Mousa v. Harris et al

Filing 96

ORDER GRANTING MOTIONS TO DISMISS WITH PREJUDICE by Judge Jon S. Tigar granting 79 Motion to Dismiss for Lack of Jurisdiction; granting 82 Motion to Dismiss; granting 85 Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 6/12/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

SADAT FAWZI MOUSA,

Case No. 13-cv-00140-JST

Plaintiff,
8
v.

ORDER GRANTING MOTIONS TO
DISMISS WITH PREJUDICE

9
10

KAMALA D. HARRIS, et al.,

Re: ECF No. 79, 82, 85

Defendants.

United States District Court
Northern District of California

11
In this action for claims arising out of Plaintiff Mousa’s trial and conviction for certain

12
13

crimes in state court, Defendants the City and County of San Francisco, the State of California,

14

Kamala Harris, and Murray Zisholz move to dismiss Mousa’s amended complaint on the grounds

15

that it fails to contain a short and plain statement of his claims, as required by Federal Rule of

16

Civil Procedure 8(a)(2) and this court’s November 26, 2013 order, ECF No. 72, and that it fails to

17

state a claim under Rule 12(b)(6). Mousa, who represents himself, opposes the motions. For the

18

reasons set forth below, the motions are GRANTED.

19

I.

BACKGROUND

20

A.

The Parties and Claims

21

Plaintiff Sadat Mousa brings this action against Murray Zisholz, the City and County of

22

San Francisco, the State of California, and Kamala Harris for claims arising out of his conviction

23

and subsequent incarceration in connection with two criminal charges. The first charge, a felony,

24

was based on a death threat he made to his brother. The second charge, a misdemeanor, arose out

25

of harassing telephone calls that Mousa allegedly made in 2009. A detailed factual and procedural

26

background of this action can be found in this court’s order of November 26, 2013. ECF No. 72.

27

The court previously granted a round of motions to dismiss. Id. The court dismissed the

28

following claims with prejudice: (1) all claims asserted under § 1983 against the State of

1

California and Kamala Harris; (2) all claims asserted under § 1983 for an unconstitutional

2

conviction; (3) all claims asserted under § 1983 based on allegations that the judgments made

3

during Mousa’s state court trial were erroneous; and (4) all § 1983 claims asserted against Zisholz.

4
5
6

The court also dismissed all claims asserted against the City and County of San Francisco
under Rule 12(b)(5) for insufficient service of process.
Additionally, the court dismissed the remainder of the claims without prejudice for failure

7

to state a claim under Rule 12(b)(6) on the ground that Mousa failed to specify which of his

8

allegations pertain to each cause of action and to each defendant. ECF No. 72 at 4.

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

Finally, the court refused to exercise supplemental jurisdiction over the remaining state law
claims and dismissed them without prejudice.
The court permitted Mousa to file an amended complaint that:
[C]ures the deficiencies identified in this order with respect to his
claims for constitutional violations under 42 U.S.C. § 1983.
Specifically, Mousa must attribute specific allegations to each
Defendant, must specify the claims that are asserted against each
Defendant, and must plead each claim with sufficient specificity to
give notice to each Defendant of the nature of the claims. Mousa
may not re-assert any of the federal claims that have been dismissed
with prejudice, but he may re-assert the state-law claims pleaded in
the original complaint provided that he identifies the Defendant
against whom each claim is asserted and pleads sufficient facts to
give notice to each Defendant of the nature of the claims asserted
against him. Any amended complaint must be served on each
Defendant in accordance with Federal Rule of Civil Procedure 4. If
Mousa does not file an amended complaint within 30 days, the
action will be dismissed with prejudice.
ECF No. 72 at 8.
Mousa filed an amended complaint on February 24, 2014, in which he asserts the

22

following sixteen claims: (1) a claim for violations of his Sixth and Fourteenth Amendment rights

23

based on the trial court’s removal of Mousa from the court room during his trial; (2) a claim for

24

violations of his First Amendment rights based on the trial court’s prosecution of Mousa based on

25

Mousa’s attempt to “redress grievances in court” and “exercising his right to challenge a TRO”;

26

(3) a claim for violations of his Fifth Amendment rights based on the criminal charges that were

27

brought against him in state court and his subsequent convictions; (4) a claim for violation of his

28

Fourteenth Amendment rights based on “defendants’ wrongful and conspiratorial acts”; (5) a
2

claim for violations of his Eighth Amendment rights based on his false imprisonment and the cruel

2

and unusual punishment he suffered; (6) a claim for violations of his Fourteenth Amendment

3

rights based on “Defendants’ wrongful and conspiratorial acts”; (7) a claim based on “Defendants’

4

wrongful and judicial conspiratorial acts” related to “illegal, unsigned, altered transcripts” that

5

were “used to convict” Mousa; (8) a claim based on the trial court’s alteration of the “jury’s

6

question to secure conviction”; (9) a claim under 42 U.S.C. § 1983 and § 1985 based on

7

Defendants’ “multiple corrupt acts and conspiracies . . for self gains or unjust rewards”; (10) a

8

claim under 18 U.S.C. §§ 1961 and 1962 based on Defendants’ “multiple corrupt conspiracies and

9

acts”; (11) a claim alleging that “Defendants’ wrongful and conspiratorial acts violated Bivens

