Kimbell v. Benner, Case No. CV 17-4767 FMO (SS)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtSUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
Docket NumberCase No. CV 17-4767 FMO (SS)
PartiesROBIN DUBOC KIMBELL, Plaintiff, v. DR. STEPHEN BENNER, et al., Defendants.
Decision Date26 February 2018

ROBIN DUBOC KIMBELL, Plaintiff,
v.
DR. STEPHEN BENNER, et al., Defendants.

Case No. CV 17-4767 FMO (SS)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

February 26, 2018


MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

I.

INTRODUCTION

On June 28, 2017, plaintiff Robin Duboc Kimbell ("Plaintiff"), a California resident proceeding pro se, filed a civil rights complaint (Dkt. No. 1), which the Court dismissed with leave to amend due to defects in pleading (Dkt. No. 10). Pending before the Court is Plaintiff's First Amended Complaint ("FAC"). (Dkt. No. 13).

Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks

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redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). The court may dismiss such a complaint, or any portion of it, before service of process if it concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). For the reasons stated below, the First Amended Complaint is DISMISSED with leave to amend.1

II.

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

The facts underlying the Complaint and the First Amended Complaint are largely the same. Plaintiff's forty-one page First Amended Complaint asserts nine different claims against eighteen Defendants. Many of the Defendants are government officials of the United States and the Republic of Austria, including the Austrian minister of justice, several United States Attorneys, and officials in the United States Department of Justice. Plaintiff also sues her former husband and a United States District Judge. Specifically, the First Amended Complaint names: (1) Dr. Stephen Benner, Minister of Justice, Republic of Austria; and (2) Dr. Peter Seda, Public Prosecutor, Vienna Municipal Criminal Court (collectively, "Austrian Defendants"). (FAC ¶¶ 4-5). The First

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Amended Complaint also names: (3) F. Michael Patterson, United States Attorney, Northern District of Florida; (4) J.D. Roy Atcheson, Unites States Attorney, Northern District of Florida; (5) Thomas F. Kirwin, Assistant United States Attorney, Northern District of Florida; (6) Randall J. Hensel, Assistant United States Attorney, Northern District of Florida; (7) Robert J. Stinson, Assistant United States Attorney, Northern District of Florida; (8) Gregory R. Miller, United States Attorney, Northern District of Florida; (9)Linda M. Samuel, Assistant United States Attorney, Northern District of Florida; (10) Dave McGee, Assistant United States Attorney, Northern District of Florida; (11) Mary Ellen Warlow, Director, Office of International Affairs, United States Department of Justice; (12) Kendall Day, Chief, Asset Forfeiture, United States Department of Justice; (13) Maurice M. Paul (deceased), District Court Judge; (14) Robert Davies, Assistant United States Attorney, Northern District of Florida; (15) James Hankinson, Assistant United States Attorney, Northern District of Florida; and (16) Michael J. Burke, Trial Attorney, United States Department of Justice (collectively, "Federal Defendants"). (FAC ¶¶ 6-18, 21). Finally, the First Amended Complaint names (17) Claude Louis Duboc ("Duboc"), Plaintiff's former husband, and (18) the Banque Gutmann Administrators ("Banque Gutmann"), Vienna, Austria. (FAC ¶¶ 19-20). All Defendants are sued in their official capacities. (FAC ¶¶ 4-21)

The First Amended Complaint's allegations concern the forfeiture of an Austrian bank account that was seized in connection with the criminal conviction of Plaintiff's former

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husband. Plaintiff asserts she was an innocent spouse and was entitled to the funds based on certain agreements with her former husband. She claims that by executing the forfeiture, Defendants violated her civil rights pursuant to 42 U.S.C. § 1983, conspired to violate her civil rights pursuant to 42 U.S.C. § 1985, as well as engaged in the wrongful taking and retention of property, fraud, breach of contract, intentional infliction of emotional distress, and other statutory and tort claims.

