Brodzki v. Wahenda

Filing 11

ORDER DISMISSING AMENDED COMPLAINT. Signed by Magistrate Judge Jacqueline Scott Corley on 5/17/2012. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 5/17/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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ANTHONY BRODZKI,
Plaintiff,

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Case No.: 12-cv-1620 JSC
ORDER DISMISSING AMENDED
COMPLAINT

v.

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RICH WAHENDA,
Defendant.

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Plaintiff Anthony Brodzki, proceeding pro se, filed this civil action against Defendant

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Rich Wahenda. On April 16, 2012, the Court granted Plaintiff’s Application to Proceed in

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Forma Pauperis, but dismissed his complaint under 28 U.S.C. § 1915(e)(2).1 The Court

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granted Plaintiff leave to amend his complaint and advised Plaintiff that his amended

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complaint must: 1) clearly and legibly state the specific facts supporting each claim and

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demonstrating that the claims are timely; 2) state a claim upon which relief could be granted;

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and 3) identify the bases for venue in this jurisdiction and personal jurisdiction of the

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Defendant. (Dkt. No. 6).

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On April 9, 2012, Plaintiff consented to the jurisdiction of a United States magistrate judge
pursuant to 28 U.S.C. § 636(c).

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On May 11, 2012, Plaintiff filed an Amended Complaint accompanied by a request

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for a temporary restraining order. (Dkt. No. 10). For the reasons set forth below, the Court

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finds that Plaintiff’s Amended Complaint suffers from the same defects as the prior

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complaint and DISMISSES the Amended Complaint without leave to amend.

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Pursuant to 28 U.S.C. § 1915(e)(2), a federal court must dismiss a case in which in
frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2). For purposes of 28 U.S.C. § 1915, a frivolous claim is one that lacks an arguable

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basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Allegations of a

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Northern District of California

forma pauperis status is granted, “if the allegation of poverty is untrue,” or the action “is

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United States District Court

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pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972)( per curiam). However, if it appears to a

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certainty that a plaintiff will not be entitled to relief under any set of facts that could be

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proven under the allegations of the complaint, the court may sua sponte dismiss the complaint

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or portions of it. Halet v. Wand Investment Co., 672 F.2d 1305, 1309 (9th Cir. 1982). A

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court may dismiss an in forma pauperis complaint sua sponte under 28 U.S.C. § 1915 when

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the claims lacks any basis in law or fact. Neitze, 490 U.S. at 328-330.

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Here, the Amended Complaint alleges that Plaintiff went to see Marshall Wahenda on

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May 11 and 12, 2010 to discuss allegations that Plaintiff was raped thirty-four years ago in

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Chicago. Plaintiff alleges that during the course of this meeting, which also took place in

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Chicago, Marshall Wahenda told him that he would take Brodzki to talk with a psychologist

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for free. Instead, Defendant took Plaintiff to a hospital and “blocks my exit and forces me to

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stay in the emergency room.” (Dkt. No. 10). Plaintiff was given a blood test by the

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emergency room nurse and then Defendant left Plaintiff at the hospital.

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subsequently transported in an ambulance to “Madden.” Plaintiff was voluntarily admitted

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Plaintiff was

to Madden (which the Court presumes is a mental health facility), although Plaintiff states
that he signed in voluntarily under duress. Based on these allegations, Plaintiff seeks $20
million in damages for violation of his First, Fourth and Fifth Amendment rights. Plaintiff
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seeks venue in the Northern District of California because he had been trying to move to

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California at the time these events occurred and discovered at this same time that one of the

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men he alleges raped him in Chicago in 1968 (who is not named as a defendant) now lives in

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California.
Plaintiff’s Amended Complaint suffers from the same defects as his original

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as his allegations of false imprisonment arose after Defendant left him, and further, Plaintiff

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inconsistently alleges that he was voluntarily admitted for treatment. In addition, Plaintiff

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has not established any basis for the Court to assert personal jurisdiction over Defendant

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Wahenda as Defendant neither resides in California nor is he alleged to have any contacts

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Northern District of California

Complaint. Plaintiff cannot state a claim on which relief could be granted against Defendant

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United States District Court

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with California. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir.

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2004) (“For a court to exercise personal jurisdiction over a nonresident defendant, that

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defendant must have at least minimum contacts with the relevant forum such that the exercise

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of jurisdiction does not offend traditional notions of fair play and substantial justice”).

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Similarly, the fact that a non-party allegedly lives in this District does not establish that venue

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is proper in this district instead of in the District Court for the Northern District of Illinois

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where the parties reside and the allegations took place.2 See 28 U.S.C. § 1391(b).

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Accordingly, under Neitze there is no arguable basis in law for the Complaint and the Court

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dismisses the Complaint under 28 U.S.C. § 1915(e)(2)(B).
Generally, “[d]ismissal without leave to amend is improper unless it is clear ... that the

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complaint could not be saved by an amendment,” Moss v. U.S. Secret Serv., 572 F.3d 962,

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972 (9th Cir. 2009), and “a pro se litigant is entitled to notice of the complaint’s deficiencies

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and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66

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F.3d 245, 248 (9th Cir. 1995). However, “[t]he district court’s discretion to deny leave to

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amend is particularly broad where plaintiff has previously amended the complaint.” Cafasso,

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Plaintiff presumably filed the action here because he is barred from filing any further
actions in the Northern District of Illinois by a pre-filing review order. See In Re: Anthony J.
Brodzki, No. 10-4591, Dkt. No. 1 (N.D. Ill. July 23, 2010).
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U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011)(internal

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quotations and citations omitted).

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Here, the Court previously granted Plaintiff leave to amend and instructed Plaintiff

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regarding the deficiencies in his complaint which he would need to cure on amendment.

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Plaintiff’s Amended Complaint fails to articulate any cognizable legal claims against the

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Defendant and fails to establish personal jurisdiction over the Defendant or venue in this

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district. The Court therefore finds that the deficiencies in the Amended Complaint could not

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be cured by further amendment. The Amended Complaint is DISMISSED with prejudice.

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Plaintiff’s “Motion for Disclosure” (Dkt. No. 8), “Motion for Judge’s Action” (Dkt.

Northern District of California

No. 9), and Motion for a Temporary Restraining Order (contained in the Amended

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United States District Court

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Complaint) are DENIED as moot.

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The Clerk shall close this file.

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IT IS SO ORDERED.

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Dated: May 17, 2012
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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