10

claims”; (12) a claim under the Federal Tort Claims Act based on Defendants’ “knowledge and

11
United States District Court
Northern District of California

1

approval of the judges that presided in Plaintiffs case”; (13) a claim for violations of his Fifth and

12

Fourteenth Amendment rights based on “Defendants’ wrongful and conspiratorial acts”; (14) a

13

claim for violations of his “state and federal rights” based on Defendants’ wrongful and

14

conspiratorial acts”; (15) a claim under 28 U.S.C. § 1343 based on Defendants’ failure to “report

15

to the proper authorities” the violations of Mousa’s civil and constitutional rights; and (16) and a

16

claim based on Defendants’ attempts to “assassinate plaintiff while in custody through poisoning

17

his food with cyanide or rat poisoning.” ECF No. 78 at 14-20.
Mousa seeks, among other things, compensatory and punitive damages, as well as the

18
19

reversal of his conviction.

20

B.

21

The Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1367.

22

II.

Jurisdiction

LEGAL STANDARDS

23

A.

Rule 41(b)

24

“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action

25

for failure to comply with any order of the court.” Eldridge v. Block, 832 F.2d 1132, 1136 (9th

26

Cir. 1987).

27

//

28

//
3

1

B.

Rule 12(b)(6)

2

A pleading must contain a “short and plain statement of the claim showing that the pleader

3

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Federal Rule of Civil

4

Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. “To survive a motion

5

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to

6

relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual

7

content that allows the court to draw the reasonable inference that the defendant is liable for the

8

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation

9

marks omitted). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. When dismissing a complaint, the court must grant

11
United States District Court
Northern District of California

10

leave to amend unless it is clear that the complaint’s deficiencies cannot be cured by amendment.

12

Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). The district court, however, has

13

“broad” discretion to deny leave to amend “where plaintiff has previously amended the

14

complaint.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

15

III.

16

DISCUSSION
Defendants Zisholz, the State of California, Kamala Harris, and the City and County of

17

San Francisco move to dismiss Mousa’s amended complaint on the grounds that it fails to comply

18

with this court’s order, which permitted the filing of an amended complaint only if it (1) did not

19

reassert any claims that the court dismissed with prejudice; and (2) provided sufficient notice to

20

Defendants by stating with specificity which allegations pertain to each cause of action and to

21

each Defendant. See ECF No. 72. Defendants also move to dismiss the complaint with prejudice

22

under Rule 12(b)(6) on the ground that the amended complaint continues to be legally insufficient

23

and that the complaint’s deficiencies cannot be cured by amendment.

24
25
26

The opposition that Mousa filed largely is incomprehensible and does not appear to
address any of the arguments made in the motions to dismiss. See ECF No. 87.
The motions to dismiss are well-taken. The claims in Mousa’s amended complaint are

27

based on the same theories and allegations that the court previously determined fail as a matter of

28

law. He reasserts claims that were dismissed with prejudice. And, to the extent that the amended
4

1

complaint asserts claims that were not previously dismissed with prejudice, those claims are not

2

pleaded with sufficient specificity so as to give adequate notice to Defendants. Moussa’s claims

3

fail to meet even the minimal standards of Rule 8, which require only “a short and plain statement

4

of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2). “[A] basic

5

objective of [Rule 8] is . . . to require that the pleading discharge the function of giving the

6

opposing party fair notice of the nature and basis or grounds of the pleader's claim and a general

7

indication of the type of litigation that is involved; indeed, as the Supreme Court and every court

8

of appeals have clearly stated, it is this notice function that represents the core of the pleading

9

process under the federal rules.” 5 Fed. Prac. & Proc. Civ. § 1215 (3d ed.) (citing Erickson v.
Pardus, 551 U.S. 89, 93 (2007)). Indeed, the allegations in Mousa’s amended complaint are even

11
United States District Court
Northern District of California

10

more nebulous than the ones in the original complaint; it is impossible to determine from the face

12

of the amended complaint which allegations pertain to each claim and to each Defendant. The

13

amended complaint’s iteration of claims that have been dismissed with prejudice and its utter lack

14

of specificity clearly violate this court’s prior order.
Given that the court has already explained to Mousa in detail the nature of his claims’

15
16

deficiencies, provided him with an opportunity to cure these deficiencies, and advised him at least

17

twice to seek the assistance of the Legal Help Center in prosecuting his claims, the court can only

18

conclude that further leave to amend would be futile. See Ascon Properties, Inc. v. Mobil Oil Co.,

19

866 F.2d 1149, 1160 (9th Cir. 1989) (holding that the district court has “broad” discretion to deny

20

leave to amend “where plaintiff has previously amended the complaint”); see also Nevijel v. N.

21

Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981) (“Though there are a wide variety of

22

sanctions short of dismissal available, the district court need not exhaust them all before finally

23

dismissing a case.”). The court will dismiss Mousa’s claims with prejudice.

24

///

25

///

26

///

27

///

28

///
5

1
2

IV.

CONCLUSION
Defendants’ motions to dismiss Mousa’s amended complaint with prejudice for failure to

3

comply with a court order and for failure to state a claim are GRANTED. The claims in the

4

amended complaint are DISMISSED WITH PREJUDICE. The Clerk shall terminate this action.

5
6
7
8

IT IS SO ORDERED.
Dated: June 12, 2014
______________________________________
JON S. TIGAR
United States District Judge

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6