Wiesner v. Pro

• Decision Date: 18 September 2013
• Docket Number: Case No. 2:13-CV-00315-KJD-GWF
• Parties: DEANN WIESNER, Plaintiff, v. PHILIP PRO, et al., Defendants.
• Court: U.S. District Court — District of Nevada

DEANN WIESNER, Plaintiff, v. PHILIP PRO, et al., Defendants.

Case No. 2:13-CV-00315-KJD-GWF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED: September 18, 2013

ORDER

Before the Court are Plaintiff Deann Wiesner's Complaint (#1), Addendum to Complaint (#5), First Amended Compalint (#6) and Second Amended Complaint (#20).

I. Legal Standard

A. Pro Se Filings

Plaintiff is pro se, meaning that her submissions to the Court are "to be liberally construed, and . . . however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation omitted); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (applying this standard to pro se complaints). "[H]owever, a pro se litigant is not excused from knowing the most basic pleading requirements." Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000). Further, she "must meet some minimum threshold in providing a defendant with notice ofwhat it is that it allegedly did wrong." Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).

B. Basic Pleading Requirements

Federal Rule of Civil Procedure 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations, citations and alterations omitted). Rather, the claim must be facially plausible, meaning that the facts pled "permit the court to infer more than the mere possibility of misconduct." Id. at 679.

C. Sua Sponte Dismissal

A District Court may sua sponte dismiss a complaint prior to responsive pleadings only if the complaint is frivolous. Kidd v. Dep't of Corr., 993 F.2d 883 (9th Cir. 1993). A complaint is frivolous if it "lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

II. Analysis

Plaintiff seeks "monetary and injunctive damages" on various claims, each under 42 U.S.C. § 1983. To be clear, the initial complaint (#1) alleges only that "Defendants knew victims of domestic violence had their evidence destroyed by State of Nevada VAWA [Violence Against Women Act] Fund Administrators." The First Amended Complaint (#6) adds Nevada State Judges to the long list of defendants, apparently for refusing Plaintiff's filings under her vexatious litigant status. The First Amended Complaint (#6) also alleges misconduct by one of the State Judges. The Second Amended Complaint (#20) simply adds additional defendants, including all U.S. Department of Justice employees. The bulk of Plaintiff's actual claims stem from her Addendum to her original complaint (#5).

Importantly, all of Plaintiff's allegations will be presented below accompanied by their full factual basis as presented by Plaintiff.

A. Claim Against Judge Pro

Plaintiff's first claim is that Judge Pro "refuses to disclose to litigants in this court that he knows the Nevada courts refuse to disclose their errors and omissions in their courts." The remainder of Plaintiff's "Count 1" appears to be devoted to explaining exactly what Judge Pro should have "disclosed." Namely that the Violence Against Women Act Fund Administrators "take photographs of battered victims. . . used to obtain Protection Orders for the victims" but that the Administrators "place[] the photographs in the Opportunity Village bins OV [sic] shreds the photos." (#5).

This claim fails to meet the plausibility standards of Rule 8. No evidence has been introduced supporting the claim that the State of Nevada Violence Against Women Act ("VAWA") Fund Administrators are destroying photographs of domestic violence victims. Further, no evidence has been introduced that Judge Pro is aware of any such destruction. However, even if the Court assumes that such destruction is occurring, and that such destruction is impermissible rather than routine, and that Judge Pro is aware of it-and none of these assumptions are warranted-Plaintiff still fails to assert the elements of any cognizable claim. Lastly, all of the above analysis assumes that the Court construes Plaintiff's § 1983 claims as Bivens claims.¹ This utter absence of supporting fact renders Plaintiff's claim frivolous.

Additionally, this claim is frivolous due to judicial immunity. The Supreme Court has held that judicial immunity "is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of alljurisdiction." Mireles v. Waco, 502 U.S. 9, 12 (1991). Accordingly, to the extent that Plaintiff is complaining of non-action in a judicial as opposed to personal capacity, Plaintiff's claim is barred. Accordingly, this claim is dismissed with prejudice.

