Barker et al v, Internal Revenue Service et al

Filing 46

ORDER signed by Senior Judge Consuelo B. Marshall on 1/27/14 ORDERING that Plaintiff Randy Barker's Motion for Remand is DENIED. Defendant IRS is DISMISSED from this case because the Defendant UnitedStates has substituted for Defendant IRS. Th e Court DISMISSES the Second, Fourth, Fifth, and Tenth Causes of Action without prejudice as to all remaining Defendants. Plaintiffs' Third Cause of Action is DISMISSED without prejudice as to Defendants City of Chico and County of Butte. Plai ntiffs' Third Cause of Action is DISMISSED with prejudice as to all remaining Defendants. The Court DISMISSES the First, Sixth, Seventh, Eighth, Ninth, and Eleventh Causes of Action with prejudice as to all Defendants. Plaintiffs may file an amended complaint no later than 2/27/2014. A failure to file an amended complaint will result in dismissal with prejudice. Additionally, Plaintiffs have failed to effect service on several Defendants during this case. Plaintiffs are reminded that they are required to properly serve any amended complaint according to the relevant rules of civil procedure. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RANDY K. BARKER, et al.
Plaintiffs,

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Case No. 13-CV-1517-CBM
ORDER RULING ON
DEFENDANTS’ MOTIONS TO
DISMISS AND PLAINTIFFS’
MOTION FOR REMAND

v.
INTERNAL REVENUE SERVICE, et
al.,

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Defendants.

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Before the Court are the following:

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the United States. (Docket No. 17.)

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•
•
•
•

Motion to Dismiss filed by Defendant Joseph Wiseman. (Docket No.
32.)

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Motion to Dismiss filed by Defendant James Greiner. (Docket No.
20.)

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Motion to Dismiss filed by Defendant County of Butte. (Docket No.
19.)

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Motion to Dismiss filed by Defendants Douglas Schulman, Maria
Martinez, Colleen Rowe, J. Russell George. (Docket No. 18.)

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Motion to Dismiss filed by Defendants Internal Revenue Service and

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Notice of Joinder filed by Defendants City of Chico and Kirk Trostle.
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(Docket No. 38.)

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“Objection to Defendants’ Removal” filed by Plaintiff Randy Barker,
which the Court interprets as a Motion for Remand. (Docket No. 29.)

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The Court denies Plaintiff Randy Barker’s Motion for Remand.

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Defendant IRS is dismissed from this case because the Defendant United

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States has substituted for Defendant IRS.
The Court dismisses the Second, Fourth, Fifth, and Tenth Causes of Action
without prejudice as to all remaining Defendants.

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Plaintiffs’ Third Cause of Action is dismissed without prejudice as to

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Defendants City of Chico and County of Butte. Plaintiffs’ Third Cause of Action

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is dismissed with prejudice as to the remaining Defendants.

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The Court dismisses the First, Sixth, Seventh, Eighth, Ninth, and Eleventh
Causes of Action with prejudice as to all Defendants.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

The case arises from the arrest and prosecution of Plaintiff Randy Barker

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and his wife, Tamara Barker (the “Barkers”). The Barkers engaged in a tax fraud

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scheme, by which the Barkers obtained a $987,000 fraudulent tax refund from the

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Internal Revenue Service (“IRS”). Tragically, on August 21, 2012, Ms. Barker

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committed suicide during the pendency of the criminal litigation. (CR 12-266

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Docket No. 33.) On February 14, 2013, Plaintiff Randy Barker was convicted in

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the criminal litigation of three counts and later sentenced to 46 months in custody

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followed by 36 months of supervised release. (CR 12-266, Docket No. 171.)

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On June 28, 2013, Plaintiff Randy Barker and his son Plaintiff Jason Barker

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filed the instant Complaint, styled as “Verified Complaint For Trespass: Wrongful

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Death,” in Butte County, California Superior Court. (Notice of Removal at 2:4-6

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(the “Complaint”) (Docket No. 1).) Defendants include:

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1.

The IRS;

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2.

Jared Dolan, an attorney at the U.S. Attorney’s Office;

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3.

Douglas Schulman, a former Commissioner of the IRS (“Schulman”);

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4.

J. Russell George, the Treasury Inspector General for Tax
Administration (“George”);

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5.

Maria Martinez, an IRS special agent (“Martinez”);

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6.

Colleen Rowe, an IRS special agent (“Rowe”);

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7.

Matthew Bockman, a “federally appointed attorney;”

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8.