III.

DISCUSSION

Under 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff's First Amended Complaint due to multiple pleading defects. However, the Court must grant a pro se litigant leave to amend her defective complaint unless "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted). Accordingly, for the reasons stated below, the First Amended Complaint is DISMISSED with leave to amend.2

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A. The First Amended Complaint Violates Federal Rule Of Civil Procedure 8

Federal Rule of Civil Procedure 8 requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and alteration omitted). Each claim must be simple, concise, and direct. Fed. R. Civ. P. 8(d)(1). Rule 8 can be violated when "too much" or "too little" is said. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013).

Here, the First Amended Complaint does not comply with Rule 8. Plaintiff does not clearly and concisely identify the nature of each of her legal claims, the specific facts giving rise to each claim, and the specific conduct of each Defendant or Defendants against whom each claim is brought. The First Amended Complaint is not a short and plain statement of Plaintiff's claims. Rather, it consists of rambling, repetitious and largely incoherent statements. It includes unnecessarily long and often irrelevant factual allegations and extraneous argument. Instead of focusing and narrowing the claims in her Complaint, Plaintiff's First Amended unnecessarily contains over 40 pages and 125 paragraphs. Consequently, the FAC fails to provide a simple, concise and direct

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statement of each violation alleged. Thus, the First Amended Complaint fails to provide Defendants with fair notice of the claims in a short, clear and concise statement. See Twombly, 550 U.S. at 555. Accordingly, the First Amended Complaint is dismissed, with leave to amend.

Dismissal is appropriate based solely on Plaintiff's failure to comply with Rule 8. However, to the extent that the Court is able to discern claims that Plaintiff may be attempting to raise, the Court reviews these claims and the relevant law below.

B. Plaintiff Fails To State Any Claim Against Either Duboc Or Banque Gutmann

In order to state a claim, the complaint need not contain detailed factual allegations, but it must, at a minimum, plead "enough facts to state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

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Here, other than generally describing who Duboc and Banque Gutmann are (FAC ¶¶ 19-20), the First Amended Complaint does not tie either of these Defendants to any of the nine alleged claims (FAC ¶¶ 69-118). As a result, Plaintiff fails to state any claim against Duboc or Banque Gutmann, and Plaintiff's claims against Duboc and Banque Gutmann must be dismissed, with leave to amend.

C. Plaintiff Fails To State A Civil Rights Claim Against Any Of The Austrian Defendants Or The Federal Defendants

Plaintiff purports to sue each of the Austrian Defendants and Federal Defendants for violations of her civil rights pursuant to 42 U.S.C. § 1983. (FAC at 1-10). To gain relief under § 1983, a plaintiff must plead: "(1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a 'person' (4) acting under color of state law." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Acts " 'under color of state law' refer to acts attributable to states of the United States." Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1518 (9th Cir. 1987). A defendant acts "under color of state law" where he or she "exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49 (1988). "Although federal officials acting under federal authority are generally not considered to be state actors, they may be liable under § 1983 if they are found to have conspired with or acted in concert with state officials to some substantial degree." Cabrera v. Martin, 973 F.2d 735, 742 (9th Cir. 1992). Thus, because

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"federal officials do not ordinarily act under color of state law[,] . . . constitutional violations by federal officials are generally beyond the reach of § 1983." Poon v. Doe, No. 10 CV 0028, 2010 WL 307924, at *3 (E.D. Cal. Jan. 19, 2010); see Kali v. Bowen, 854 F.2d 329, 331 (9th Cir. 1988) ("federal officials who violate federal rights protected by § 1983 generally do not act under 'color of state law' ") (citation and alteration omitted). Similarly, acts by a foreign government and its officials "cannot constitute conduct under color of state law." Gerritsen, 819 F.2d at 1515.

Here, the First Amended Complaint does not allege how any of the Austrian Defendants or Federal Defendants acted under color of state law....

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