Procopio v. Conrad Prebys Trust, Dba Secure Self Storage, LLC

• Decision Date: 06 August 2015
• Docket Number: Case No. 14cv1651 AJB (KSC)
• Citation: Procopio v. Conrad Prebys Trust, Case No. 14cv1651 AJB (KSC) (S.D. Cal. Aug 06, 2015)
• Court: U.S. District Court — Southern District of California
• Parties: VINCENT PROCOPIO, Plaintiff, v. CONRAD PREBYS TRUST, dba SECURE SELF STORAGE, LLC; GREGORY J. SMITH; MINICO INSURANCE AGENCY, LLC; and WILLIAM RITCH, an individual dba WEST COAST AUCTIONS; Defendants.

VINCENT PROCOPIO, Plaintiff, v. CONRAD PREBYS TRUST, dba SECURE SELF STORAGE, LLC;GREGORY J. SMITH; MINICO INSURANCE AGENCY, LLC;and WILLIAM RITCH, an individual dba WEST COAST AUCTIONS; Defendants.

Case No. 14cv1651 AJB (KSC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

August 6, 2015

ORDER:

(1) SUA SPONTE DISMISSING PLAINTIFF'S 42 U.S.C. SECTION 1983 CLAIM PURSUANT TO 28 U.S.C. SECTION 1912(e)(2)

(2) GRANTING DEFENDANTS' MOTION TO QUASH SERVICE OF PROCESS AND SET ASIDE ENTRY OF DEFAULT;

(3) DENYING DEFENDANTS' MOTION TO DISMISS PURSUANT TO RULE 4(m); and

(Doc. No. 13)

(4) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR ACCESS TO THE COURT'S ELECTRONIC FILING SYSTEM

(Doc. No. 19)

I. INTRODUCTION

Defendants Conrad Prebys Trust dba Secure Self Storage, LLC and Gregory J. Smith ("Defendants") move to: (1) quash service of Plaintiff Vincent Procopio's ("Plaintiff") amended complaint; (2) dismiss the amended complaint for failure to serve pursuant to Rule 4(m); and (3) set aside the entry of default entered against Defendants. (Doc. No. 13.) Plaintiff filed an opposition on July 15, 2015. (Doc. No. 22.) Concurrently with his opposition, Plaintiff filed a request for access to the court's electronic filing system ("CM/ECF"). (Doc. No. 19.) As set forth more fully below, Defendants' motion to quash service of process and set aside the entry of default is GRANTED. Defendants' request to dismiss Plaintiff's amended complaint pursuant to Rule 4(m) is DENIED. Plaintiff's motion for access to CM/ECF is DENIED WITHOUT PREJUDICE.

II. BACKGROUND

On July 11, 2014, Plaintiff, proceeding pro se, filed suit against several parties and moved for leave to proceed in forma pauperis ("IFP"). (Doc. Nos. 1, 2.) In considering Plaintiff's motion to proceed IFP, the Court sua sponte dismissed Plaintiff's complaint for lack of subject matter jurisdiction and directed Plaintiff to file an amended complaint expressly setting forth the grounds for federal jurisdiction. (Doc. No. 3.) Plaintiff thereafter filed two requests for a continuance of time to file an amended complaint, which the Court granted. (See Doc. Nos. 4, 5, 6, 7.) Plaintiff filed an amended complaint on December 15, 2014. (Doc. No. 9.) Plaintiff asserts several causes of action against Defendants Conrad Prebys Trust dba Secure Self Storage, LLC ("Conrad Trust"), and Gregory J. Smith ("Smith")¹ which stem from Plaintiff's rental of a storage unit and subsequent auction of his belongings. Plaintiff rented a unit from Conrad Trust and eventually fell behind on his payments for the storage unit. As a result, Defendants auctioned the contents of Plaintiff's storage unit pursuant to provisions of the California Self-Service Storage Facility Act. Plaintiff's amended complaint challenges the constitu-tionality of the California Self-Service Storage Facility Act, and asserts claims for breach of contract, conversion, violation of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. section 1961 et seq., "RICO") and violation of 42 U.S.C. section 1983.

On April 30, 2015, Plaintiff filed a request for entry of default against Defendants, (Doc. No. 11), which was subsequently entered by the Clerk, (Doc. No. 12). On June 3, 2015, Defendants filed the instant motion. (Doc. No. 13.) The Court issued a briefing schedule and set the motion for hearing on July 16, 2015. (Doc. No. 14.) Plaintiff was mailed a copy of the briefing schedule which was returned to the Court as undeliverable on June 23, 2015. Shortly thereafter, Plaintiff contacted chambers and requested additional time to file an opposition.² In light of Plaintiff's pro se status, and because the Court's notice of briefing schedule was not received by Plaintiff, the Court extended the time for Plaintiff to respond to Defendants' motion until July 14, 2015. (Doc. No. 16.) On July 15, 2015, Plaintiff filed a opposition, (Doc. No. 22), and a motion for CM/ECF access, (Doc. No. 19). Defendants filed a reply in further support of their motion on July 21, 2015. (Doc. No. 20.)