Joseph Wiseman, one of Plaintiff Randy Barker’s former attorneys
(“Wiseman”);

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9.

James Greiner, one of Plaintiff Randy Barker’s former attorneys
(“Greiner”);

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10.

The State of California;

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11.

The County of Butte (the “County”);

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12.

The City of Chico;

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13.

Kirk Trostle, the chief of the Chico Police Department (“Trostle”);

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14.

Unnamed Chico Police Officer #1;

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The United States.

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On July 25, 2013, three of the Defendants—the former Commissioner of the

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IRS and the two IRS special agents—removed the Complaint to federal court. On

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August 27, 2013, Plaintiff Randy Barker filed a document called “Objection to

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Defendants’ Removal,” which the Court interprets to be a Motion for Remand.

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Plaintiffs’ 105-page Complaint contains numerous conclusory, outlandish,

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and offensive statements. Much of Plaintiffs’ allegations relate to the July 12,

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2012 arrest of the Barkers at their residence. (Compl. ¶¶ 4.04-4.07.) Plaintiffs

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allege in conclusory fashion that the Barkers were “illegally taken and kidnapped”

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by law enforcement, who then “unlawfully assaulted and battered” and “falsely

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imprisoned” the couple as part of a “military aggression.” (Id. at ¶ 4.07.)

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Plaintiffs allege that (1) law enforcement should not have arrested the
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Barkers and instead should have only issued a summons; (2) Defendant Martinez

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(one of the IRS special agents) drafted a false criminal complaint; (3) Defendants

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Wiseman and Greiner (two of Plaintiff Randy Barker’s former appointed criminal

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attorneys), along with others, prevented Plaintiff Randy Barker from accessing the

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Superior Court in Chico, California on October 30, 2012. (See id. at ¶¶ 5.02, 5.57,

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5.85.)

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Plaintiffs allege eleven causes of action:

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1.

“SLAPP suit;”

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2.

Wrongful Death;

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3.

Monell Claims;

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4.

Ralph Civil Rights Act under Cal. Civ. Code § 51.7;

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5.

Wrongful Death Due to Negligence;

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6.

Civil RICO;

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7.

Treason;

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8.

Cruel and Inhumane Punishment;

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9.

Cruel and Inhumane Punishment (styled as “Reestablishment of
Debtors Prisons”);

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10.

Trespass;

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11.

Invalidity of Title 18 of the United States Code.

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All causes of action are directed at all Defendants. Plaintiffs seek $55.3 million in

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damages. (Id. at ¶ 11.04.)

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In August and September 2013, the moving Defendants filed the instant

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Motions. Plaintiffs have not opposed any of the Motions. On October 31, 2013,

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Plaintiff Randy Barker self-surrendered to law enforcement to begin a 46-month

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prison sentence. (Notice of Incarceration at 1 (Docket No. 41).) Plaintiff Randy

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Barker is imprisoned at FCI Herlong in Herlong, California.

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II.

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STANDARD OF LAW

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a

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complaint for “failure to state a claim upon which relief can be granted.”

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Dismissal of a complaint can be based on either a lack of a cognizable legal theory

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or the absence of sufficient facts alleged under a cognizable legal theory. Somers

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v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). On a motion to dismiss for

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failure to state a claim, the court accepts as true all well-pleaded allegations of

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material fact and construes them in a light most favorable to the non-moving

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party. Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917, 922 (9th Cir. 2013).

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To survive a motion to dismiss, a complaint “must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167

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L. Ed. 2d 929 (2007)). A claim is facially plausible when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged. Salameh v. Tarsadia Hotel, 726

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F.3d 1124, 1129 (9th Cir. 2013) (citations omitted). If a complaint cannot be

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cured by additional factual allegations, dismissal without leave to amend is proper.

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Somers, 729 F.3d at 960.

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A complaint may be dismissed for lack of subject-matter jurisdiction. FED.

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R. CIV. P. 12(b)(1). And, a complaint may be dismissed for insufficient service of

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process. FED. R. CIV. P. 12(b)(5).

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III. DISCUSSION
A.

