Smith v. Shariat
| Decision Date | 17 June 2014 |
| Docket Number | No. 2:13-cv-1830 TLN AC PS,2:13-cv-1830 TLN AC PS |
| Court | U.S. District Court — Eastern District of California |
| Parties | WAYNE D. SMITH, Plaintiff, v. AZIZ SHARIAT, ET AL., Defendants. |
Pending before the court is defendant Lee Vining's May 12, 2014 motion to dismiss, defendant Linda Hilts and Evergreen MGA's May 12, 2014 motion to dismiss, and defendant Aziz Shariat's May 14, 2014 motion to dismiss, all set for hearing on June 18, 2014. The court has determined that these matters shall be submitted upon the record and briefs on file and accordingly, the date for hearing shall be vacated. E.D. Local Rule 230. On review of the motions and the documents filed in support and opposition, THE COURT FINDS AS FOLLOWS:
RELEVANT FACTUAL ALLEGATIONS
Plaintiff's Second Amended Complaint ("SAC") suffers from the same lack of clarity as his previous pleadings. Invoking this Court's jurisdiction pursuant to, inter alia, the First, Fourth and Fifth Amendments of the United States Constitution, the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq., the Racketeering Influenced and Corrupt Organization Act("RICO"), 18 U.S.C. §§ 1961-1968, and 18 U.S.C. § 201 (), plaintiff brings suit against a number defendants for various wrongs that are not entirely clear, even upon multiple readings of the SAC.
Plaintiff's allegations appear to stem from a work contract he entered into on or around October 5, 2011 with Don Bagwell, the then-manager of the Chiquita Family Camp Ground and RV Park ("Camp Chiquita"). On December 2, 2011, plaintiff moved into Camp Chiquita at Space #16, a space he occupied until April 30, 2012. SAC at 7 ¶¶ 9, 9(a). Pursuant to his contract with Bagwell, plaintiff performed work that included "investigations of Camp ground resident[s], Drug dealers and use thereof." SAC at 7 ¶ 9(a). During the course of his work, plaintiff found that electrical meters were being "padd[ed]." Id. at 9 ¶ 16. Plaintiff "reported every discrepancy, discovered At (The Camp), to all Parties, including Illegal, activities, allegations, of (R.I.C.O.), illegal, sales of firearms, Drug sales, and Grow operations, and the various documented violations of State and County Ordinances." Id. at 10 ¶ 17. In exchange for this work, plaintiff was to be paid $1,690.00 per month. Id. at 9 ¶ 16, 18 ¶ 64.
Following Bagwell's death in late-2011, a Camp Chiquita flyer was distributed nullifying all verbal agreements between Bagwell and Camp Chiquita residents. SAC at 11 ¶ 25. Plaintiff claims that he continued to perform work under the contract until his eviction in February 2013, but that he was never paid for his services. Plaintiff claims that this was a breach of implied contract.
Plaintiff also accuses the owner of Camp Chiquita, Aziz Shariat, of conspiring with unnamed individuals to pad the electricity meters for profit and then of retaliating against plaintiff when the latter reported and attempted to correct the padding. SAC at 7 ¶ 10, 10 ¶ 20. On January 10, 2013, Shariat approached Space #17, where plaintiff then resided, and said, "GET OUT, LEAVE THE PARK TODAY, OR I WILL CUT YOUR BALL'S [sic] OFF." Id. at 8 ¶ 11(A). Plaintiff claims he was illegally evicted on February 4, 2013. Id. at 11 ¶ 28.
Per plaintiff, "Defendants, Et, AL" participated in "a system of vicious harassment, discrimination practices, and Bad Faith dealings, and Fraudulent, Promissory estoppel," and "Acted With Deliberate Indifference, and failure to give the Plaintiff procedural Due Process" byfalsifying utility bills and creating false reports that plaintiff was in violation of Camp Chiquita rules. SAC at 9 ¶ 14. Plaintiff claims that he was a law-abiding resident of Camp Chiquita, but that he was targeted by defendants, even though other residents who were participating in illegal activity at the campground were not evicted or arrested. See, e.g., id. at 10 ¶¶ 21-22.
