Mazzaferro v. Parisi et al

Filing 80

ORDER GRANTING ONE DEFENDANT'S MOTION TO DISMISS AND TWO DEFENDANTS' MOTION FOR A MORE DEFINITE STATEMENT by Judge William Alsup [granting 67 Motion for More Definite Statement; granting 68 Motion to Dismiss]. Amended Pleadings due by NOON on 5/25/2017. (whasec, COURT STAFF) (Filed on 5/11/2017)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 RONALD MAZZAFERRO, 11 For the Northern District of California United States District Court 10 12 13 14 15 Plaintiff, No. C 16-05641 WHA v. ORDER GRANTING ONE DEFENDANT’S MOTION TO DISMISS AND TWO DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT WILLIAM PARISI, KEN JOHNSON, SPENCER CRUM, BRUCE GOLDSTEIN, JOSHUA MYERS, and LYNN SEARLE, Defendants. / 16 17 18 19 20 INTRODUCTION In this Section 1983 action, one defendant moves to dismiss and two defendants move for a more definite statement. For the reasons below, both motions are GRANTED. STATEMENT 21 Pro se plaintiff Ronald Mazzaferro alleges that defendant Lynn Searle, a private attorney 22 who represented defendant William Parisi in a state court action, cultivated a criminal enterprise 23 with several others, all defendants herein to help Parisi embezzle millions of dollars from a trust 24 allegedly established for Mazzaferro (Second Amd. Compl. ¶¶ 6, 25). 25 Specifically, Mazzaferro alleges that in February 2013 Parisi and Attorney Searle 26 deliberately supplied fraudulent information about Mazzaferro to defendant Ken Johnson, a 27 deputy sheriff of the Sonoma County Police Department, in order to “leverage their position 28 against Mazzaferro” in another action in state court. Mazzaferro then served Deputy Sheriff 1 Johnson with a “Criminal Cross Complaint” that alleged Deputy Sheriff Johnson arrested him 2 based on false information provided by Attorney Searle (id. ¶¶ 13–14). 3 In May 2013, Deputy Sheriff Johnson arrested Mazzaferro — allegedly in reliance on 4 the false information provided by Attorney Searle and Parisi, which Deputy Sheriff Johnson 5 allegedly knew to be false — for filing forged documents and committing perjury, elder abuse, 6 and burglary. Five months later, the Sonoma County District Attorney dismissed all charges 7 against Mazzaferro (id. ¶¶ 15–18). 8 9 Mazzaferro then sent a document titled, “Private Party Directive to Arrest Corrupt Attorney Lynn Searle and Her Elder Abuser Client William Parisi,” which detailed his alleged false arrest and imprisonment, to defendant Spencer Crum, a sergeant of the Sonoma County 11 For the Northern District of California United States District Court 10 Police Department. Upon receiving the documents, Sergeant Crum invited Mazzaferro to meet 12 with him to discuss the documents Mazzaferro sent. At the meeting, Sergeant Crum allegedly 13 told another officer “not to report any information from Mazzaferro” and then ordered 14 Mazzaferro to leave the police department “under threat of arrest.” Shortly after, Mazzaferro 15 delivered “a document” to the City Council of Sonoma regarding his false arrest and Sergeant 16 Crum’s unwillingness to report information given to him by Mazzaferro (id. ¶¶ 19–22). 17 In January 2015, Deputy Sheriff Johnson arrested Mazzaferro again based on additional 18 allegedly false information provided by Attorney Searle. Mazzaferro also alleges that while 19 being transported to jail, Deputy Sheriff Johnson “made it clear” to him that Deputy Sheriff 20 Johnson arrested him because he submitted complaints to the city council about Deputy Sheriff 21 Johnson and Sergeant Crum (id. ¶¶ 23, 30). 22 In October 2016, Mazzaferro filed this action under Section 1983 for the violation of his 23 Fourth Amendment rights against Attorney Searle, Deputy Sheriff Johnson, and Sergeant Crum, 24 among others. Mazzaferro’s initial complaint alleged that all of the defendants violated his 25 Fourth Amendment rights under Section 1983 by causing his false arrest and imprisonment in 26 (1) May 2013 and (2) January 2015 (Compl. ¶¶ 24, 26). 