Long v. Darmer

Filing 27

ORDER DISMISSING CASE. Signed by Judge Robert J. Bryan on 11/19/08. (Lemm, J.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 This matter comes before the Court on defendant's Motion to Dismiss Pursuant to v. ROMAN E. DARMER II, Defendant. ORDER ON DEFENDANT'S MOTION TO DISMISS ROBERT A. LONG, Plaintiff, CASE NO. C08-0124RJB UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

17 Fed.R.Civ.P. 12(b)(6) (Dkt. 17) and on defendant's Motion for Extension of Time to File Answer 18 Pending Resolution of Motion to Dismiss (Dkt. 19). The Court has considered the pleadings filed 19 in support of and in opposition to the motions and the remainder of the file herein. 20 21 FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was convicted of three counts of threatening a federal judge, in violation of 18

22 U.S.C. § 115(a)(1)(B). See U.S. v. Long, 83 Fed. Appx. 174 (Dec. 8, 2003) (Dkt. 20). The 23 conviction was affirmed on appeal. Id. Plaintiff filed several civil actions in U.S. District Court in 24 Alaska, apparently related to this conviction as well as to Social Security benefits. See Dkt. 1, at 25 2-8. 26 Plaintiff filed several motions in his criminal case, USA v. Long, District of Alaska Case

27 No. CR02-00031JVS, Dkt. 193, 194, and 203. The motions were construed as a motion or 28
ORDER - 1

1 motions attacking plaintiff's conviction or sentence, pursuant to 28 U.S.C. § 2255. A civil case 2 was opened­USA v. Long, District of Alaska Case No. 04-286JVS­but all documents related to 3 the motions to attack plaintiff's convictions were filed in the criminal case (CR02-0003JVS). 4 Plaintiff filed, pro se, numerous motions in the case. 5 On February 2, 2006, the court appointed defendant to represent plaintiff in his challenge

6 to his conviction and sentence. CR02-00031JVS, Dkt. 238. On June 1, 2007, an evidentiary 7 hearing was held. CR02-00031JVS, Dkt. 299 and 300. 8 On May 28, 2008, plaintiff Robert A. Long filed a civil complaint in the United States

9 District court for the District of Alaska, against defendant, his appointed counsel in the challenge 10 to his conviction and sentence. Dkt. 1. The complaint appears to allege that defendant was 11 appointed to represent plaintiff in an appeal, to the Ninth Circuit U.S. Court of Appeals, of a 12 dismissal of plaintiff's motion under 28 U.S.C. § 2255. Dkt. 1, at 7. Plaintiff alleges that (1) 13 defendant refused to request audio recordings from trial when ordered to do so by plaintiff; (2) 14 defendant refused to challenge the district judges in his cases when those judges had conflicts of 15 interest, covered up criminal falsifications of trial records, and were biased against him; (3) 16 defendant refused to challenge the testimony of a witness (Terrell), who had committed perjury 17 and obstructed justice; (4) defendant refused to conduct the discovery ordered by plaintiff; (5) 18 defendant refused to communicate with plaintiff; (6) defendant created a false written transcript of 19 proceedings; (7) defendant declined to move to withdraw from plaintiff's case; and (8) defendant 20 intentionally caused plaintiff to lose his case. Dkt. 1. The complaint alleges federal jurisdiction on 21 the basis of diversity of citizenship, 42 U.S.C. § 1983, RICO, and general Tort jurisdiction of the 22 U.S. Court. Dkt. 1, at 1. Plaintiff appears to allege that defendant denied his right to effective 23 assistance of counsel and "[d]irect contract rights". Dkt. 1, at 27. 24 On May 29, 2008, the Alaska District Court ruled on plaintiff's motions challenging his

25 conviction and sentence. CR02-00031JVS. The docket in CR02-00031JVS reflects the 26 following entry on June 3, 2006: 27 28
ORDER - 2

ORDER conditionally dismissing 203 MOTION (common law writ of mandate) for correction of the erroneous & bad faith ruling of Judge Beistline filed by Robert A. Long,

