Priestley v. Two houses et al

Filing 19

ORDER - Plaintiff's amended complaint (Doc. 13 ) is dismissed without prejudice. Plaintiff shall have one more opportunity to file an amended complaint that complies fully with this order and Rule 8 of the Federal Rules of Civil Procedure. P laintiff may file a second amended complaint on or before April 28, 2017. The Clerk of Court shall terminate this action without further order of the Court if Plaintiff fails to file a second amended complaint by May 1, 2017. Plaintiff's motion to order U.S. Marshal's service to serve Plaintiff's complaint (Doc. 15 ) is denied without prejudice. Signed by Judge David G Campbell on 4/10/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV16-4126 PHX DGC

John Priestley, Jr.,
Plaintiff,

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v.

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ORDER

Two houses in Buckeye, Maricopa County,
AZ, et al.,

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Defendants.

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Plaintiff John Priestley, Jr., apparently as a beneficiary of the John Priestley, Sr.

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Trust, filed his complaint in this case on November 28, 2016.

Doc. 1.

On

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January 30, 2017, the Court screened Plaintiff’s complaint, entered an order dismissing

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the complaint for failure to state a claim, and granted Plaintiff until February 24, 2017 to

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file an amended complaint. Doc. 12. The Court has reviewed Plaintiff’s amended

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complaint and will dismiss it for failure to state a claim, failure to follow Rule 8 of the

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Federal Rules of Civil Procedure, and failure to follow this Court’s order of January 30,

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2017. Id. Plaintiff has also filed a motion to order the U.S. Marshal to serve Plaintiff’s

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complaint. Doc. 15. The Court will deny the motion without prejudice.

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I.

Legal Standard.

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In IFP proceedings, a district court “shall dismiss the case at any time if the court

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determines that . . . the action . . . fails to state a claim on which relief can be granted[.]”

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28 U.S.C. § 1915(e)(2). While much of § 1915 concerns prisoner litigation, § 1915(e)

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applies to all IFP proceedings. Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000)

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(en banc). “Section 1915(e)(2)(B)(ii) . . . allows a district court to dismiss[] sua sponte

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. . . a complaint that fails to state a claim[.]” Id. at 1130. “It is also clear that section

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1915(e) not only permits but requires a district court to dismiss an in forma pauperis

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complaint that fails to state a claim.” Id. at 1127. A district court dismissing a case

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under this section “should grant leave to amend even if no request to amend the pleading

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was made, unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Id. at 1127-29 (citations omitted).

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II.

Plaintiff’s Amended Complaint.

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Plaintiff’s claims appear to be focused on two houses in Buckeye, Arizona, that

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previously were held in the John Priestly, Sr. Trust. Plaintiff sues the Internal Revenue

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Service, the Public Integrity Section of the United Sates Department of Justice, three

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judges, some attorneys, and others. His 21-page complaint contains a rambling narrative

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that appears to allege various wrongs committed by Defendants, including violations of

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various state and federal statutes. The complaint also describes a case, apparently filed in

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Cleveland County, Oklahoma, where Plaintiff claims to have received a default judgment

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against some party, labeled “Trustee,” and Plaintiff now seeks an execution of that

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judgment under Fed. R. Civ. P. 69. Plaintiff makes additional requests from the Court,

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including that the Court require an accounting of the trust, a criminal investigation, and

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other forms of relief that are not clear.

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Plaintiff alleges a number of facts in his amended complaint, but most are

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incomplete and fail to either identify the actor or provide needed context. Furthermore,

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the complaint frequently fails to connect Plaintiff’s alleged facts to his claims. Plaintiff

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also includes several attachments in his complaint, and occasionally cites them. These

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attachments include legal documents filed in a state court in Oklahoma, excerpts of

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testimony, news article on an Oklahoma state judge, internet comments reacting to the

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article, photocopied checks, an unauthenticated letter from Randi Jo Haley, as well as a

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number of financial documents, diagrams, and hand written charts.

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The Court has carefully reviewed the complaint, and finds it defective. The
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amended complaint fails to state the basis for this Court’s jurisdiction, the legal nature of

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Plaintiff’s claim, or the actions of Defendants that give rise to liability.

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A.

Rule 8.

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As an initial matter, the Court finds that the entire complaint may be dismissed

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under Rule 8. That rule provides that a complaint should contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A

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complaint that fails to comply with these requirements may be dismissed. See McHenry

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v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996).

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Plaintiff fails to allege specific facts showing how each Defendant violated the

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particular right at issue in a given count. Plaintiff scatters facts throughout the complaint

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and includes allegations that seem irrelevant.

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complaint with leave to file a second amended complaint.

The Court will therefore dismiss the

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B.

Immune Parties.

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Plaintiff sues three judges. Specifically, Plaintiff states that “[t]hree Judges have

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an affirmative duty under 58 O.S. 234 Chapter 3 that is not discretionary, and have

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repeatedly refused to use the statutory tools at their disposal to compel the accounting or

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prevent or remedy damages caused by third parties in their courts.” Doc. 13 at 18. As

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best the Court can surmise, Plaintiff alleges that Oklahoma judges ordered an accounting

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of the trust in question and have not fulfilled their duty to enforce the order.

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The Court need not sift through more because each judge in question is entitled to

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judicial immunity for decision made in the adjudication of cases. Forrester v. White, 484

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U.S. 219, 227 (1988) (“When applied to the paradigmatic judicial acts involved in

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resolving disputes between parties who have invoked the jurisdiction of a court, the

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doctrine of absolute judicial immunity has not been particularly controversial.”) Because

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each violation Plaintiff alleges against these judges stems from a decision made from the

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bench, Plaintiff’s claims may not stand.

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C.

Jurisdiction.

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A federal court must have both subject matter and personal jurisdiction to hear a

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claim.

Plaintiff bears the burden of demonstrating that jurisdiction is appropriate.

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Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). When a

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plaintiff fails to allege facts sufficient to establish both subject matter and personal

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jurisdiction, his claims must be dismissed.
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Subject Matter Jurisdiction.

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A court has subject matter jurisdiction over claims that arise under federal law

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(“arising under” jurisdiction), or claims involving parties that are completely diverse and

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an amount in controversy greater than $75,000 (“diversity” jurisdiction). 28 U.S.C. §

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1331-32. Plaintiff appears to argue that the Court has diversity jurisdiction. See Doc. 13

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at 4 (“The compensatory damages far exceed the Federal Jurisdictional minimum of

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$75,000”). Although Plaintiff alleges an amount in controversy greater than the federal

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minimum, he fails to allege the citizenship of any party and thus does not establish

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diversity jurisdiction.

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Plaintiff also seems to argue that the Court has “arising under” jurisdiction, and

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may exercise supplemental jurisdiction over Plaintiff’s state law claims. Specifically,

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Plaintiff alleges that the Court has jurisdiction under 42 U.S.C. §§ 1942, 1983, 1985,

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1986, “U.S.C. Chapter 12, and 18 U.S.C. Chapter 63.” Doc. 13 at 6, 18. If Plaintiff is

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able to state a claim under one of the listed statutes, the Court does have subject matter

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jurisdiction.

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2.

Personal Jurisdiction.

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Subject matter jurisdiction alone is not sufficient. A court must also have personal

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jurisdiction over the parties involved. “Federal courts ordinarily follow state law in

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determining the bounds of their jurisdiction over persons.” Walden v. Fiore, 134 S. Ct.

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1115, 1121 (2014) (citation omitted). Arizona has authorized its courts to exercise

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jurisdiction to the maximum extent permitted by the Due Process Clause of the U.S.

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Constitution. See Ariz. R. Civ. P. 4.2(a). Thus, courts in the District of Arizona may
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exercise jurisdiction over a defendant who is not physically present in Arizona if the

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defendant has minimum contacts with the State, such that the suit can be maintained

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without offending traditional notions of fair play and substantial justice. Int’l Shoe Co. v.

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Washington, 326 U.S. 310, 316 (1945).

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Plaintiff fails to allege how any party is connected with Arizona. Plaintiff’s only

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Arizona reference is to two houses in Buckeye, Arizona, which Plaintiff alleges were

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purchased with funds from the trust. Plaintiff does not allege who purchased them, when,

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or from where. Instead, Plaintiff states that he is entitled to an “Execution of Judgment of

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Constructive Trust” on the two houses pursuant to Rule 69. Doc. 13 at 11. Plaintiff has

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failed to allege sufficient facts to show that any Defendant has a meaningful connection

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with Arizona such that the Court may exercise personal jurisdiction over it.

