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