Bravo v. County of San Diego et al

Filing 32

ORDER REGARDING MOTION TO DISMISS AND ORDER TO SHOW CAUSE. Show Cause Response due by 3/3/2014.. Signed by Judge JEFFREY S. WHITE on 2/10/14. (jjoS, COURT STAFF) (Filed on 2/10/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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VICTOR J. BRAVO,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 12-06460 JSW

v.
COUNTY OF SAN DIEGO, et al.,

ORDER REGARDING MOTION
TO DISMISS AND TO SHOW
CAUSE

Defendant.
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Now before the Court is the motion to dismiss filed by the County of San Diego (the

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“County”). The County moves to dismiss the first amended complaint (“FAC”) for lack of

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personal service based on the failure of plaintiff Victor J. Bravo (“Bravo”) to properly serve the

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County. The County also urges the Court to dismiss the complaint sua sponte as frivolous.

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BACKGROUND
As recently stated by another case in this district, Bravo “is a frequent filer in the federal

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and state court systems. The California courts have deemed him to be a vexatious litigant. See

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Bravo v. Ismaj, 99 Cal. App. 4th 211 (2002). Further, Plaintiff has been subjected to a prefiling

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order in the Ninth Circuit Court of Appeals since early 2009. See In re Bravo, No. 08-80086,

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Dkt. No. 16. Finally, the United States Supreme Court has noted that Plaintiff has “repeatedly

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abused this Court’s process” and, as a result, Plaintiff is barred from filing any future petitions

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with that Court unless he pays the docketing fee and submits a petition which complies with

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Rule 33.1. In re Bravo, 130 S.Ct. 293 (2009).” Bravo v. CDCR Director, et al., N.D. Civ. Case

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No. 12-6459 (Docket No. 62).

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In this instant action, Bravo filed his forty-nine page FAC against many defendants. It is

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difficult to determine the precise facts and legal theories of Bravo’s complaint. From what the

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Court can decipher, the essence of his FAC appears to be his allegation that the defendants

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conspired to violate his civil rights and falsely imprisoned him.

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ANALYSIS
Federal courts cannot exercise personal jurisdiction over a defendant without proper

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service of process pursuant to Federal Rule of Civil Procedure 4. Omni Capital Int’l, Ltd. V.

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Wolff & Co., 484 U.S. 97, 104 (1987); see also Hickory Travel Service, Inc. v. TUI AG, 213

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F.R.D. 547, 551 (N.D. Cal. 2003). The plaintiff has the burden of establishing validity of
service of process if service is contested. Grand Entm’t Group Ltd. v. Star Media Sales, Inc.,

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For the Northern District of California

United States District Court

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988 F.2d 476, 488 (3d Cir. 1993).

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Thus, the Court must determine whether Bravo has demonstrated that he properly served

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the County. Bravo does not contend that he properly served the County. Instead, he requests an

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extension of time to effectuate service.

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When service of process is insufficient, the district court has the discretion to dismiss

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the action or to quash the service and require plaintiff to re-serve defendant. S.J. v. Issaquah

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School Dist. No. 411, 470 F.3d 1288, 1294 (9th Cir. 2006); see also Montalbano v. Easco Hand

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Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985). Service will ordinarily be quashed and the action

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preserved where “there is a reasonable prospect that plaintiff ultimately will be able to serve

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defendant properly . . . .” 5 C. Wright & Miller, Federal Practice and Procedure § 1354, at 585

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(1969); see also Hickory Travel Service, 213 F.R.D. at 555.

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However, in this action, if the Court quashed service without granting an extension for

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time to serve, it would effectively dismiss the action. Federal Rule of Civil Procedure 4

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provides that service must be effected within 120 days. More that one year has elapsed since

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the complaint in this action was filed. However, “Rule 4(m) explicitly permits a district court to

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grant an extension of time to serve the complaint after that 120-day period.” Mann v. Am.

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Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (emphasis in original). A district court has full

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discretion to extend the time for service of process upon a showing of good cause. Fed. R. Civ.
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P. 4(m); In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). “At minimum, ‘good cause’ means

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excusable neglect. A plaintiff may also be required to show the following: (a) the party to be

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served personally received actual notice of the lawsuit; (b) the defendant would suffer no

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prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.”

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Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991).

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Although the Court finds that Bravo has not demonstrated good cause, because Bravo is

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pro se, the Court will grant him an extension of time. However, before the Court provides

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Bravo additional time to serve the County, he must demonstrate that this action should not be

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dismissed.
The County urges the Court to dismiss this action sua sponte on the grounds that the

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For the Northern District of California

United States District Court

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FAC is frivolous. A court may sua sponte dismiss an action for failure to state a claim, but only

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after providing the plaintiff with an opportunity to submit a written memorandum in opposition.

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See Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981). Upon reviewing the FAC, the Court is

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inclined to dismiss the complaint on the following grounds.