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D.

Federal Law Claims.

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Plaintiff alleges that Defendants have engaged in violations of 42 U.S.C. §1942,

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§ 1983, § 1985, § 1986, and “U.S.C. Chapter 12, and 18 U.S.C. Chapter 63.” Doc. 13 at

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6, 18. Plaintiff also asserts that Defendants have “violate[d] the federally protected civil

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rights of the Plaintiff under the first, sixth and fourteenth amendments[.]” Id. at 7.

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Plaintiff fails to adequately state a claim for any of these wrongs.
1.

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42 U.S.C. § 1942, “U.S.C. Chapter 12.”

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42 U.S.C. § 1942 does not exist. Similarly, the Court cannot determine what

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claim Plaintiff is attempting to make with regard to “U.S.C. chapter 12.” It appears

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Plaintiff is attempting to assert a § 1983 claim.
2.

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42 U.S.C. § 1983.

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“To state a claim for relief in an action brought under § 1983, [plaintiffs] must

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[allege] that they were deprived of a right secured by the Constitution or laws of the

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United States, and that the alleged deprivation was committed under color of state law.”

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Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Plaintiff fails to state a

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claim under § 1983 because he has not identified what conduct, if any, was conducted by

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a state actor.
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Plaintiff does name the Internal Revenue Service and the Department of Justice

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Public Integrity Section as “respondent[s]” (Doc. 13 at 9-10), but he fails to identify any

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conduct by these parties that could be considered a deprivation of his constitutional

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rights. Plaintiff does allege that the I.R.S. violated his Fifth Amendment rights because

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he “has been delayed in discovering that he has plausibly overpaid the I.R.S. nearly

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$60,000[,]” and that the Public Integrity Section violated his Sixth and Fourteenth

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Amendment rights by apparently failing to investigate an “‘ethics crisis’ in the state of

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Alaska.” Id. But Plaintiff’s factual allegations fail to show that he was “deprived of a

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right secured by the Constitution or the laws of the United States” by either of these

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government entities.

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A defendant acts under color of state law where he or she exercises “power

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possessed by virtue of state law and made possible only because the wrongdoer is clothed

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with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988) (quotation marks

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and citation omitted). Plaintiff fails to allege that any other Defendant acted with the

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authority of state law, and thus cannot maintain a claim against them under § 1983.
3.

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Claims Under § 1985 and § 1986

Plaintiff alleges that this Court's jurisdiction is based in part on 42 U.S.C. § 1985

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and § 1986.

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discrimination and fails to allege sufficient facts to suggest a meeting of the minds to

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support a conspiracy claim. Plaintiff therefore fails to state claims under § 1985 and

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§ 1986.

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But the complaint does not contain any allegations of race-based

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18 U.S.C. Chapter 63.

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Plaintiff attempts to assert a claim under 18 U.S.C. Chapter 63. That chapter is

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contained within the Crimes and Criminal Procedures portion of the United States Code,

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and covers “Mail Fraud and Other Fraud Offenses.” 18 U.S.C. Ch. 63, §§ 1341-51.

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Plaintiff’s complaint fails to allege facts sufficient to identify, much less state a claim

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under, any specific statute, and fails to suggest how he can bring civil claims under

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criminal statutes.
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5.

Enforcement of Judgment under Rule 69.

Plaintiff seeks to enforce a default judgment he claims was obtained in a State
Court proceeding in Oklahoma. Plaintiff states:
Pursuant to Rule 69, Execution of Judgment of Constructive Trust on two
houses and one vehicle described in the Default Judgment (see exhibits- 14) rendered in January 2016 after lengthy delays and - fair warnings to the
Trustee. The Trustees have filed a motion to Vacate which was denied.
They have failed to raise a timely appeal. This complies with comity of the
courts.
Doc. 13 at 11.

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A party must have obtained a final judgment prior to seeking its enforcement

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under Rule 69. Under Rule 54, a judgment is defined as “a decree and any order from

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which an appeal lies.” Fed. R. Civ. P. 54(a). Plaintiff submits Exhibits 1 through 4 as

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evidence that he has obtained a final judgment.