Plaintiff Randy Barker’s Motion for Remand

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The Individual IRS Defendants removed the case to the Eastern District of
California under 28 U.S.C. §§ 1441(a) and 1442(a)(1). Under 28 U.S.C. §
1442(a)(1), a civil action against the United States, any agency of the United
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St
tates, or an officer of the Unite States m be rem
ny
o
ed
may
moved to fe
ederal distr court.
rict

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28 U.S.C. § 1442(a)(1). The Ind
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dividual IR Defenda can un
RS
ants
nilaterally r
remove

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th case to federal cou under 28 U.S.C. § 1442(a)(1) without t consen of the
he
f
urt
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the
nt

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ot
ther Defend
dants. Dur
rham v. Lo
ockheed M
Martin Corp 445 F.3d 1247, 12 (9th
p.,
d
253

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Ci 2006). Furthermo Plaintiff Randy B
ir.
ore,
Barker’s ar
rgument th remand is
hat

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ap
ppropriate because he believes the Eastern District i corrupt i not persu
e
t
n
is
is
uasive.

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Co
ourts have rejected si
imilarly un
nsupported argument in other cases. See e.g.,
d
ts
e,

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.
Re
esendez v. United Sta
ates, 96 Fe Cl. 283, 287 (Fed. Cl. 2010) (rejecting fanciful
ed.
,
)
g

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claims that the federal governme and the state of Te
t
ent
exas engag in cons
ged
spiracy

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ag
gainst the plaintiff).
p
Plaint Randy Barker’s Motion for Remand is denied. P
tiff
M
Plaintiff R
Randy

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Ba
arker’s obj
jections to Defendants’ remova are denie The Co finds t the
al
ed.
ourt
that

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ca was pro
ase
operly rem
moved and that the Co has jur
t
ourt
risdiction o
over this m
matter.

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B.

Substitut
tion of Def
fendants
1.

Sub
bstitution of United States for Defenda IRS
d
r
ant

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The IR is not a suable en
RS
ntity and a suit agains the IRS i actually a suit
st
is

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ag
gainst the United Stat
U
tes. See Bl
lackmar v. Guerre, 3 U.S. 51 515, 72 S. Ct.
342
12,
2

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41 96 L. Ed. 534 (19
10,
E
952); White v. IRS, 79 F. Supp 1017, 10 (D. Nev 1990)
e
90
p.
019
v.

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(c
citing Black
kmar and holding tha “agencie such as t IRS are not suabl
h
at
es
the
e
le

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en
ntities”); Chang v. Sh No. CV 01-9672 DT (CWX 2002 W 129987 *9
C
hin,
V
X),
WL
73,

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(C Cal. Apr. 1, 2002) (Tevrizi J.) (cit
C.D.
A
ian,
ting Blackm and ho
mar
olding that “neither
t

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th Departm of Treasury nor the IRS is an entity s
he
ment
t
subject to s
suit”).

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Defen
ndant Unite States is substitute for Defe
ed
s
ed
endant IRS in this ma
S
atter.

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Defendant United Stat has requ
U
tes
uested that Defendan IRS be d
t
nt
dismissed b
because

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Defendant United Stat has been substitut for Def
U
tes
ted
fendant IRS. Defend IRS
dant

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is hereby dis
smissed fro this cas
om
se.

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2.

Sub
bstitution of United States for the Indiv
d
r
vidual IRS
S
Defendants and the In
a
nspector G
General in their Offi
icial
Ca
apacities