27 In January 2017, Mazzaferro moved for entry of default against Sergeant Crum for not 28 timely responding to his complaint, which the clerk then entered (Dkt. Nos. 23, 26). An order 2 1 in March 2017 set aside this entry of default because the affidavit of service filed by Mazzaferro 2 was false and Sergeant Crum was never properly served (Dkt. No. 58 at 2–4). The same order 3 also dismissed Mazzaferro’s first claim of his original complaint as time-barred (id. at 4). 4 In February 2017, Mazzaferro filed an amended complaint to bring claims against 5 the county counsels representing Deputy Sheriff Johnson and Sergeant Crum for abuse of 6 court process, which was stricken for being untimely (First Amd. Compl. ¶ 33; Dkt. No. 47). 7 An order later determined that the amended complaint had in fact been timely and thus gave 8 Mazzaferro leave to amend his complaint to add allegations not already dismissed (Dkt. No. 58 9 at 5). In March 2017, Mazzaferro filed a second amended complaint against Attorney Searle, 11 For the Northern District of California United States District Court 10 Sergeant Crum, and Deputy Sheriff Johnson, among others, alleging they all violated his Fourth 12 Amendment rights under Section 1983 for causing his arrest in January 2015 (Second Amd. 13 Compl. ¶¶ 14–16). Attorney Searle now moves to dismiss all claims against her. Sergeant 14 Crum and Spencer now move for a more definite statement. This order follows full briefing 15 and oral argument on both motions. 16 ANALYSIS 17 1. 18 Mazzaferro claims Attorney Searle is liable under Section 1983 for conspiracy to violate ATTORNEY SEARLE’S MOTION TO DISMISS. 19 his Fourth Amendment rights. This conspiracy charge is based on the allegation that Attorney 20 Searle knowingly provided false information to Sergeant Crum and Deputy Sheriff Johnson, 21 which lead to Mazzaferro’s false arrest in January 2015. 22 To state a claim under Section 1983, a plaintiff must allege that: (1) a right secured by 23 the constitution of the United States was violated, and (2) the deprivation was committed by 24 a person acting under color of state law. Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015) 25 (citing West v. Atkins, 487 U.S. 42, 48 (1988)). “[A] lawyer representing a client is not, by 26 virtue of being an officer of the court, a state actor” under color of state law within the meaning 27 of Section 1983. Georgia v. McCollum, 505 U.S. 42, 64 (1991) (citing Polk Cty. v. Dodson, 28 454 U.S. 312, 318 (1981)). A lawyer does not act on behalf of the state or in concert with it, but 3 1 rather advances “the undivided interest of his client,” which is essentially a private function. 2 Polk Cty., 454 U.S. at 318–19. 3 A private individual, however, may be liable under Section 1983 if she conspired or 4 entered joint action with state actors such as Sergeant Crum and Deputy Sheriff Johnson. 5 See Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). Such a conspiracy requires the 6 existence of an agreement or a meeting of minds among the private individual and state agents 7 to violate the plaintiff’s constitutional rights. Ibid. Conclusory allegations of conspiracy 8 between a private attorney and a state officer are insufficient. Simmons v. Sacramento Cnty. 9 Superior Ct., 318 F.3d 1156, 1161 (9th Cir. 2003). The mere allegation that a private individual provided information to a state actor is 11 For the Northern District of California United States District Court 10 not enough to create a plausible inference that a private individual and state actor conspired 12 with one another. See Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1087 (C.D. Cal. 2009) 13 (Judge James Selna). Lauter held that the plaintiff’s allegation that the defendant had filed a 14 false police report, which subsequently lead to criminal charges being filed against him, were 15 insufficient to create the plausible inference that the police officers conspired with the 16 defendant. Ibid. So too here. 17 Mazzaferro alleges that Attorney Searle acted under color of law by “provid[ing] false 18 information influencing [Deputy Sheriff Johnson] to . . . falsely arrest Mazzaferro,” which 19 Deputy Sheriff Johnson knew was false (Second Amd. Compl. ¶¶ 23, 30). These allegations 20 do not create a plausible inference that Searle had an “agreement or meeting of the minds” with 21 Deputy Sheriff Johnson to arrest Mazzaferro. Accordingly, Mazzaferro has not sufficiently 22 alleged facts to plausibly infer that Attorney Searle acted under color of law by conspiring with 23 a state actor to falsely arrest Mazzaferro. 