1 2 3 4 5 6 7 8 9 10 11

219 MOTION for Writ filed by Robert A. Long, 207 MOTION for a ruling on the denial of the requirement of the govt to bring the defendant before the court w/i the time set by law filed by Robert A. Long, 235 MOTION to Expedite filed by Robert A. Long, 211 MOTION for order to appeals counsel Eugene B Cyrus, for all defendants letters to counsel from defendant from FDC Seatac under court rules 30 & 45 or other as the court sees fit filed by Robert A. Long, 206 MOTION for subpoenas of the trial jury filed by Robert A. Long, 202 MOTION (common law writ of mandate) for the prosecutor, to under sworn oath, deny that a phone tap existed on def's phone, to deny that def was denied counsel at sentencing, to deny that a mail interception was used filed by Robert A. Long, 218 MOTION for Writ filed by Robert A. Long, ,217 MOTION for Writ filed by Robert A. Long, 210 MOTION for order to trial counsel Dieni, for an affidavit by courr [sic] order on if counsel became aware of a phone tap, witness tampering in the case or testimony of a criminal action by a victim filed by Robert A. Long, 212 MOTION for order to the Anchorage Federal District Court, Clerk of Court, to correct the docket sheets in the removal of all records of appointed defense counsel Mr. McCoy assigned & acting in the case filed by Robert A. Long. Defense counsel given 30 days to renotice any of the mots if he certifies that the mot should be heard by the Court. If def counsel does so the Court will schedule a status conference to determine what further briefing should be ordered. Signed by Judge James V. Selna on 5/29/08. (LSC, COURT STAFF) (Entered: 06/03/2008) CR02-00031JVS, Dkt. 334.

12 On June 3, 2008, the docket in CR02-00031JVS reflects the following entry: 13 14 15 16 CR02-00031JVS, Dkt. 335. 17 On June 9, 2008, defendant filed a motion to withdraw as attorney for plaintiff, citing 18 irreconcilable differences. CR02-00031JVS, Dkt. 336 and 337. On June 24, 2008, the Alaska 19 District Court granted the motion to withdraw. CR02-00031JVS, Dkt. 340. There are no further 20 entries on the docket in CR02-00031JVS. It appears that that case has concluded but that is not 21 clear from the record. 22 MOTIONS 23 On October 14, 2008, defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 24 12(b)(6) (Dkt. 17) and a motion for extension of time to file an answer pending resolution of the 25 motion to dismiss (Dkt. 19). On November 7, 2008, plaintiff filed a motion to strike the defense 26 motion for extension of time to file an answer and, in the alternative, to dismiss the defense 27 28
ORDER - 3

ORDER finding as moot 225 Motion as to Robert A. Long (1); denying 197 Motion to Compel as to Robert A. Long (1); denying 216 Motion for Writ as to Robert A. Long (1); denying 229 Motion as to Robert A. Long (1); finding as moot 230 Motion as to Robert A. Long (1); finding as moot 232 Motion as to Robert A. Long (1). (LSC, COURT STAFF) (Entered: 06/03/2008)

1 motions. Dkt. 25. In addition, plaintiff has argued in opposition to the motion to dismiss. See 2 Dkt. 25, at 2-17. 3 4 5 1. Motion to Dismiss Motion and Response. Defendant requests that the court dismiss this case on the basis DISCUSSION

6 that the complaint fails to state a claim upon which relief may be granted. Dkt. 17. Defendant 7 argues that (1) plaintiff cannot maintain a malpractice action in diversity because, under Alaska 8 law, he has not obtained post conviction relief; (2) plaintiff has not pled specific factual allegations 9 sufficient to maintain a claim under RICO; and (3) plaintiff cannot maintain an action under 42 10 U.S.C. § 1983 because none of the alleged actions taken by defendant constitutes state action. 11 Dkt. 18. 12 Plaintiff opposes the motion to dismiss, arguing that (1) his ineffective assistance of

13 counsel claim states a cognizable cause of action; (2) the real and monetary relief requested is 14 itself sufficient to state a claim for relief; (3) the requirement to obtain post-conviction relief has 15 little or nothing to do with this defendant; (4) plaintiff has stated specific facts to support a RICO 16 claim; and (5) defendant is a state actor. Dkt. 25. Plaintiff also maintains that the defense is 17 taking advantage of his lack of knowledge, mental and physical health, and economic condition. 18 Dkt. 25, at 15. 19 Legal Standard. Motions to dismiss may be based on either the lack of a cognizable legal

20 theory or the absence of sufficient facts alleged under such a theory. Balistreri v. Pacifica Police 21 Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and 22 the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295, 1301 (9th 23 Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed factual 24 allegations but must provide the grounds for entitlement to relief and not merely a "formulaic 25 recitation" of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 26 1965 (2007). Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its 27 face." Id. at 1974. 28
ORDER - 4

1

While the Court's consideration of a motion to dismiss is generally limited to the

2 pleadings, the Court may take judicial notice of matters of public record. Fed. R. Civ. P. 12(d); 3 see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). In this case, the court has considered 4 U.S. v. Long, 83 Fed. Appx. 174 (Dec. 8, 2003), cited and supplied by defendant, for the purpose 5 of providing context to the claims made in the complaint. Accordingly, the court takes judicial 6 notice of that case. In addition, the court takes judicial notice of the record in USA v. Long, 7 District of Alaska Case No. CR02-00031JVS. 8 Legal Malpractice. Plaintiff contends that his attorney rendered ineffective assistance; it

9 appears that he has asserted a state law claim for legal malpractice, based upon diversity of 10 citizenship. 11 Under the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), "federal courts sitting in

12 diversity jurisdiction apply state substantive law and federal procedural law." Gasperini v. Center 13 for Humanities, Inc., 518 U.S. 415, 427 (1996). Because the events that plaintiff challenges 14 occurred in Alaska, the court applies the substantive law of Alaska. 15 Defendant maintains that, because plaintiff has not obtained post-conviction relief, he may

16 not pursue a malpractice action against counsel in this case. Plaintiff has not shown, nor does he 17 claim, that his conviction or sentence has been invalidated. In his opposition to the motion to 18 dismiss, plaintiff states that the requirement to obtain post conviction relief may apply to suits 19 against attorneys who represented him at an earlier stage of the criminal proceedings, but not to 20 defendant in this case, whose role was related to appellate work on plaintiff's civil action for post21 conviction relief. Dkt. 25, at 8. 22 Under Alaska law, a former criminal defendant who has been convicted must obtain post-

23 conviction relief in order to maintain a legal malpractice claim against former criminal defense 24 counsel. Haynes v. McComb, 147 P.3d 700, 701 n.1 (Alaska 2006), citing Shaw v. State, Dep't 25 of Admin. Pub. Defender Agency, 816 P.2d 1358 (Alaska 1991). Haynes and Shaw relate to 26 malpractice actions against counsel involved in a defendant's criminal case. In Shaw, the Alaska 27 Supreme Court recognized that jurisdictions are divided on the issue of requiring post-conviction 28
ORDER - 5

1 relief in order to maintain a legal malpractice action arising from a criminal case. Shaw, 816 P.2d 2 at 1350. In Shaw, the Alaska Supreme Court quoted the New York Court of Appeals, in Carmel 3 v. Lunney, 70 N.Y.2d 169, 511 N.E. 2d 1126, 1128 (1987), which reasoned as follows: 4 5 6 This is so because criminal prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules.

7 Shaw, 816 P.2d at 1160. The Shaw court explained the policy reasons for the rule requiring post8 conviction relief before pursuing a malpractice claim against an attorney involved in the criminal 9 process, as follows: (1) the requirement of post-conviction relief promotes judicial economy 10 because many issues litigated in the quest for post conviction relief will be duplicated later in the 11 legal malpractice action; (2) if the defendant was denied post-conviction relief, the legal principal 12 of collateral estoppel would serve to eliminate any frivolous malpractice claim; (3) by prioritizing 13 post-conviction relief, judicial resources will be conserved; (4) requiring post-conviction relief as 14 a prerequisite to a legal malpractice action aids in determining whether the statute of limitations 15 bars the action; (5) some incarcerated persons are unduly litigious; (6) an attorney defending 16 against a malpractice action may produce evidence that might be harmful to a criminal defendant 17 with a legitimate basis for post-conviction relief; and (7) a criminal defendant with a valid post18 conviction relief claim should be able to pursue that remedy without the distraction of also filing a 19 legal malpractice claim. Shaw, 816 P.2d at 1361. 20 A person who has been convicted of a crime and has had that conviction upheld on direct