Defen
ndants Schu
ulman (the former IR Commi
e
RS
issioner), M
Martinez (a IRS
an
sp
pecial agen Rowe (another IR special a
nt),
(
RS
agent) (col
llectively t “Indivi
the
idual IRS
Defendants” and Geo
”),
orge (the Treasury In
T
nspector Ge
eneral) join filed a Motion
ntly
to Dismiss. Plaintiff sued the Ind
o
dividual IR Defend
RS
dants and D
Defendant G
George in
bo their of
oth
fficial and individual capacities (Compl. ¶¶ 3.12-3.15.) Thes
s.
.
se
Defendants request tha the United States b substitut for them in this li
at
be
ted
itigation.
(In IRS Motion at 6:10-16; Notice of Sub
nd.
M
bstitution (
(Docket No 16).)
o.
Substitution is not appropr
n
riate here. The Federal Tort Cl
laims Act (
(the
“F
FTCA”) pr
rovides tha a suit aga
at
ainst the U
United State shall be the exclus
es
sive
re
emedy for persons wi claims for damage resulting from the negligent or
p
ith
f
es
g
he
wrongful acts or omiss
sions of fed
deral empl
loyees take within th scope o their
en
of
of
ffice or em
mployment. 28 U.S.C § 2679(b
C.
b)(1). Inde “a suit against IR
eed,
t
RS
em
mployees in their offi
ficial capac is essen
city
ntially a su against the United States.”
uit
d
Gilbert v. DaGrossa, 756 F.3d 1455, 1458 (9th Cir. 1
G
7
1985).
However, there are two ex
e
xceptions t this rule (1) civil actions for
to
e:
r
vi
iolations un
nder the U.S. Constit
U
tution (i.e., Bivens claims) may be brough against
,
y
ht
a federal em
mployee, an (2) viola
nd
ations of a federal sta
atute where individua suits
e
al
ar authorize 28 U.S § 2679
re
ed.
S.C.
9(b)(2). Pl
laintiffs allege that th Individu IRS
he
ual
Defendants and Defen
ndant Georg acted in their individual cap
ge
n
pacities (as well as
th official capacities (Comp ¶¶ 3.12-3.15.) The Defend
heir
l
s).
pl.
ese
dants have provided
ev
vidence tha they wer acting on in their official capacities. (Aug. 26, 2013
at
re
nly
r
Declaration of David Shelledy ¶ 2 (Docket No. 16).) The Cour cannot co
S
t
rt
onsider
ev
vidence in ruling on a motion to dismiss u
o
under Fede Rule of Civil Pro
eral
ocedure
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2(b)(6) unl certain circumsta
less
n
ances—wh
hich do not apply in t case—
t
this
—are
pr
resent. Cf. Marder v. Lopez, 45 F.3d 445, 448 (9th Cir. 2006
.
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h
6).
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Plaintiffs’ allegations, to the extent they raise Bivens claims or claims

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against individuals authorized by a statute, could raise claims that are properly

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directed at these four Defendants. Accordingly, the Court denies the Individual

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IRS Defendants and Defendant George’s request to substitute Defendant United

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States for them.

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C.

Rule 8 Violations

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A complaint must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A district court may
dismiss a case for failure to comply with Rule 8. FED. R. CIV. P. 41(b). Plaintiffs’
105-page Complaint is verbose and confusing. Most problematically, the
Complaint repeatedly alleges in generic fashion that “Defendants” acted
unlawfully, without specifying which of the fifteen Defendants. Courts have
dismissed similar cases with leave to amend for failure to comply with Rule 8.
See, e.g., Mendez v. Trinh, No. SACV 11-1237 AG (ANx) (Docket No. 41), 2-4
(C.D. Cal. Dec. 9, 2011) (Guilford, J.) (dismissing without prejudice because
“there is no way for Defendants to prepare an answer to the Complaint as
drafted”); see also McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir. 1996)
(affirming dismissal with prejudice under Rule 8).
Here, the Complaint is so verbose and confusing that there is no way for
Defendants to prepare answers to the Complaint as drafted. Plaintiff’s violations
of Rule 8 merit dismissal. As discussed below, Plaintiff’s Complaint is dismissed
for additional reasons.
D.

Local Rule Violations

Plaintiffs did not timely oppose any of the pending Motions to Dismiss.
The Court deems Plaintiffs’ failure to timely oppose the Motions consent to the
granting of the Motions. C.D. Cal. R. 7-12; see also Sept. 4, 2013 Standing Order

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at 1 (Docket No. 34).

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E.

California Government Claims Act and Federal Tort Claims Act

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The California Government Claims Act (the “GCA”) requires a plaintiff to

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first present his tort claims against California government entities prior to filing
suit. CAL. GOV’T CODE § 905, 910, 945.4; see also Canova v. Trustees of Imperial
Irrigation Dist. Emp. Pension Plan, 150 Cal. App. 4th 1487, 1496-97 (2007). The
GCA requires that a cause of action relating to personal injuries must be presented
within six months after the accrual of the cause of action, while claims relating to
other causes of action must be presented within one year after accrual. CAL.
GOV’T CODE § 911.2; see also Canova, 150 Cal. App. 4th at 1496.
Under the FTCA, the United States has waived its sovereign immunity to

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permit suit for negligent or wrong acts of its employees that result in injury or
property loss. 28 U.S.C. § 2674. To sue under the FTCA, a plaintiff must first
present his claim to the appropriate federal agency. 28 U.S.C. § 2675(a).
Here, Plaintiffs have not alleged that they presented their claims to the

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appropriate California or federal entities. Accordingly, Plaintiffs have not
complied with the GCA or FTCA. Therefore, any causes of action directed at
California government entities must be dismissed without prejudice. Similarly,
any causes of action directed against the United States must be dismissed without
prejudice. Plaintiffs may choose to file an amended complaint. If Plaintiffs have
complied with the GCA and FTCA and choose to file an amended complaint,
Plaintiffs’ amended complaint must allege facts showing that they complied with
the GCA and FTCA.