III. DISCUSSION

A. Screening Pursuant to 28 U.S.C. Section 1915(e)(2)

Concurrently with his original complaint, Plaintiff filed a motion to proceed IFP, which was granted. (Doc. No. 3.) Although Plaintiff's original complaint was dismissed for lack of subject matter jurisdiction, the Court is now presented with the amended complaint. When a plaintiff is afforded IFP status, 28 U.S.C. section 1915(e)(2), requires the Court to screen the plaintiff's complaint to ensure the action is not frivolous or malicious, does not fail to state a claim upon which relief may be granted, or seek monetary relief from an immune defendant. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are notlimited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (noting section 1915(e) "not only permits but requires" the court to sua sponte dismiss an IFP complaint that fails to state a claim). Thus, prior to addressing Defendants' motion, the Court must screen Plaintiff's amended complaint.

To sufficiently plead a claim upon which relief may be granted, Rule 8³ provides that a complaint must state the elements of the plaintiff's claim in a plain and succinct manner. See Fed. R. Civ. P. 8; Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). A complaint must also contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added). "A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This does not amount to a "probability requirement," but necessitates "more than a sheer possibility that a defendant has acted unlawfully." Id. A pro se litigant's complaint, however, is generally entitled to a more liberal interpretation. See Balisireri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990).

Plaintiff's amended complaint contains five causes of action: (1) a constitutional challenge to select provisions of the California Self-Service Storage Facility Act; (2) RICO violation; (3) conversion; (4) breach of contract; and (5) violation of 42 U.S.C. section 1983. (Doc. No. 20, p. 20.) Much of Plaintiff's amended complaint includes case citations, legal doctrines and public policy arguments presented in a persuasive manner to support Plaintiff's claims. Given the length of the amended complaint, the Court recognizes that Plaintiff has taken heed to the Court's prior order dismissing the complaint for failure to sufficiently allege grounds for federal jurisdiction. The amended complaint, however, must also be dismissed in part for failure to state a claim upon which relief may be granted.

1. Claim Challenging the Constitutionality of the California Self-Service Storage Facility Act

Plaintiff's first cause of action challenges the constitutionality of the California Self-Service Storage Facility Act as violative of the Equal Protection Clause. Although this cause of action withstands the Court's screening pursuant to section 1915, because Plaintiff brings a constitutional challenge, he must comply with Rule 5.1, which governs actions questioning the constitutionality of state and federal statutes. Rule 5.1 requires "[a] party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute" to "file a notice of constitutional question" and serve such notice on the relevant sovereign's attorney general. See Peruta v. Cnty. of San Diego, 771 F.3d 570, 574 (9th Cir. 2014) reh'g en banc granted, 781 F.3d 1106 (9th Cir. 2015) (discussing intervention when the constitutionality of a statute is at issue). Because Plaintiff challenges a state statute, he must notify the California attorney general of his challenge to the Self-Service Storage Facility Act. Plaintiff states in his amended complaint that he will comply with Rule 5.1 after service of the amended complaint on all defendants. (Doc. No. 9, ¶ 18.) However, to protect the State's right to intervene and ensure compliance with Rule 5.1, the Court directs Plaintiff to file a notice that it has complied with Rule 5.1 within thirty (30) days of the date of this order.

2. Claim Pursuant to 28 U.S.C. Section 1983

Plaintiff's fifth cause of action asserts a violation of section 1983. Plaintiff alleges that the sale of the contents of his storage unit violated section 1983 by violating Plaintiff's Due Process and Equal Protection rights. (Id. ¶¶ 272-328.) To state a claim under section 1983, a plaintiff must make a prima facie showing that the defendant acted under color of state law to deprive plaintiff of a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not create any substantive rights, operating instead as a vehicle for redressing illegal conduct by government officials. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Thus, a plaintiff must allege that a person acting under color of state law committed the conductat issue. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). Section 1983 is therefore "generally not applicable to private parties" and a section 1983 action may lie against a private party only when private parties are shown to be "'willful participants in joint action with the state or its agents.'" Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)); see also Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1150 (9th Cir. 2011) (describing instances where a private actor's conduct can amount to state action).

Plaintiff's section 1983 claim lacks plausible allegations of state action, and thus fails to state a claim. Although Plaintiff references a...