Grill v. Quinn

Filing 29

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/18/2011 ORDERING 24 Plaintiff's motion to amend his complaint, filed 3/22/2011, is GRANTED; the amended complaint, is DEEMED filed as of the date of this order; and defendant shall file a response to the amended complaint within 28 days of this order. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES S. GRILL,

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Plaintiff,

Defendant.

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No. CIV S-10-0757 GEB GGH PS

ORDER

vs.
TOM QUINN,

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Presently before this court is plaintiff’s motion to amend his complaint, filed

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March 22, 2011, which is opposed by defendant.1 This court’s findings and recommendations,

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issued December 29, 2010, and adopted by the district court on March 1, 2011, recommended

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dismissal of plaintiff’s Fifth Amendment Takings claim and his equitable estoppel claim. The

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motion to dismiss the breach of contract claim was denied. Plaintiff was invited to file a motion

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to amend his complaint to additionally allege a claim for lack of procedural due process. The

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parties’s papers in connection with that motion and proposed amended complaint have now been

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reviewed.

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The motion was taken under submission without a hearing on April 14, 2011.
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DISCUSSION
The proposed amended complaint contains two distinct causes of action for (1)

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breach of contract and (2) lack of procedural due process. Defendant opposes the motion,

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arguing that the proposed amended complaint contains language appearing to reallege the

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previously rejected claims, and the new procedural due process claim appears to reallege the

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already pled APA claim and previously dismissed Fifth Amendment Taking claim.

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I. Claim for Breach of Contract

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In the findings and recommendations, the undersigned construed the breach of

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contract claim as a claim arising from application of 16 U.S.C. § 3210(a), the Alaska National

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Interest Land Conservation Act (ANILCA), and that the settlement agreement alleged to have

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been violated by defendant was very much dependent on that statute. The court framed the actual

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issue as whether the Forest Service violated the APA (5 U.S.C. section 702) in connection with

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its application of § 3210(a).

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Defendant now asserts in opposition that the proposed amended complaint does

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not add any new facts or basis to support a claim under the APA but rather realleges the claim for

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breach of contract. The findings and recommendations, as adopted by the district court, did not

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require that plaintiff amend his complaint as to this claim. In fact, the motion to dismiss was

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specifically denied in regard to Claim 1, the breach of contract claim. Although plaintiff has not

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improved upon his pleading with respect to this claim, and it contains erroneous references to the

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Fifth Amendment and other takings clause verbiage, as this court previously noted, it would not

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construe claims other than the three claims that were clearly labeled, and would construe the

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excess language as “simply expressive of plaintiff’s frustration,” and “not fleshed out in any

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cognizable fashion.” Findings and Recommendations (Dkt. # 19 at 5.)

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519,

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520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th

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Cir. 1988). The court is mindful to “liberally construe the inartful pleading of pro se litigants,”
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Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) (quotations omitted), and “to ensure that

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pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of

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technical procedural requirements,” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th

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Cir.1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se

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plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before

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dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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As the complaint was previously found to be sufficient in regard to the breach of

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contract claim as construed by the court, further amendment will not be required. Clarification is

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in order, however. As fully set forth in the findings and recommendations, the breach of contract

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claim is construed as a claim under section 702 of the APA. The amended complaint is

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construed to contain no claim arising in tort or under the Fifth Amendment, as also previously

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explained in the earlier findings and recommendations.

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II. Lack of Procedural Due Process

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Plaintiff has added a second claim for lack of procedural due process based on the

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instructions in the findings and recommendations.2 Defendant objects to this claim as nothing

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more than a restatement of plaintiff’s APA complaint. Defendant also raises the same objections

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made in regard to Claim 1, that plaintiff has made an attempt to insert a Fifth Amendment

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Takings Claim by using terms of art for such a claim. A review of the proposed amended

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complaint at Claim 2 does reveal occasional reference to the Fifth Amendment and “regulatory

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taking;” however, aside from this excess language pertaining to a claim which the court already

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found to be bereft of jurisdiction, and construing the pleading liberally as required, plaintiff has

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stated a claim for lack of procedural due process. In addition to the allegation that defendant

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The court found no jurisdiction for a Takings Claim, but noted that plaintiff may be
attempting to state a claim for lack of procedural due process. Plaintiff was invited to amend his
complaint to add such a claim if he so desired. The court specifically stated that it was not
opining whether such a claim would be duplicative of claim I or would otherwise have merit.
Findings and Recommendations (Dkt. # 19 at 12.)
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arbitrarily terminated the use permit without procedural due process, plaintiff alleges that

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defendant “informed plaintiff that there was no appeal from their aforementioned administrative

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decisions. (Proposed A.C. at ¶ 62.)

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend his complaint, filed March 22, 2011, is granted.

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2. The amended complaint, filed March 22, 2011, is deemed filed as of the date

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of this order.

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3. Defendant shall file a response to the amended complaint within 28 days of

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this order.

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DATED: July 18, 2011
/s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

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GGH:076/Grill757.ac

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