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F.

First Cause of Action: SLAPP Suit

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Plaintiffs’ First Cause of Action is styled as “CCP § 425.15 SLAPP Suit.”1

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The Court interprets this cause of action as referring to California Civil Procedure § 425.16, California’s antiSLAPP statute. Section 425.15, which Plaintiffs sometimes cite, is not the anti-SLAPP statute.

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(Compl. at 1.) Plaintiffs direct this cause at all Defendants. (See id. at ¶ 5.19.)

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California’s “Anti-SLAPP” statute provides that:

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A cause of action against a person arising from any act of that person
in furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established
that there is a probability that the plaintiff will prevail on the claim.
CAL. CIV. PROC. CODE § 425.16(b)(1). The statute is designed “to allow early
dismissal of meritless first amendment cases aimed at chilling expression through
costly, time-consuming litigation.” Metabolife Intern., Inc. v. Wornick, 264 F.3d
832, 839 (9th Cir. 2001). None of Plaintiffs’ allegations allege facts showing that
an Anti-SLAPP motion under § 425.16 is appropriate in this matter. The Court
dismisses the First Cause of Action with prejudice as to all Defendants.

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G.

Second Cause of Action: Wrongful Death

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This cause of action is styled as a claim for wrongful death. (Compl. at 36.)

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Confusingly, Plaintiffs also refer to 42 U.S.C. § 1983, the 4th Amendment to the

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U.S. Constitution, and murder under California Penal Code § 187. (Id.) This

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cause of action is directed at all Defendants. (See, e.g., Compl. ¶¶ 5.34, 5.39.)

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The Court interprets this cause of action as a cause of action for wrongful death

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liability.

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The elements of a wrongful death cause of action are (1) the defendant

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committed a tort (negligence or other wrongful act); (2) the tort caused the

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decedent’s death; and (3) pecuniary damages suffered by the heirs of the deceased.

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Cal. Civ. Proc. §§ 377.60, 377.61; Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th

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1256, 1263 (2006).

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Here, Plaintiffs have failed to allege facts satisfying the elements of this
cause of action. Plaintiffs allege in conclusory fashion that Defendants—without

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10

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specifying which ones—engaged in a “military attack” when law enforcement

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arrested the Barkers, and that Defendants knew that the arrest would induce Ms.

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Barker to commit suicide. (Compl. ¶ 5.36.) Plaintiffs also allege in conclusory

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fashion that the Barkers were “illegally taken and kidnapped” by law enforcement,

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who then “unlawfully assaulted and battered” and “falsely imprisoned” the

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Barkers. (Id. at ¶ 4.07.) Plaintiffs fail to allege how their arrest was illegal, how

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law enforcement assaulted and battered them, or how any custody amounted to

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false imprisonment.2
The Court dismisses the Second Cause of Action without prejudice as to all

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remaining Defendants.

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H.

Third Cause of Action: Monell Claims

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This cause of action is styled as “Unlawful Custom, Practices & Policies;

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Monell allegations.” Municipalities and local government units can be sued under
42 U.S.C. § 1983 where “the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of
Soc. Servs. of the City of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed.
2d 611 (1978). To state a claim under Monell, Plaintiffs must allege that (1) they
possessed a constitutional right of which they were deprived; (2) a municipality or
local government unit had a policy; (3) this policy amounts to deliberate
indifference to Plaintiffs’ constitutional rights; and (4) the policy was the moving
force behind the constitutional violation. Miranda v. City of Cornelius, 429 F.3d
858, 868 (9th Cir. 2005).
Plaintiffs’ allegations fail to state a cause of action under Monell. Here,

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2

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To the extent that Plaintiffs seek to hold state actors liable under 42 U.S.C. § 1983, they “must allege the violation
of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L.
Ed. 2d 40 (1988). Plaintiffs have failed to allege facts satisfying these elements.

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only Defendant County and Defendant City of Chico are local government units or

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municipalities. Monell claims against the other thirteen Defendants fail as a

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matter of law because they are not local government units or municipalities.

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Plaintiffs allege in conclusory fashion that Defendants County and City of Chico

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have a policy of disregarding Plaintiffs’ constitutional rights. (Compl. ¶ 5.57.)