21 appeal may file a petition for collateral relief to challenge his conviction. See 28 U.S.C. § 2255. 22 Here, plaintiff is challenging the adequacy of his counsel in his petition for collateral relief, not in 23 the direct criminal process. However, the policy considerations behind the rule requiring post24 conviction relief prior to filing a malpractice action, as discussed above, remain the same, at least 25 on the facts in this case. 26 Plaintiff apparently was dissatisfied with defendant's representation, since he filed this

27 action in federal court against his counsel before his counsel moved to withdraw. He could have 28
ORDER - 6

1 raised the issue of his counsel's performance in the context of his Section 2255 action. He 2 apparently did not do so, and instead, resorted to filing a separate action in federal court. Further, 3 plaintiff is not without relief, even if he allegedly received inadequate counsel in his Section 2255 4 action. 28 U.S.C. § 2255(h) provides a procedure for requesting authorization from the Ninth 5 Circuit U.S. Court of Appeals to file a second or successive motion under 28 U.S.C. § 2255. 6 There is another significant reason why plaintiff cannot prevail in a malpractice action

7 against the attorney who represented him in the criminal context here. Under Alaska law, in order 8 to prevail on a legal malpractice theory, a plaintiff must prove four elements: "(1) the duty of the 9 attorney to use such skill, prudence, and diligence as other members of the profession commonly 10 possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the 11 negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the 12 [attorney's] negligence." Shaw, 816 P.2d 1358, 1361 n. 5 (Alaska 1991) (quoting Linck v. 13 Barokas & Martin, 667 P.2d 171, 173 n. 4 (Alaska 1983) (citations omitted)). Significantly, 14 under Alaska law, unless a person obtains post-conviction relief, he or she is collaterally estopped 15 from relitigating any element of a criminal charge of which he stands convicted. Haynes, 147 16 P.3d at 701. 17 Even if plaintiff could prove that the attorney representing him in the habeas context

18 breached the duty of care, he could not prove that, but for the negligent conduct, he would not 19 have been convicted, because collateral estoppel would bar him from proving the causation and 20 damage elements of a legal malpractice action. 21 In conclusion, under Alaska law, plaintiff was required to obtain post-conviction relief

22 before pursuing a malpractice action against the attorney who represented him in the collateral 23 attack on his conviction. He has not done so. Plaintiff's malpractice claim should be dismissed. 24 RICO. Plaintiff contends in his complaint that defendant engaged in a conspiracy to cover

25 up crimes and misconduct by the judges who made decisions in his criminal case. Defendant 26 contends that plaintiff has not made specific allegations sufficient to state a RICO claim; plaintiff 27 contends that (1) defendant's refusal to comply with plaintiff's orders, and (2) defendant's intent 28
ORDER - 7

1 to lose the case in order to cover up misconduct by the judges in his criminal case, sufficiently 2 state a RICO claim. 3 The purpose of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §

4 1961, et seq. (the RICO) is twofold: (1) to protect legitimate enterprises from being victimized 5 and (2) to protect the public from people using enterprises, both legitimate and illegitimate, as 6 vehicles through which to conduct unlawful activity. See National Organization for Women, Inc. 7 v. Scheidler, 510 U.S. 249, 259 (1994). 8 The RICO Act generally provides a civil remedy only for acts involving racketeering or

9 the collection of unlawful debt. The list of activities that constitute racketeering is long and 10 exhaustive. See 18 U.S.C. § 1961(1). In addition to substantive offenses, the RICO Act outlaws 11 conspiracies to violate any of its substantive provisions. See 18 U.S.C. § 1962(d). In order to 12 sustain a conspiracy claim, plaintiffs must prove either that the defendant agreed to violate one of 13 RICO's substantive provisions or that the defendant committed two racketeering activities listed 14 in 18 U.S.C. § 1962. See U.S. v. Tille, 729 F.2d 615, 619 (9th Cir. 1984). Generally, commission 15 of racketeering activities requires the use of money obtained through racketeering or participation 16 in the conduct of an enterprise's affairs through racketeering. Thus, a plaintiff is charged with 17 proving that the defendant either agreed to violate RICO's provisions or actually committed two 18 racketeering activities in order to maintain a conspiracy claim. 19 At the heart of any conspiracy claim is an agreement between two or more people; where

20 only one person is the alleged culprit, there can be no agreement or conspiracy. In other words, a 21 defendant cannot conspire with herself. See River City Markets, Inc. v. Fleming Foods West, Inc., 22 960 F.2d 1458, 1461 (9th Cir. 1992) ("an individual cannot associate or conspire with himself"). 23 In this case, plaintiff has not alleged facts sufficient to state a claim for a RICO violation.

