants Evalfirst, LLC dba California Medical Evaluators (erroneously sued as California Medical Evaluators, Inc.) and Charmaine Aceituno filed a motion for sanctions. (ECF No. 106.) On November 10, 2020, defendants Veracity Research Co, LLC (erroneously sued as Veracity Research Company) and Kristy Michelle Torain filed a motion to dismiss. (ECF No. 109.) On November 20, 2020, plaintiffs again filed a motion for default judgment. (ECF No. 139.)
After full briefing, all pending motions were taken under submission on November 23, 2020. (ECF No. 116.)
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the
////existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When a party brings a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001). Nonetheless, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment" when resolving a facial attack. Safe Air for Everyone, 373 F.3d at 1039.
When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction, no presumption of truthfulness attaches to the plaintiff's allegations. Thornhill Publ'g Co., 594 F.2d at 733. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden of establishing that such jurisdiction does in fact exist. Thornhill Publ'g Co., 594 F.2d at 733.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578,...
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