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Furthermore, Plaintiffs fail to allege facts connecting Defendant Martinez (a

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federal agent working for the IRS) and her allegedly false criminal complaint to

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any custom or policy of Defendant County and Defendant City of Chico. Lastly,

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in order for Plaintiffs to prevail on their Monell claim, Plaintiff Randy Barker’s

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conviction would need to be set aside first, and they have not alleged that it has

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been set aside. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L.

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Ed. 2d 383 (1994).

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Plaintiffs also allege in conclusory fashion that Defendant County,

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Defendant Trostle, and Defendant City of Chico have a policy of allowing

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“military attacks” carried out by Defendant IRS. (Compl. ¶¶ 5.52-5.56.) These

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conclusory allegations lack any factual specificity and fail to allege facts

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satisfying the elements of a Monell claim. Furthermore, as discussed above,

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Plaintiffs utterly fail to allege facts, other than conclusory assertions, regarding the

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“military attack” they believe occurred when law enforcement arrested the Barkers

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in 2012.

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Plaintiffs’ Third Cause of Action is dismissed without prejudice as to

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Defendants City of Chico and County of Butte. Plaintiffs’ Third Cause of Action

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is dismissed with prejudice as to the remaining Defendants.

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I.

Fourth Cause of Action: Violation of the Ralph Civil Rights Act

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This cause of action is styled as a cause of action for a violation of the
Ralph Civil Rights Act (the “Ralph Act”) under California Civil Code § 51.7. The
Ralph Act is a hate crime statute, which provides a private cause of action for
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violence or threats of violence committed on the basis of protected characteristics,

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including political opinion. CAL. CIV. CODE § 51.7. The elements of a Ralph Act

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cause of action are: (1) the defendant threatened or committed violent acts against

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the plaintiff; (2) a motivating reason for the defendant’s conduct was his

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perception of the plaintiff’s protected characteristic (e.g., political opinion); (3) the

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plaintiff was harmed; (4) the defendant’s conduct was a substantial factor in

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causing the plaintiff’s harm. Austin B. v. Escondido Union School Dist., 149 Cal.

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App. 4th 860, 880-81 (2007).

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Plaintiffs have failed to allege facts satisfying the elements of a Ralph Act

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claim. Plaintiffs only allege that Defendants incorrectly labeled the Barkers as

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“tax protestors” and that “taxation is the real implementation of slavery.” (Compl.

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¶¶ 5.76, 5.74.) Plaintiffs have failed to allege beyond conclusory statements that

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any Defendant committed violence or threatened violence because of a protected

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characteristic.

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The Court dismisses Plaintiffs’ Fourth Cause of Action without prejudice as
to all remaining Defendants.
J.

Fifth Cause of Action: Wrongful Death Due to Negligence

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This cause of action is styled as “Wrongful death (negligence).” (Compl. at
60.) Confusingly, Plaintiffs make reference to California Code of Civil Procedure
§ 377.10 (defining the term “beneficiary of decedent’s estate”) and murder statutes
under California Penal Code §§ 187-199. The Court interprets this cause of action
as a wrongful death cause of action based on negligence.
The elements of a wrongful death cause of action are (1) the defendant
committed a tort (negligence or other wrongful act); (2) the tort caused the
decedent’s death; and (3) pecuniary damages suffered by the heirs of the deceased.
CAL. CIV. PROC. §§ 377.60, 377.61; Quiroz, 140 Cal. App. 4th at 1263. The
elements of negligence are (1) the defendant has a legal duty to use due care; (2)
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the defendant breached the duty; (3) the breach was the proximate cause of the

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resulting injury. United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d

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586, 594 (1970)

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Plaintiffs allege here that law enforcement should not have arrested the

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Barkers and instead should have simply issued a summons. (See Compl. ¶ 5.85.)

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Plaintiffs have not alleged beyond conclusory assertions how any Defendants’

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decision to arrest the Barkers instead of issuing a summons was a breach of a duty

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any Defendant owed to the Barkers. Nor have Plaintiffs alleged beyond

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conclusory statements how any such alleged negligence caused Ms. Barker to

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commit suicide.
The Fifth Cause of Action is dismissed without prejudice as to all remaining
Defendants.
K.