On July 3 (or August 3), 2012, plaintiff's home was burglarized by a former resident of Camp Chiquita. SAC at 11 ¶ 30, 13 ¶ 39. Plaintiff accuses five on-site managers of being aware of an open security gate and of witnessing the burglary. Id. at 11 ¶ 30. He also accuses El Dorado County Sheriff's Deputies Gennai and Funk of responding to this burglary days after the fact, id. at 13 ¶ 40, and of failing to gather information or interview witnesses, id. at 14 ¶ 42. Plaintiff accuses these defendants of violating his Due Process rights.
Following the burglary, plaintiff filed a claim against Camp Chiquita's insurance company. SAC at 14 ¶ 44. He accuses insurance agents Lee Vining and Linda Hilts of acting in bad faith and of discriminating against plaintiff by conspiring to cover up the facts of the burglary. Id. In support of this claim, plaintiff relies solely on these defendants' denial of plaintiff's insurance claims. See id. at 14 ¶ 45.
Plaintiff also asserts that he was discriminated against because of his religion. In support, plaintiff asserts that after "Defendants Et, Al" learned that he is a practicing Christian, they treated him differently. SAC at 7 ¶ 11. Plaintiff accuses Shariat of approaching him on March 16, 2014 during a scheduled church service at Camp Chiquita (after plaintiff's eviction from the campground) and saying, "You are not allowed here, at [The Camp], get Out, or You Will Be Arrested." Id. at 8 ¶ 12. Plaintiff claims this was in violation of his First Amendment rights.
In sum, plaintiff asserts that all defendants acted under color of state law; that all are vicariously liable for Shariat's actions; that all of the defendants' actions constitute a custom, practice and policy of deliberate indifference; that he was discriminated against on account of his disability; and that the defendants deprived plaintiff of his right to practice his religion.
Plaintiff initiated this action on September 4, 2013. On September 12, 2013, the undersigned granted plaintiff's request to proceed in forma pauperis and screened the complaint,finding it to be so vague and conclusory that the court was unable to determine whether the action was frivolous or failed to state a claim. The complaint was therefore dismissed and plaintiff was directed to file an amended complaint.
On October 15, 2013, plaintiff filed a First Amended Complaint ("FAC") naming Officers Gennai and Funk; Aziz Shariat, as the owner / operator of Camp Chaquita "aka Yanasa, Inc."; Larry Saunders "aka Georgetown Mini, Storage"; Vining Insurance and Business Consultants dba Frontier Adjusters of Sacramento ("Frontier Adjusters") (erroneously sued as "Lee Vining aka Frontier Adjustments of Sacramento"); and Linda Hilts of Evergreen Insurance Company ("Hilts and Evergreen").
Before the Court could screen the FAC, plaintiff served all defendants by mail. See ECF No. 5. Thereafter, defendants Shariat, Frontier Adjusters, and Hilts and Evergreen filed separate motions to dismiss. ECF Nos. 6, 11, 16. On review of these motions, the Court found plaintiff's pleading to be in violation of Federal Rule of Civil Procedure 8(a)(1) and (2). Thus, the FAC was dismissed with leave to amend.
On April 28, 2014, plaintiff filed the operative SAC. ECF No. 20. Plaintiff again names Officers Gennai and Funk, Shariat, Frontier Adjusters, and Hilts and Evergreen. Pending before the Court are three motions to dismiss filed again by Frontier Adjusters, Hilts and Evergreen, and Shariat. ECF Nos. 21-23. Plaintiff opposes the motions.
The purpose of a motion to dismiss pursuant to this rule is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, thecourt accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
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. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Defendant Frontier Adjusters moves to dismiss the SAC on the following grounds: (1) failure to timely serve complaint pursuant to Rule 4(m) of the Federal Rules of Civil Procedure; (2) insufficient service of process pursuant to Rule 12(b)(5); (3) insufficient process pursuant to Rule 12(b)(4); and (4) failure to state a claim pursuant to Rule 12(b)(6).
As for Frontier Adjusters' ground for dismissal based on insufficiency of process, "service of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served." Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45 (1946). "Before a ...
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