24 Plaintiff alleges that defendant refused plaintiff's orders while defendant was representing plaintiff 25 on appeal. Plaintiff surmises that the reason that defendant provided him ineffective assistance 26 was to cover up the crimes and misconduct of judges involved in plaintiff's trial. Plaintiff's 27 speculation about defendant's motives is insufficient to show that defendant agreed to violate one 28
ORDER - 8

1 of RICO's substantive provisions or that defendant committed two racketeering activities listed in 2 18 U.S.C. § 1962. Plaintiff has made no specific factual allegations that defendant made any 3 agreement to violate RICO or that defendant committed two racketeering activities listed in 18 4 U.S.C. § 1962. 5 The court has construed plaintiff's complaint liberally, and has viewed every allegation in

6 regard to the RICO claim in the light most favorable to plaintiff. Any attempt to file an amended 7 complaint with regard to the RICO claim would be futile. Accordingly, the court should dismiss 8 the RICO claim with prejudice. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th 9 Cir.1995)(Unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is 10 entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of 11 the action.). 12 Claim under 42 U.S.C. § 1983. The complaint alleges that defendant violated plaintiff's

13 rights to Due Process and Equal Protection, pursuant to 42 U.S.C. § 1983. Dkt. 1, at 5. 14
In order to state a claim under 42 U.S.C. § 1983, a complaint must allege that (1) the

15 conduct complained of was committed by a person acting under color of state law, and that (2) the 16 conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of 17 the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, 18 Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an 19 alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 20 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). 21 Plaintiff has not made any factual allegations that would establish that defendant, who was

22 appointed to represent plaintiff on appeal related to a collateral attack on a criminal conviction in 23 federal court, was a state actor. Further, to the extent that plaintiff attempts to plead that 24 defendant violated his constitutional rights under Bivens v. Six Unknown Named Agents of the 25 Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff has made no showing that defendant 26 was a federal officer acting under color of federal law when he represented plaintiff in his appeal 27 28
ORDER - 9

1 to the Ninth Circuit U.S. Court of Appeals. See Cox v. Hellerstein, 685 F.2d 1098 (9th Cir. 2 1982). Accordingly, the claim under 42 U.S.C. § 1983 should be dismissed with prejudice. 3 4 2. Other Motions On October 14, 2008, defendant filed a motion for extension of time to file an answer to

5 the complaint (Dkt. 19), requesting that the court extend the time for defendant to answer the 6 complaint until the court rules on the pending motion to dismiss. Defendant opposes the motion 7 for extension of time, contending that an extension of time will cause delay. Dkt. 25, at 1-2. This 8 motion is moot, in light of the court's ruling in this order that dismisses plaintiff's causes of 9 action. The motion should be stricken as moot. 10 In his opposition to defendant's motion to dismiss, plaintiff moved to strike the motion to

11 dismiss. Dkt. 25. Plaintiff's motion is without merit and should be denied. 12 In his opposition to defendant's motion to dismiss, plaintiff also moves to expedite this

13 suit. Dkt. 25. This motion is moot, in light of the court's ruling in this order that dismisses 14 plaintiff's causes of action. The motion should be stricken as moot. 15 16 Therefore, it is hereby ORDERED that defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt.

17 17 is GRANTED. The complaint is DISMISSED. Defendant's Motion for Extension of Time 18 to File Answer Pending Resolution of Motion to Dismiss (Dkt. 19) is STRICKEN as moot. 19 Plaintiff's motion to strike defendant's motion to dismiss (Dkt. 25) is DENIED. Plaintiff's 20 motion to expedite the suit (Dkt. 25) is STRICKEN as moot. 21 The Clerk is directed to send uncertified copies of this Order to all counsel of record and

22 to any party appearing pro se at said party's last known address. 23 24 25 26 27 28
ORDER - 10

DATED this 19th day of November, 2008.

A
ROBERT J. BRYAN United States District Judge