Johnson v. Schmidt

Filing 4

ORDER directing Plaintiff as follows: 1) Plaintiff may file a First Amended Complaint curing the deficiencies identified by the Court in this order if he believes additional true factual allegations would state a claim, within thirty (30) days from t he date of service of this order; 2) If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended complaint First Amended Complaint and refer to the case number 1:17-cv-01447-LJO-EPG; 3) Alternatively, within thirty (30) day s from the date of service of this order, Plaintiff may notify the Court that he wishes to stand on his original complaint, subject to this Court issuing findings and recommendations to the assigned district court judge recommending that the case be dismissed for failure to state a claim; and 4) If Plaintiff fails to file an amended complaint or notify the Court that he wishes to stand on this complaint within thirty (30) days from the date of service of this order, the Court will issue findings and recommendations to the assigned district court judge recommending that Plaintiff's case be dismissed for failure to state a claim and failure to comply with a Court order. Order signed by Magistrate Judge Erica P. Grosjean on 1/30/2018. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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R. WAYNE JOHNSON,

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Plaintiff,
v.

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ORDER FOR PLAINTIFF TO:
(1) FILE A FIRST AMENDED
COMPLAINT; OR,

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Case No. 1:17-cv-01447-LJO-EPG

WILLIAM L. SCHMIDT,
Defendant.

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(2) NOTIFY THE COURT THAT HE
WISHES TO STAND ON HIS
COMPLAINT, SUBJECT TO FINDINGS
AND RECOMMENDATIONS TO THE
DISTRICT JUDGE CONSISTENT WITH
THIS ORDER

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(ECF No. 1)

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THIRTY (30) DAY DEADLINE

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Plaintiff R. Wayne Johnson, appearing pro se and in forma pauperis, is a prisoner in the
custody of Texas Department of Criminal Justice. On October 26, 2017, Plaintiff commenced this
action against William L. Schmidt, Esq. alleging violation of Texas Government Code §
82.0651(b)-(c). (ECF No. 1).
The Court has screened the complaint and has determined that Plaintiff has failed to state
any cognizable claims. The Court will grant Plaintiff leave to amend his complaint to state a
claim. In the alternative, Plaintiff may notify the Court that he wishes to stand on the current
complaint, in which case the Court will issue findings and recommendations to the district judge

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recommending dismissal of this action consistent with this order.
I.

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LEGAL STANDARD
Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of a pro se complaint to

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determine whether it “state[s] a claim on which relief may be granted,” is “frivolous or

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malicious,” or “seek[s] monetary relief against a defendant who is immune from such relief.” If

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the Court determines that the complaint fails to state a claim, it must be dismissed. Id. An action

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is frivolous if it is “of little weight or importance: having no basis in law or fact” and malicious if

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it was filed with the “intention or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121

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(9th Cir. 2005). Leave to amend may be granted to the extent that the deficiencies of the

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complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

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at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal

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conclusions are not. Id. at 678.

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In determining whether a complaint states an actionable claim, the Court must accept the

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allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740

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(1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v.

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins

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v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less

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stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342

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(9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after

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Iqbal).

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II.

PLAINTIFF’S ALLEGATIONS
Plaintiff’s allegations are difficult to understand. From what the court can glean, Plaintiff
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alleges that Defendant, an attorney practicing in Fresno, California, solicited employment in

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Prison Legal News in violation of Texas Government Code § 82.0651(b)-(c). Plaintiff attaches to

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the Complaint a copy of the advertisement from the Prison Legal News.

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III.

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DISCUSSION
Texas Government Code § 82.0651 provides, in pertinent part:
a) A client may bring an action to void a contract for legal services
that was procured as a result of conduct violating Section 38.12(a)
or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of
Professional Conduct of the State Bar of Texas, regarding barratry
by attorneys or other persons, and to recover any amount that may
be awarded under Subsection (b). A client who enters into a
contract described by this subsection may bring an action to recover
any amount that may be awarded under Subsection (b) even if the
contract is voided voluntarily.
(b) A client who prevails in an action under Subsection (a) shall
recover from any person who committed barratry:
(1) all fees and expenses paid to that person under the contract;

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(2) the balance of any fees and expenses paid to any other person
under the contract, after deducting fees and expenses awarded
based on a quantum meruit theory as provided by Section
82.065(c);

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(3) actual damages caused by the prohibited conduct;

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(4) a penalty in the amount of $10,000; and

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(5) reasonable and necessary attorney's fees.

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(c) A person who was solicited by conduct violating Section
38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary
Rules of Professional Conduct of the State Bar of Texas, regarding
barratry by attorneys or other persons, but who did not enter into a
contract as a result of that conduct, may file a civil action against
any person who committed barratry.