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Plaintiffs’ complaint fails to comply with Federal Rule of Civil Procedure 8 (“Rule 8”),

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which requires plaintiffs to “plead a short and plain statement of the elements of his or her

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claim.” Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000). Rule 8 requires

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each allegation to be “simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). Where the

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allegations in a complaint are “argumentative, prolix, replete with redundancy and largely

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irrelevant,” the complaint is properly dismissed for failure to comply with Rule 8(a). McHenry

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v. Renne, 84 F.3d 1172, 1177, 1178-79 (9th Cir. 1996); see also Nevijel v. North Coast Life Ins.

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Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming dismissal of complaint that was “

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‘verbose, confusing and almost entirely conclusory’”). “Something labeled a complaint but . . .

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prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs

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are suing for what wrongs, fails to perform the essential functions of a complaint,” and

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“impose[s] unfair burdens on litigants and judges.” McHenry, 84 F.3d at 1179-80.

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A complaint that fails to comply with Rule 8 may be dismissed pursuant to Federal Rule
of Civil Procedure 41(b). “The propriety of dismissal for failure to comply with Rule 8 does
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not depend on whether the complaint is wholly without merit.” McHenry 84 F.3d at 1179.

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Even if the factual elements of the cause of action are present, but are scattered throughout the

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complaint and are not organized into a “short and plain statement of the claim,” dismissal for

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failure to satisfy Rule 8 is proper. Id. at 1178.

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Despite the length of Bravo’s FAC, he fails to provide a simple, short statement of the

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facts he alleges occurred. Instead, he continually makes broad conclusions that are not

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supported by factual allegations. Moreover, he often groups all of the defendants together and

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fails to allege which defendants engaged in what activity and when. Thus, Bravo fails to

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provide the defendants fair notice of the claims against them. See In re Sagent Tech., Inc., 278
F. Supp. 2d 1079, 1094 (N.D. Cal. 2003) (“[T]he complaint fails to state a claim because

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For the Northern District of California

United States District Court

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plaintiffs do not indicate which individual defendant or defendants were responsible for which

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alleged wrongful act.”); see also Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal.

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1988) (lumping together multiple defendants in one broad allegation fails to satisfy notice

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requirement of Rule 8(a)); Corazon v. Aurora Loan Services, LLC, 2011 WL 1740099, *4 (N.D.

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Cal. May 5, 2011) ( “Undifferentiated pleading against multiple defendants is improper.”)

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(quotation marks and citation omitted).

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Moreover, to the extent Bravo is seeking to bring a conspiracy claim under 42 U.S.C. §

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1983, he must, but fails to, set forth non-conclusory facts establishing the existence of a

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conspiracy to deprive him of a right guaranteed in the Constitution or under the laws of the

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United States. Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989); see

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also Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977) (“Conclusionary allegations,

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unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights

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Act” ....).

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Finally, the Court notes that to the extent Bravo names judges as defendants, his claims

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against them appear to be barred by the doctrine of judicial immunity. “[J]udicial immunity is

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an immunity from suit, not just from ultimate assessment of damages.” Mireless v. Waco, 502

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U.S. 9, 11 (1991); see also Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). “Judicial

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immunity applies ‘however erroneous the act may have been, and however injurious in its
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consequences it may have proved to the plaintiff.’” Ashelman v. Pope, 793 F.2d 1072, 1075

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(9th Cir. 1986) (quoting Cleavinger v. Saxner, 474 U.S. 193 (1985)). A judge lacks immunity

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only when he or she acts “in the clear absence of all jurisdiction ... or performs an act that is not

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‘judicial’ in nature.” Id. (internal citation omitted). Thus, “absolute judicial immunity does not

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apply to non-judicial acts, i.e. the administrative, legislative, and executive functions that judges

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may on occasion be assigned to perform.” Forrester v. White, 484 U.S. 219, 227 (1988).

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An act is considered “judicial” when it is a function normally performed by a judge and

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the parties dealt with the judge in his judicial capacity. See Stump, 435 U.S. at 362. To

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determine if an individual acted in an official judicial capacity, a court must analyze whether:
“(1) the precise act is a normal judicial function; (2) the events occurred in the judge’s

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For the Northern District of California

United States District Court

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chambers; (3) the controversy centered around a case then pending before the judge; and (4) the

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events at issue arose directly and immediately out of a confrontation with the judge in his or her

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official capacity.” Id. (citation omitted); see also Duvall v. County of Kitsap, 260 F.3d 1124,

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1133 (9th Cir. 2001). Here, to the extent the Court can decipher Bravo’s FAC, his allegations

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appear to concern actions taken in connection with judicial proceedings. Accordingly, it

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appears as though the actions taken were judicial in nature.

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The Court HEREBY ORDERS Bravo to Show Cause (“OSC”) in writing why this case

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should not be dismissed for the reasons discussed above. Bravo shall respond to this OSC by

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no later than March 3, 2014.

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IT IS SO ORDERED.

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Dated: February 10, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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VICTOR J BRAVO,

Case Number: CV12-06460 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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COUNTY OF SAN DIEGO et al,
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Defendant.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on February 10, 2014, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
14 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
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17 Victor J. Bravo
P.O. Box 12617
18 San Francisco, CA 94112
19 Dated: February 10, 2014
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk