Balik v. McCarthy
Filing
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FINDINGS and RECOMMENDATIONS recommending Dismissing Plaintiff's Complaint Without Leave to Amend, signed by Magistrate Judge Jennifer L. Thurston on 10/1/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due within 14 days. (Hall, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JEREMIAH BALIK,
Plaintiff,
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v.
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HON. KEVIN MCCARTHY,
Defendant.
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Case No.: 1:15-cv-01420 - AWI - JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING PLAINTIFF’S COMPLAINT
WITHOUT LEAVE TO AMEND
Plaintiff Jeremiah Balik initiated this action by filing a complaint against Congressman Kevin
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McCarthy in Kern County Superior Court on August 12, 2015. (Doc. 1 at-1 at 2) Defendant filed a
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Notice of Removal from the state court on September 18, 2015 (Doc. 1), thereby initiating the matter
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in this Court. Because, as discussed below, the Court finds Plaintiff’s claims are fanciful and
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frivolous, it is recommended that Plaintiff’s complaint be DISMISSED without leave to amend.
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I.
Screening Requirement
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Although Plaintiff has not requested to proceed in forma pauperis in this Court, the Kern
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County Superior Court granted him this status on September 3, 2015. (Doc. 1-4 at 2) When a plaintiff
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proceeds in forma pauperis, the Court is required to review the complaint, and shall dismiss the case at
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any time if the Court determines the action or appeal is “frivolous, malicious or fails to state a claim
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on which relief may be granted; or . . . seeks monetary relief against a defendant who is immune from
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such relief.” 28 U.S.C. 1915(e)(2).
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A claim is frivolous “when the facts alleged arise to the level of the irrational or the wholly
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incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v.
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Hernandez, 504 U.S. 25, 32-33 (1992); see also Neitzke v. Williams, 490 U.S. 319, 325, 328 (1989)
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(finding claims may be dismissed as “frivolous” where the allegations are “fanciful” or “describe[e]
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fantastic or delusional scenarios”).
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II.
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Pleading Requirements
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A
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complaint must include a statement affirming the court’s jurisdiction, “a short and plain statement of
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the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may
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include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a). The Federal Rules
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adopt a flexible pleading policy, and pro se pleadings are held to “less stringent standards” than those
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drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).
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A complaint must state the elements of the plaintiff’s claim in a plain and succinct manner.
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Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of a complaint
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is to give the defendant fair notice of the claims against him, and the grounds upon which the
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complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,
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Rule 8 does not require detailed factual allegations, but it 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.
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted).
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Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d
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266, 268 (9th Cir. 1982). The Court clarified further,
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[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. [Citation]. 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. [Citation]. 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.’
Iqbal, 556 U.S. at 678 (citations omitted). If factual allegations are well-pled, a court should assume
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their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the
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pleading are not entitled to the same assumption of truth. Id.
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III.
Plaintiff’s Allegations
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Plaintiff contends Congressman Upton learned he was “interacting with Super Model Kate
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Upton” on Twitter and “had a sophisticated way to communicate [with] her on Instagram,” which
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angered Defendant. (Doc. 1-1 at 9) According to Plaintiff, Upton did not want him dating a
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supermodel, and so Upton “called in a favor” with Congressman McCarthy and Chocolate Shoppe Ice
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Cream CEO David Deadman, “and told them not do to do business with [Plaintiff].” (Id.) He alleges
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also that Congressmen Upton and McCarthy called in favors to have “various law enforcement
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agencies, to have them unlawfully patrol around [Plaintiff]” and for Plaintiff’s phone to be “tampered
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with by numerous carriers.” (Id. at 11, 12)
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IV.
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Discussion and Analysis
Based upon the foregoing factual allegations, Plaintiff asserts Defendant is liable for harassment
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in violation of California Code of Civil Procedure 527.6, which “defines ‘harassment’ as ‘unlawful
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violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific
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person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.’”
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Rockridge Trust v. Wells Fargo, N.A., 985 F. Supp.2d 1110, 1155 (N.D. Cal. 2013) (quoting Cal. Civ.
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P. § 527.6) In addition, the alleged actions “must be such that would cause a reasonable person to
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suffer substantial emotional distress, and must actually cause substantial emotional distress to the
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[plaintiff].” (Id.)
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Here, Plaintiff has not alleged any acts of violence, threats of violence, or conduct that
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“seriously alarms, annoys, or harasses the person” by Congressman McCarthy. Furthermore, the
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allegations—namely, that Congressman McCarthy has “called in favors” with individuals to law
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enforcement officers to follow Plaintiff or is responsible for the Chocolate Shoppe Ice Cream CEO
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deciding to not do business with Plaintiff—are have no factual support. In short, the Court finds the
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allegations—that Plaintiff has a social relationship with a super model, that a Congressman has such a
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pronounced interest in Plaintiff’s social networking life as to become angry, that, in this angry state, the
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Congressman engaged the assistance of another Congressman and an ice cream store executive to
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thwart the social networking relationship—to be lacking all credibility and all plausibility. Iqbal, 556
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U.S. at 678. Accordingly, the Court finds Plaintiff’s allegations are fanciful, and lack an arguable basis
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in fact. See Denton, 504 U.S. at 32-33.
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V.
Findings and Recommendations
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Plaintiff fails to state a cognizable claim for civil harassment in violation of California law.
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Moreover, given the fanciful nature of Plaintiff’s claims, the Court finds leave to amend would be
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futile. See Iqbal, 556 U.S. at 679 (noting that a court should “draw on its judicial experience and
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common sense” to determine whether a claim is plausible); Denton, 504 U.S. at 32-33 (a court may
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dismiss a claim as frivolous if the alleged facts are “clearly baseless,” “fanciful,” or “fantastic”); Lopez
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v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case law, district courts are only
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required to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant
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leave to amend if a complaint lacks merit entirely”).
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Based upon the foregoing, IT IS HEREBY RECOMMENDED:
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Plaintiff’s complaint be DISMISSED without leave to amend; and
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The Clerk of Court be directed to close this matter.
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These Findings and Recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local
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Rules of Practice for the United States District Court, Eastern District of California. Within fourteen
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days after being served with these Findings and Recommendations, any party may file written
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objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).
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IT IS SO ORDERED.
Dated:
October 1, 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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