B. Claims Against Judge Mahan

Plaintiff asserts that Judge Mahan's acceptance of her case violated her civil rights under § 1983 because Judge Mahan was a named defendant. (#5). Plaintiff also alleges that Judge Mahan "knows of the errors. . . occuring in the St. of NV courts" and that he refused to recuse himself from this case despite his "conflict of interest." (#5). The same analysis applies to the claims against Judge Mahan as against Judge Pro. Further, to the extent that Plaintiff alleges her rights were violated by Judge Mahan's original refusal to recuse himself, Judge Mahan clearly acted in his judicial capacity and is fully immune. Accordingly, these claims are dismissed with prejudice.

C. Claim Against Judge Leen

Plaintiff asserts that Judge Leen violated Plaintiff's civil rights under § 1983 by issuing a written order in this case despite being a named defendant. (#5). The same analysis applies to this claim as to the claims against Judge Mahan. Judicial immunity fully bars Plaintiff's claim, making it frivolous. Accordingly, this claim is dismissed with prejudice.

D. Claim Against Judge Navarro

Plaintiff asserts that Judge Navarro refuses to disclose that she knows that the Nevada Violence Against Women Act Fund Administrators destroyed photographs of the Plaintiff evidencing battery without memorializing this destruction in the case file. (#5). The same analysis applies to this claim as to the claim against Judge Pro. Accordingly, this claim is dismissed with prejudice.

E. Claims Against Judge Hoffman

Plaintiff asserts that Judge Hoffman refuses to disclose that he "knows CCSD Chief of Police" and knows that the Nevada Violence Against Women Act Fund Administrators destroyedphotographs of the Plaintiff evidencing battery and without memorializing this destruction in the case file. (#5). The same analysis applies to this claim as to the claim against Judge Pro. Further, no cognizable claim is stated for Judge Hoffman refusing to disclose that he "knows CCSD Chief of Police." Even assuming factual accuracy-a leap unwarranted here-it is beyond the ability of this Court to imagine how Judge Hoffman might have violated Plaintiff's civil rights simply by knowing another person and refusing to disclose that knowledge, whatever their title and function. Accordingly, this claim is dismissed with prejudice.

F. Claims Against State Judges

Plaintiff asserts claims against state court judges Richard Glasson and Karen Bennett-Heron and their estates. Plaintiff alleges merely that these Judges "refuse me filing in their Court." Plaintiff adds that Judge Glasson "sat for my hearing and trial regarding criminal activity which Richard Glasson authorized without disclosing he authorized the criminal activity." Judicial immunity precludes a claim for refusing Plaintiff's filing. Further, it appears highly likely that the refusal stems from Plaintiff's vexatious litigant status in both the State Justice Courts (Case No. RJC 2011-072949) and the State Bankruptcy Courts (Case 10-10087-bam).

As for the final allegation regarding Judge Glasson, such a bare assertion clearly fails under Rule 8. Further, no factual basis for this claim has been asserted. Nevertheless, exercising an abundance of caution, the Court dismisses this claim without prejudice.

G. Claims Against Nevada VAWA Fund Administrators

Plaintiff has named the VAWA Fund Administrators as Defendants, and alleged behavior which possibly-but not plausibly-form the basis of a claim. However, Plaintiff entirely fails to actually make any claims against these Administrators. Further, regarding the distinction between suing a state and a state official, the Supreme Court has held:

"a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different froma suit against the State itself...We hold that neither a State nor its officials acting in their official capacities are "persons" under § 1983.

Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

It appears that Weisner is suing the Violence Against Women Fund Administrators in their official capacities as state administrators, barring her claims. Nevertheless, exercising additional caution, the Court dismisses this claim without prejudice.

H. Other Named Defendants

Plaintiff has also named as defendants virtually every Federal Judge serving in the Lloyd D. George United States Federal Courthouse , and multiple Judges serving in the Bruce R. Thompson Courthouse and Federal Building. Not only has Plaintiff failed to allege any wrongdoing by these Judges, but they are almost certainly immune from any such claims, even if brought under the Bivens doctrine.

Plaintiff has also named every United States Department of Justice employee as a defendant. Plaintiff has failed to allege any wrongdoing...