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In turn, Tex. Penal Code Ann. § 38.12 (West) provides, in pertinent part:
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(a) A person commits an offense if, with intent to obtain an
economic benefit the person:
(1) knowingly institutes a suit or claim that the person has not been
authorized to pursue;
(2) solicits employment, either in person or by telephone, for
himself or for another;
(3) pays, gives, or advances or offers to pay, give, or advance to
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prospective client money or anything of value to obtain
employment as a professional from the prospective client;

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(4) pays or gives or offers to pay or give person money or anything
of value to solicit employment;

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(5) pays or gives or offers to pay or give a family member of a
prospective client money or anything of value to solicit
employment; or

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(6) accepts or agrees to accept money or anything of value to solicit
employment.

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Similarly, Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State
Bar of Texas provides, relevant part:

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(a) A lawyer shall not by in-person contact, or by regulated
telephone or other electronic contact as defined in paragraph (f)
seek professional employment concerning a matter arising out of a
particular occurrence or event, or series of occurrences or events,
from a prospective client or nonclient who has not sought the
lawyer's advice regarding employment or with whom the lawyer
has no family or past or present attorney-client relationship when a
significant motive for the lawyer's doing so is the lawyer's
pecuniary gain. . . .

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(f) As used in paragraph (a), “regulated telephone or other
electronic contact” means any electronic communication initiated
by a lawyer or by any person acting on behalf of a lawyer or law
firm that will result in the person contacted communicating in a
live, interactive manner with any other person by telephone or other
electronic means. For purposes of this Rule a website for a lawyer
or law firm is not considered a communication initiated by or on
behalf of that lawyer or firm.

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In essence, relevant to Plaintiff’s claim, Texas Gov’t Code § 82.0651 prohibits an attorney

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from soliciting employment in person or by telephone. Plaintiff alleges that Defendant solicited

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employment in Prison Legal News. Tex. Gov’t Code § 82.0651 does not prohibit this conduct.

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Plaintiff alleges no other allegations that could fairly be construed to violate § 82.0651.
Thus, Plaintiff fails to state any cognizable claim for relief.1

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IV.

CONCLUSION AND ORDER
The Court finds that the Complaint fails to state any cognizable claims upon which relief

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Additionally, Plaintiff seeks damages in the amount of $100,000. Tex. Gov’t Code § 82.0651provides for recovery
of actual damages caused by any prohibited conduct and a penalty in the amount of $10,000. Plaintiff’s allegations,
taken as true, would not meet the $75, 000 amount in controversy threshold to invoke the Court’s subject matter
jurisdiction. See 28 U.S. Code § 1332.

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may be granted. Under Rule 15(a) of the Federal Rules of Civil Procedure, “leave to amend shall

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be freely given when justice so requires.” Accordingly, the Court will provide Plaintiff with time

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to file an amended complaint curing the deficiencies identified above. Lopez v. Smith, 203 F.3d

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1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file an amended complaint within

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thirty days, if he chooses to do so.

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Plaintiff should note that although he has been given the opportunity to amend, it is not for

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the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey v.

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Maricopa County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and must be complete in

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itself without reference to the prior or superseded pleading. Local Rule 220. Therefore, in an

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amended complaint, as in an original complaint, each claim must be sufficiently plead. Plaintiff

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should also set forth sufficient facts to establish that the Court has subject matter jurisdiction over

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his claims in accordance with 28 U.S.C. § 1332 or any other law. The amended complaint should

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be clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and

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be an original signed under penalty of perjury.

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Plaintiff may also choose to stand on his original complaint, in which case the Court will

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issue findings and recommendations to the assigned district court judge recommending that the

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case be dismissed for failure to state a claim.

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Based on the foregoing, it is HEREBY ORDERED that:

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the Court in this order if he believes additional true factual allegations would state

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a claim, within thirty (30) days from the date of service of this order;

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2.

1:17-cv-01447-LJO-EPG;

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If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the
amended complaint “First Amended Complaint” and refer to the case number

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Plaintiff may file a First Amended Complaint curing the deficiencies identified by

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Alternatively, within thirty (30) days from the date of service of this order,
Plaintiff may notify the Court that he wishes to stand on his original complaint,
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subject to this Court issuing findings and recommendations to the assigned district

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court judge recommending that the case be dismissed for failure to state a claim;

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and

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If Plaintiff fails to file an amended complaint or notify the Court that he wishes to

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stand on this complaint within thirty (30) days from the date of service of this

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order, the Court will issue findings and recommendations to the assigned district

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court judge recommending that Plaintiff’s case be dismissed for failure to state a

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claim and failure to comply with a Court order.

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IT IS SO ORDERED.
Dated:

January 30, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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