Lorretz v. USA Law Enforcement et al
Filing
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ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/29/2018 ORDERING that Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2 ) is GRANTED; and Plaintiff motion for recusal of the und ersigned (ECF No. 3 ) is DENIED; and RECOMMENDING that Plaintiff's motion for recusal of the assigned district judge (ECF No. 3 ) be DENIED; Plaintiff's complaint be dismissed without leave to amend; All pending motions be denied as moot; and the Clerk be directed to close the case. Referred to Judge Morrison C. England Jr; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DIANNA LEE WALLACH LORRETZ,
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Plaintiff,
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No. 2:18-cv-63-MCE-EFB PS
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
U.S.A. LAW ENFORCEMENT, et al.,
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Defendants.
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Plaintiff has filed a complaint, a motion to proceed in forma pauperis pursuant to 28
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U.S.C. 1915, and a motion for recusal.1 For the reasons explained below, plaintiff’s motion for
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recusal is denied, her application to proceed in forma pauperis is granted, and it is recommended
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that the complaint be dismissed without leave to amend.2
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I.
Motion for Recusal
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Plaintiff seeks recusal of the undersigned and the assigned district judge, Judge England.
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ECF No. 3. Plaintiff contends that the judges assigned to this case have a “history of conflict of
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interest” and have dismissed her prior actions without first providing her a hearing. Id.
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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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Subsequent to initiating this action, plaintiff filed several miscellaneous motions, some
of which are unintelligible and appear to have nothing to do with the substance of plaintiff’s case.
ECF Nos. 4-12. Because plaintiff’s complaint must be dismissed without leave to amend, it is
recommended that plaintiff’s motions be denied as moot.
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The applicable recusal statute, 28 U.S.C. § 455, provides that “[a]ny justice, judge, or
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magistrate judge of the United States shall disqualify himself in any proceeding in which his
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impartiality might reasonably be questioned.” 28 U.S.C § 455(a). He shall also disqualify
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himself when he has “a personal bias or prejudice concerning a party . . . .” Id. § 455(b)(1). The
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standard for determining whether impartiality might be reasonably questioned is “whether a
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reasonable person with knowledge of all the facts would conclude that the judge’s impartiality
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might be questioned.” United States v. Holland, 519 F.2d 909, 913 (9th Cir. 2008). “A judge’s
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previous adverse ruling alone is not sufficient bias.” Mayes v. Leipziger, 729 F.2d 605, 607 (9th
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Cir. 1984).
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Plaintiff’s disagreement with the dismissal of her prior actions without a hearing is not a
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sufficient basis for granting her request for recusal. Furthermore, her contention that there is an
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unspecified conflict of interest fails to call into question the undersigned and Judge England’s
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impartiality. Accordingly, the request for recusal of the undersigned is denied, and it is
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recommended that the request for recusal of Judge England be denied as well.
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II.
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Motion to Proceed In Forma Pauperis and Screening Requirement
Plaintiff’s application to proceed in forma pauperis makes the financial showing required
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by 28 U.S.C. § 1915(a)(1) and (2). ECF No. 2. Accordingly, the request to proceed in forma
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pauperis is granted. 28 U.S.C. § 1915(a).
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Determining that plaintiff may proceed in forma pauperis does not complete the required
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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the
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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on
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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed
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below, plaintiff’s complaint fails to state a claim and must be dismissed.
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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,
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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it
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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of
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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of
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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to
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relief above the speculative level on the assumption that all of the complaint’s allegations are
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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable
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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.
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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
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Under this standard, the court must accept as true the allegations of the complaint in
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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,
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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading
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requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a
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complaint to include “a short and plain statement of the claim showing that the pleader is entitled
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to relief, in order to give the defendant fair notice of what the claim is and the grounds upon
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which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).
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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only
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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,
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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,
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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction
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requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a
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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be
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authorized by a federal statute that both regulates a specific subject matter and confers federal
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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity
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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the
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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World
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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction
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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys
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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
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Review of the complaint reveals that it must be dismissed for failure to state a claim. ECF
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No. 1. The complaint, which purports to allege claims against the Federal Bureau of
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Investigation (“FBI”), Sacramento City Police Department, and the Sacramento County Sheriff’s
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Department, consists largely of disjointed and unintelligible allegations. See generally ECF No.
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1. Specifically, plaintiff alleges that she is a “housewife rancher,” and that defendants have
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prevented her from finding her husband, brother, parents, and grandparents. Id. She allegedly
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filed reports with the FBI and Sacramento City Police, but both cases are in limbo. Id. She also
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claims that defendants “are expert traffickers according to newspaper reports [from] 2017, even
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though plaintiff pressed [an] emergency button on [an] Amtrak train” in January 2011. Id. She
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also alleges that her registered nursing license is still in limbo, and that “WiFi refuses to allow
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[her] to do homework on a second degree . . . .” Id.
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The complaint does not, however, identify any specific causes of action. Nor does it
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contain coherent factual allegations that could plausibly support a cognizable claim for relief.
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Accordingly, plaintiff’s complaint must be dismissed. Moreover, it is clear that providing leave
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to amend to cure the deficiencies would be futile. Plaintiff has previously filed five other actions
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in this district, each asserting incoherent and implausible allegations similar to those pled in this
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action. See Lorretz v. Jewish Federation (All), No. 2:12-cv-1796 MCE CKD PS, ECF No. 3
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(finding that “plaintiff’s allegations are so bizarre and implausible that they are wholly
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insubstantial and cannot invoke this court’s subject matter jurisdiction.”); Lorretz v. USA
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Government, No. 2:12-cv-1801-KJM-EFB PS, ECF No. 10 (finding that plaintiff’s allegations
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were unintelligible, and that the complaint failed to “allege any facts that would support a
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cognizable legal claim or a basis for this court’s jurisdiction); Lorretz v. USA Government, No.
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2:13-cv-618 LKK AC PS, ECF No. 5 (“The court has reviewed the complaint and finds it to be
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nonsensical and frivolous.”); Lorretz v. USA, No. 2:16-cv-784-GEB-EFB PS, ECF No. 12
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(observing that plaintiff’s complaint was plagued with incoherent rambling); Lorretz v. Comey,
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No. 2:17-cv-90-TLN-EFB PS, ECF No. 30 (same). Accordingly, the complaint should be
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dismissed without leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)
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(While the court ordinarily would permit a pro se plaintiff to amend, leave to amend should not
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be granted where it appears amendment would be futile).
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III.
Conclusion
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Accordingly, it is hereby ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; and
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2. Plaintiff motion for recusal of the undersigned (ECF No. 3) is denied.
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Further, it is RECOMMENDED that:
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1. Plaintiff’s motion for recusal of the assigned district judge (ECF No. 3) be denied;
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2. Plaintiff’s complaint be dismissed without leave to amend;
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3. All pending motions be denied as moot; and
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4. The Clerk be directed to close the case.
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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)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: January 29, 2018.
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