Sixth Cause of Action: RICO Conspiracy

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This cause of action is styled as “R.I.C.O. Unlawful RICO Conspiracy.”
(Compl. at 64.) Confusingly, Plaintiffs make reference to California Penal Code §
182 (punishment for criminal conspiracy) and 28 U.S.C. § 1965 (which does not
exist). The Court interprets this cause of action as a civil RICO cause of action.
To state a claim under RICO, Plaintiffs must plead facts satisfying five
elements: (1) the existence of an enterprise affecting interstate commerce, (2) that
Defendants were associated with or employed by the enterprise, (3) that
Defendants participated in the conduct of the affairs of the enterprise, (4) that
Defendants participated in a pattern of racketeering which included at least two
predicate acts; and (5) that Plaintiffs incurred actual injury to business or property.
See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S. Ct. 3275, 87 L. Ed.
2d 346 (1985).
Plaintiffs have alleged that Defendant IRS is a racketeering enterprise that
unlawfully seeks to collect from taxpayers, such as the Barkers, who owe unpaid
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taxes. However, the Supreme Court has ruled that the RICO Act was not intended

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to expose government employees to RICO liability every time they seek to enforce

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the United States’ property claims. See Wilkie v. Robbins, 551 U.S. 537, 566, 127

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S. Ct. 2588, 168 L. Ed. 2d 389 (2007) (“[I]t is not reasonable to assume that . . .

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RICO . . . was intended to expose all federal employees . . . to extortion charges

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whenever they stretch in trying to enforce Government property claims.”) (citation

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omitted). Because Plaintiffs’ RICO theory is premised on their assertion that

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Defendant IRS is a racketeering organization, Plaintiffs’ RICO allegations fail as a

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matter of law.
The Court dismisses the Sixth Cause of Action with prejudice as to all

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Defendants.

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L.

Seventh Cause of Action: Treason

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This cause of action is styled as “Treason.” (Compl. at 73-74.) Plaintiffs

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rely on Art. III, § 3 of the U.S. Constitution (treason), as well as California Penal
Code §§ 37 and 38 (treason and misprision of treason). Confusingly, Plaintiffs
also make reference to the California Constitution of 1849, Art. 1, § 2 (“All
political power is inherent in the people.”); California Government Code § 1027.5
(findings regarding communism); 8 U.S.C. § 1481 (regarding loss of citizenship).
The Court interprets this cause of action as an allegation that Defendants
committed treason.
Treason under federal law consists of “levying War” against the United

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States, “adhering” to the United States’ enemies, or giving the United States’
enemies “Aid and Comfort.” U.S. Const. art. III, § 3. Treason under California
law consists of “levying war” against California, adhering to its enemies, or giving
them aid and comfort. CAL. PENAL CODE § 37. Misprision of treason is the
knowledge and concealment of treason against California. CAL. PENAL CODE §
38.
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The Seventh Cause of Action is dismissed with prejudice as to all
Defendants.
M.

Eighth and Ninth Causes of Action: Cruel and Inhumane
Punishment

Plaintiffs’ Eighth Cause of Action is styled as “Cruel and Inhumane
Punishment.” (Compl. at 78) Plaintiffs rely on the 8th Amendment to the U.S.
Constitution and California Penal Code § 147 (regarding oppressively treating
prisoners). (Id.) Confusingly, Plaintiffs also make reference to the 9th
Amendment to the U.S. Constitution (construction of enumerated rights); Art. 1, §
6 of the California Constitution (prohibiting slavery); Art. 1, § 12 of the California
Constitution (regarding bail); and California Penal Code § 417 (regarding
firearms). The Court interprets this cause of action as an allegation that
Defendants mistreated Plaintiffs in violation of the 8th Amendment to the U.S.
Constitution and/or California Penal Code § 147, which proscribes the oppressive
treatment of prisoners.
Plaintiffs’ Ninth Cause of Action is styled as “Cruel and Inhumane
Punishment Illegal Re-Establishment of Debtors Prisons; Kidnapping and
Slavery.” (Compl. at 85) Plaintiffs rely on the 8th Amendment to the U.S.
Constitution. (Id.) Confusingly, Plaintiffs also make reference to the 5th and 9th
Amendments to the U.S. Constitution (due process and construction of
enumerated rights); Art. 1, §§ 6 and 15 of the California Constitution (regarding
slavery and criminal due process); California Civil Code § 52.1 (the Bane Act, an
anti-hate statute); California Penal Code § 207 (kidnapping); California Revenue
& Taxation Code § 19547.5 (regarding slavery); and “Pub. Contr. C. §
6108(e)(2)(A)” (which could not be located). The Court interprets this cause of
action as an allegation that Defendants mistreated Plaintiffs in violation of the 8th
Amendment to the U.S. Constitution.