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handwritten summary order from the District Court of Cleveland County (Doc. 13 at 25),

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a filing titled “Counterclaims” in the same court by John Priestly, Jr. (id. at 26-31), an

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“Amended Answer with Crossclaims Briefed” (id. at 32-37), a “Motion for Partial

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Summary Judgment” (id. at 38-39), and a “Journal Entry” (id. at 40). It appears that John

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Priestly, Jr., Plaintiff here, was the defendant in the Cleveland County Action, and all

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filings attached, save the summary order and journal entry, were made by him. Id.

Exhibits 1 through 4 contain a

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Plaintiff has not shown sufficient information for the Court to enforce judgment

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under Rule 69. The handwritten summary order is difficult to read, but it appears to be

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signed by a Judge Virgin and states that the “Court finds [plaintiff] is in default as to all

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motions pending. [Defendant/John Priestly, Jr.] to provide Court [with] proposed order.”

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Id. at 25. Plaintiff does not submit his subsequently proposed order, or the Cleveland

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County Court’s acceptance of that order. Instead, he submits previously filed documents

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that he filed. Plaintiff has not shown that a final judgment was entered upon which the

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Court may act. Accordingly, Plaintiff’s request for the Court to enforce judgment under

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Rule 69 will also be dismissed.

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E.

State Law Claims.

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As noted above, Plaintiff has failed to establish that this Court has diversity

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jurisdiction over his claims. Accordingly, the Court may only hear state law claims by

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exercising supplemental jurisdiction in conjunction with a federal law claim establishing

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subject matter jurisdiction. Because Plaintiff has failed to state a claim regarding any

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federal cause of action, the Court will not exercise supplemental jurisdiction over

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Plaintiff’s state law claims.

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III.

Leave to Amend and Plaintiff’s Obligations.

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“A pro se litigant must be given leave to amend his or her complaint unless it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”

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Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The Court will

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dismiss the amended complaint without prejudice and allow Plaintiff one more

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opportunity to file an amended complaint that states a claim for relief. Plaintiff shall

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have until April 28, 2017 to file an amended complaint that fully complies with this order

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and Rule 8 of the Federal Rules of Civil Procedure.

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Plaintiff is advised that he must become familiar with, and follow, the Federal

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Rules of Civil Procedure and the Rules of the United States District Court for the District

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of Arizona (“Local Rules”), which may be obtained in the Clerk of Court’s office. For

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purposes of the amended complaint, Plaintiff is directed to Rule 8 of the Federal Rules of

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Civil Procedure. Rule 8(a) provides that a complaint “must contain (1) a short and plain

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statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement of

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the claim showing that the pleader is entitled to relief, and (3) a demand for the relief

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sought.” Fed. R. Civ. P. 8(a). These pleading requirements shall be set forth in separate

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and discrete paragraphs. Rule 8(d) provides that each such paragraph “must be simple,

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concise, and direct.” Fed. R. Civ. P. 8(d)(1).

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The “short and plain statement of the claim” required by Rule 8(a)(2) must not

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only designate a cause of action, but must also include enough factual allegations to

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render the claim plausible. Iqbal, 556 U.S. at 677. Such factual allegations must provide
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enough information to “allow[] the court to draw the reasonable inference that the

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defendant[s are] liable for the misconduct alleged.” Id. at 678.

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If Plaintiff fails to prosecute this action or to comply with the rules or any Court

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order, the Court may dismiss the action with prejudice pursuant to Federal Rule of Civil

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Procedure 41(b).

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(holding that the district court did not abuse its discretion in dismissing a pro se

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plaintiff’s complaint for failing to comply with a court order).

See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

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Plaintiff is advised that this is his final opportunity to amend his complaint. This

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will be his third attempt, and if he fails again to state a claim, this case likely will be

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dismissed with prejudice.

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IT IS ORDERED:

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1.

Plaintiff’s amended complaint (Doc. 13) is dismissed without prejudice.

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2.

Plaintiff shall have one more opportunity to file an amended complaint that

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complies fully with this order and Rule 8 of the Federal Rules of Civil

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Procedure. Plaintiff may file a second amended complaint on or before

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April 28, 2017.

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3.

Court if Plaintiff fails to file a second amended complaint by May 1, 2017.

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The Clerk of Court shall terminate this action without further order of the

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Plaintiff’s motion to order U.S. Marshal’s service to serve Plaintiff’s
complaint (Doc. 15) is denied without prejudice.

Dated this 10th day of April, 2017.

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