24 Mazzaferro also contends that the mere fact that the criminal charges brought against 25 him in state court were dropped indicates that Attorney Searle acted under color of law. 26 In support of this argument, Mazzaferro cites Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 27 1984). In Bottone, the plaintiff claimed two private attorneys and a judge conspired to deprive 28 the plaintiff of property through state court proceedings without due process. Id. at 106. 4 1 Bottone assumed solely for the sake of argument that the plaintiff’s allegation that the judge and 2 attorneys had acted under color of law was true, but determined that the plaintiff did not have 3 a claim for a civil rights violation against the defendants. Ibid. The decision held that the 4 plaintiff’s ability to try his action in state court and appeal the decision of the state court to 5 the Supreme Court of Colorado illustrated that the defendants did not deprive him of his due 6 process rights. Ibid. 7 To the extent that Bottone, a decision from another circuit, applies, it does not support 8 Mazzaferro’s argument — Bottone did not hold that the defendants would have been found to 9 have acted under color of law had the plaintiff’s civil rights been violated. It merely assumed that premise for the sake of argument. Mazzaferro has therefore not plausibly alleged that 11 For the Northern District of California United States District Court 10 Searle somehow acted under color of law and could now be liable to Mazzaferro under 12 Section 1983. 13 Mazzaferro also argues that under the doctrine of respondeat superior, Attorney Searle 14 is vicariously liable for the actions committed by Parisi, who allegedly violated Mazzaferro’s 15 Fourth Amendment rights under Section 1983. The decisions cited, however, merely lay out the 16 elements of a respondeat superior relationship (Dkt. No. 77 at 3–4 (citing Mary M. v. City of 17 L.A., 54 Cal. 3d 202, 208–10 (1991); Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th 18 291, 296–97 (1995); Perez v. Van Groningen & Sons, 41 Cal. 3d 962, 967 (1986); Farmers Ins. 19 Grp. v. Cty. of Santa Clara, 11 Cal. 4th 992, 1004 (1995); John R. v. Oakland Unified Sch. 20 Dist., 48 Cal. 3d 438, 447 (1989)). The decisions do not support how the respondeat superior 21 doctrine would make Attorney Searle vicariously liable under Section 1983 because of Parisi’s 22 actions, given that there can be no respondeat superior liability under Section 1983. See Jones 23 v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)(citing Taylor v. List, 880 F.2d 1040, 1045 24 (9th Cir. 1989) (under no circumstances is there respondeat superior liability under 25 Section 1983)). Liability under Section 1983 arises only upon a showing of personal 26 participation of a defendant. Ibid. Consequently, Mazzaferro has not plausibly alleged 27 that Searle is liable to Mazzaferro under Section 1983. The motion to dismiss this claim is 28 GRANTED. 5 Sergeant Crum and Deputy Sheriff Johnson move for a more definite statement 3 pursuant to FRCP 12(e) on the grounds that Mazzaferro’s complaint is so ambiguous that they 4 cannot ascertain the nature of the claims being asserted against them. Under FRCP 12(e), “a 5 party may move for a more definite statement of a pleading to which a responsive pleading is 6 allowed but which is so vague and ambiguous that the party cannot reasonably prepare a 7 response.” This rule must be read in light of FRCP 8(a)(2) which requires that a complaint 8 contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 9 Simply put, “[a]ll that is required [by FRCP 8(a)] is that the complaint gives the defendant fair 10 notice of what the plaintiff’s claim is and the ground upon which it rests.” Kimes v. Stone, 84 11 For the Northern District of California 2. 