Rhodes v. Gordon

Decision Date16 July 2013
Docket NumberCase No. CV 12-2863-JGB (DTB)
CourtU.S. District Court — Central District of California
PartiesKAVIN MAURICE RHODES, Plaintiff, v. GIGI GORDON, ESQ., et al., Defendants.
REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE

JUDGE

This Report and Recommendation is submitted to the Honorable Jesus G. Bernal, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Plaintiff, a California state prisoner, filed a pro se civil rights Complaint, pursuant to 42 U.S.C. § 1983 on April 9, 2012. Named as defendants in the Complaint were Attorneys GiGi Gordon ("Gordon"), Ralph J. Novotney ("Novotney"), Brentford Ferriera ("Ferreira"), Harvey Sherman ("Sherman"), Jess Gonzales ("Gonzales"), Cesey Lilienfeld ("Lilienfield"), Micheal P. Judge ("Judge"), Ralph R. Rios ("Rios"); the Honorable Sam Ohta ("Ohta"); Cristina Colon ("Colon");Dane Dauphine ("Dauphine"), Assistant Chief Trial Counsel; and P. Eng ("Eng"), Deputy Trial Counsel.1 The gravamen of plaintiff's claims was that the defendants engaged in a conspiracy to deprive him of post-conviction discovery in state court.

On April 12, 2012, after screening the Complaint in accordance with 28 U.S.C. § 1915(e)(2), the Court found that it suffered from various deficiencies and dismissed it with leave to amend. On May 4, 2012, plaintiff filed a First Amended Complaint ("FAC") herein. Named as defendants in the FAC were Gordon, Novotney, Ohta, Ferreira, Sherman, Gonzales, Lilienfield, Judge, Rios, Colon, Dauphine, Eng, Sergeant Epperson ("Epperson"), and Officers Hernandez ("Hernandez") and Marin ("Marin"). The gravamen of plaintiff's claims in the FAC appeared to be the same as that of the Complaint. On May 9, 2012, the Court ordered the FAC to be served on defendants.

Thereafter, several defendants filed motions to dismiss the FAC. However, prior to ruling on these motions, plaintiff filed a "Request for Leave to File a Supplemental Pleading," which the Court granted on October 12, 2012. The Clerk was directed to file the proposed Second Amended Complaint ("SAC"), which was lodged with the Court on September 17, 2012, and the Court ordered defendants to file a response to the SAC. Named as defendants in the SAC are Gordon, Novotney, Ohta, Ferreira, Sherman, Gonzales, Lilienfield, Judge, Rios, Colon, Dauphine, Eng, Epperson, Hernandez, Marin, Clerk of the Superior Court Gloria Barreras ("Barreras"), and Official Court Reporter Georgette L. Rodarte ("Rodarte"). The gravamen of plaintiff's claims in the SAC appear to be essentially the same as that of the Complaint and FAC.

On October 26, 2012, Ohta filed a Motion to Dismiss ("Ohta MTD") on the grounds that the Court lacks subject matter jurisdiction, the SAC fails to allegesufficient facts to state a cognizable legal theory, Ohta is entitled to absolute immunity, and plaintiff lacks Article III standing to sue Ohta. On the same date, the State Bar defendants Eng and Dauphine filed a Motion to Dismiss ("State Bar MTD"), on the grounds that the SAC is jurisdictionally barred and fails to state a claim upon which relief can be granted. Also, on the same date, prison official defendants Marin and Epperson filed a Motion to Dismiss ("Prison Officials MTD"), on the grounds that the Court lacks subject matter jurisdiction, plaintiff lacks standing to seek injunctive relief, and plaintiff fails to state a claim upon which relief can be granted. On October 31, 2012, Ferreira, Sherman, Lilienfield, and Judge filed a Motion to Dismiss ("Attorney MTD") on the grounds that plaintiff fails to state a claim upon which relief can be granted and the claims are legally deficient because of various applicable immunities.

On November 8, 2012, Novotney filed a Motion to Dismiss ("Novotney MTD"), on the grounds that plaintiff fails to state a claim upon which relief can be granted, the claims are barred by the Rooker-Feldman doctrine, and the SAC fails to state a case or controversy. Also, on the same date, the Estate of Gigi Gordon filed a "Motion of Specially Appearing Defendant to Quash Service of Summons" ("Motion to Quash"), on the ground that no effective service was made pursuant to Fed. R. Civ. P. 4.

On November 19, 2012, Gonzales filed a Motion to Dismiss ("Gonzales MTD"), on the grounds of lack of subject matter jurisdiction, failure to comply with Fed. R. Civ. P. 8, and failure to state a claim upon which relief can be granted. On December 13, 2012, plaintiff filed an Opposition to the Prison Officials MTD ("Opp. Prison Officials MTD"). After one extension of time, on December 14, 2012, plaintiff filed an Opposition to the Attorney MTD. On the same date, plaintiff also filed an Opposition to the Gonzales MTD and an Opposition to the State Bar MTD. On January 3, 2013, defendants Rios and Colon filed a Motion to Dismiss ("Rios/Colon MTD"), on the grounds of lack of subject matter jurisdiction, failure tocomply with Fed. R. Civ. P. 8, and failure to state a claim upon which relief can be granted. After one extension of time, on January 18, 2013, plaintiff filed an Opposition to the Ohta MTD. After one extension of time, on January 22, 2013, plaintiff filed an Opposition to the Novotney MTD ("Opp. Novotney MTD"). On January 23, 2013, plaintiff filed an Opposition to the Motion to Quash. After one extension of time, on February 25, 2013, plaintiff filed an Opposition to the Rios/Colon MTD. On June 6, 2013, plaintiff filed Supplemental Authorities in support of his Opposition to the Attorney MTD.

Thus, this matter is now ready for decision. For the reasons discussed below, the Court recommends that the Motions be granted and that plaintiff be granted leave to amend certain claims, as described hereinafter.

STANDARD OF REVIEW

A Rule 12(b)(1) motion to dismiss tests whether a complaint alleges grounds for federal subject matter jurisdiction. "Subject-matter jurisdiction" "refers to a tribunal's 'power to hear a case,' a matter that 'can never be forfeited or waived.'" Union Pac. R.R. Co. v. Bhd. of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81, 130 S. Ct. 584, 175 L. Ed. 2d 428 (2009) (citations omitted). The Court may "hear evidence regarding jurisdiction" and "resolv[e] factual disputes where necessary." Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation omitted, alteration in original). Plaintiff bears the burden of establishing subject matter jurisdiction. See id.; Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994).

A Rule 12(b)(6) motion to dismiss tests the formal sufficiency of a statement of claim for relief. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) Lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (as amended).2 In determining whether the complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to plaintiffs. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990) (as amended); see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Further, since plaintiff is appearing pro se, the Court must construe the allegations of the complaint liberally. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (as amended). However, "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

Moreover, with respect to plaintiff's pleading burden, the Supreme Court has held that:

[A] plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaicrecitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Twombly, 550 U.S. at 555 (internal citations omitted and alteration in original). In other words, the allegations must be plausible on the face of the complaint. See Iqbal, 556 U.S. at 678. The Supreme Court has held that:

The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Id. (citations omitted); see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief" (citing Iqbal, 556 U.S. at 678)).

REQUESTS FOR JUDICIAL NOTICE

Preliminarily, the Court must consider the parties' Requests for Judicial Notice ("RJN"). On October 26, 2012, Ohta filed a RJN ("Ohta RJN") in support of his Motion to Dismiss, in which he requests the Court to take judicial notice of various pleadings and orders from People v. Rhodes, Los Angeles County Superior Court, Case...

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