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Plaintiffs’ Eighth and Ninth Causes of Action fail to state a claim.

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“[P]retrial detainees are accorded no rights under the Eighth Amendment” because

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the Eighth Amendment’s prohibition of cruel and unusual punishments applies

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only after a defendant has been convicted and sentenced. Lee v. City of Los

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Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Here, Plaintiffs do not allege that

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Plaintiff Randy Barker was mistreated while in custody after his conviction

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(indeed, Plaintiff Randy Barker only started his sentence on October 31, 2013,

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which was after the instant suit was filed). Instead, the allegations focus on pre-

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conviction activities, such as the arrest of the Barkers. (See, e.g., Compl. ¶¶ 5.117,

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5.119.) Furthermore, there is no private right of action for California Penal Code

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§ 147, a criminal statute. See Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S.

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Ct. 1705, 60 L. Ed. 2d 208 (1979) (noting that a private right of action based on a

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criminal statute is appropriate only when “there was at least a statutory basis for

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inferring that a civil cause of action of some sort lay in favor of someone”).

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The Court dismisses the Eighth and Ninth Causes of Action with prejudice
as to all Defendants.
N.

Tenth Cause of Action: Trespass

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This cause of action is styled as “Trespass.” (Compl. at 80.) Confusingly,
Plaintiffs make reference to Art. 1, § 1 of the California Constitution; the 5th and
9th Amendments to the U.S. Constitution (due process and construction of
enumerated rights); California Civil Code § 1708 (injuring the property of
another); and California Penal Code § 417 (regarding firearms). The Court
interprets this cause of action as a trespass claim.
Trespass is an intentional unauthorized entry onto the land of another.
Miller v. Nat’l Broad. Co., 187 Cal. App. 3d 1463, 1480 (1986). The gist of
Plaintiffs’ allegations appears to be that the 2012 arrest of the Barkers at their
home constituted trespass. (See, e.g., Compl. at ¶¶ 5.141, 5.142.) Plaintiffs allege
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that law enforcement should not have arrested the Barkers and instead should have

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simply issued a summons. (See id. at ¶ 5.85.) Plaintiffs have not alleged beyond

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conclusory assertions how any Defendants’ decision to arrest the Barkers instead

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of issuing a summons was unlawful. Nor have Plaintiffs alleged (other than

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conclusory statements) that law enforcement did not have a valid warrant or other

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lawful justification for arresting the Barkers.

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The Court dismisses the Tenth Cause of Action without prejudice as to all
Defendants.
O.

Eleventh Cause of Action: Invalidity of Title 18

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This cause of action is styled as “Invalidity of Title 18 (i.e., P.L. 80-772).”
(Compl. at 94.) Title 18 contains all federal crime and criminal procedure statutes.
Plaintiffs assert that all federal criminal statutes are invalid. Plaintiffs fail to
allege any cognizable theory or facts showing that this is true.
The Court dismisses the Eleventh Cause of Action with prejudice as to all
Defendants.
IV. CONCLUSION
Several Defendants have not moved to dismiss Plaintiffs’ Complaint.
However, in the interest of judicial efficiency, the Court applies its rulings on the
instant Motions to the non-moving Defendants, as well.
The Court denies Plaintiff Randy Barker’s Motion for Remand.
Defendant IRS is dismissed from this case because the Defendant United
States has substituted for Defendant IRS.
The Court dismisses the Second, Fourth, Fifth, and Tenth Causes of Action
without prejudice as to all remaining Defendants.
Plaintiffs’ Third Cause of Action is dismissed without prejudice as to
Defendants City of Chico and County of Butte. Plaintiffs’ Third Cause of Action
is dismissed with prejudice as to all remaining Defendants.
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The Court dismisses the First, Sixth, Seventh, Eighth, Ninth, and Eleventh
Causes of Action with prejudice as to all Defendants.
Plaintiffs may file an amended complaint no later than February 27, 2014.
A failure to file an amended complaint will result in dismissal with prejudice.

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Additionally, Plaintiffs have failed to effect service on several Defendants

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during this case. Plaintiffs are reminded that they are required to properly serve

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any amended complaint according to the relevant rules of civil procedure.

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IT IS SO ORDERED.

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DATED: January 27, 2014

___________________________________
CONSUELO B. MARSHALL
UNITED STATES DISTRICT JUDGE

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