2 United States District Court 1 MORE DEFINITE STATEMENT. F.3d 1121, 1129 (9th Cir. 1996). Under FRCP 10(b) a plaintiff must also state claims in 12 “numbered paragraphs, each limited as far as practicable to a single set of circumstances.” 13 Mazzaferro’s second amended complaint does not conform to FRCP 10(b) — 14 Mazzaferro has failed to plead each claim separately. Instead, Mazzaferro has clumped all of 15 his allegations, comprised of numbered page-long paragraphs, into one claim for a violation of 16 his Fourth Amendment rights under Section 1983. 17 Throughout the complaint, however, Mazzaferro also alleges that Sergeant Crum, 18 Deputy Sheriff Johnson, and other defendants conspired with one another to commit First 19 Amendment violations against him. In one instance, Mazzaferro alleges that Sergeant Crum 20 and Deputy Sheriff Johnson “maliciously, overtly, [and,] deliberately intended to strike fear into 21 [Mazzaferro] thereby chilling [his] United States Constitution First Amendment [r]ight to 22 petition government agencies for redress of grievances” (Second Amd. Compl. ¶ 5). 23 Mazzaferro fails to indicate if this allegation is part of his Section 1983 claim for the violation 24 of his Fourth Amendment rights or if not, what statute he seeks to bring this First Amendment 25 violation claim under. It is therefore unclear what claims Mazzaferro intends to bring against 26 Deputy Sheriff Johnson and Sergeant Crum. As such, the amended complaint is so vague and 27 ambiguous that Sergeant Crum and Deputy Sheriff Johnson cannot reasonably prepare a 28 response. 6 1 Mazzaferro contends that the instant motion is “premature” because Sergeant Crum and 2 Deputy Sheriff Johnson could obtain additional details about the claim being asserted through 3 discovery (Dkt. No. 69 at 3). Not so. The complaint is so unintelligible that our defendants 4 cannot understand what claims are being brought against them, not that the complaint lacks 5 detail. Before discovery commences, Mazzaferro must clearly indicate what claims are being 6 brought against Sergeant Crum and Deputy Sheriff Johnson — only then could Sergeant Crum 7 and Deputy Sheriff Johnson conduct meaningful discovery. Accordingly, the motion for a more 8 definite statement is GRANTED. 9 Both the motion to dismiss and the motion for a more definite statement are GRANTED. 11 For the Northern District of California United States District Court 10 CONCLUSION Leave to amend may not be sought with respect to claims against Searle because further 12 amendment would be futile. 13 Mazzaferro may have until THURSDAY, MAY 25 AT NOON to provide a more definite 14 statement with respect to the claims against Deputy Sheriff Johnson and Sergeant Crum. 15 More specifically, Mazzaferro shall present each claim separately and in a manner clear enough 16 that Sergeant Crum and Deputy Sheriff Johnson can understand exactly what claims are being 17 brought against them. To make a clear record, Mazzaferro shall provide the more definite 18 statement in the form of an amended complaint. The sole purpose of the amended complaint, 19 however, is to provide a more definite statement on the claims against Deputy Sheriff Johnson 20 and Sergeant Crum, not to include new factual allegations nor new causes of action. 21 The proposed amended complaint must be appended to a separate redlined copy 22 identifying all changes. Mazzaferro shall also remove all allegations not pertaining to the 23 surviving claims. 24 IT IS SO ORDERED. 25 26 Dated: May 11, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 27 28 7

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