Ko v. Davis

Filing 4

ORDER Requiring Amended Complaints. Signed by Judge Edward M. Chen on 12/7/2017. (Attachments: # 1 Certificate/Proof of Service)(emcsec, COURT STAFF) (Filed on 12/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Case No. 17-cv-04564-EMC
Case No. 17-cv-04883-EMC
Case No. 17-cv-04884-EMC
Case No. 17-cv-04885-EMC
Case No. 17-cv-04911-EMC
Case No. 17-cv-04912-EMC
Case No. 17-cv-04913-EMC
Case No. 17-cv-04914-EMC
Case No. 17-cv-04951-EMC
Case No. 17-cv-04954-EMC
Case No. 17-cv-05113-EMC
Case No. 17-cv-05280-EMC
Case No. 17-cv-05666-EMC

In Re
HUI LIAN KE, a/k/a LILY KO,

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Plaintiff.

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For the Northern District of California

United States District Court

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ORDER REQUIRING AMENDED
COMPLAINTS

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I.

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INTRODUCTION

Hui Lian Ke, also known as Lily Ko, filed these several pro se civil actions. At the time

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she filed the actions, she was an inmate at the Santa Clara County Jail and has since been

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transferred to Napa State Hospital. The complaints are now before the Court for review under 28

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U.S.C. §§ 1915(e) and 1915A.
II.

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BACKGROUND

In the past year, Plaintiff has filed more than thirty actions. This order addresses thirteen
of her newer civil actions.
From Plaintiff‟s various filings, it appears that: (1) her two children were removed from

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the home, perhaps by social services agents, in May 2014; (2) Plaintiff violated a temporary

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restraining order in September 2014 that has something to do with child custody issues; (3)

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Plaintiff was arrested in 2015 and 2017, and perhaps also in 2014; (4) when she filed these actions,

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Plaintiff was in Santa Clara County Jail as a pretrial detainee; (4) a judge declared a doubt about

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her competency to stand trial in 2017; and (5) Plaintiff has been sent to Napa State Hospital to

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attempt to restore her to competency to stand trial. Although those few facts can be gleaned from

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the various filings, none of the complaints presents an understandable statement of facts or an

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understandable statement of legal claim(s).

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Plaintiff has chosen to sue various alleged wrongdoers in separate actions, although all the

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actions seem to be connected to the child custody case and one or more criminal cases. In Case

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No. 17-cv-4564 EMC, Plaintiff sues Rebecca Fleming, a court clerk at the Santa Clara County

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Superior Court, on an incoherent trespass theory with incoherent facts. In Case No. 17-cv-4884

“I never signed or agreed to any contract --including your booking contract.” Docket No. 1 at 1 in

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For the Northern District of California

EMC, Plaintiff sues the “warden” of the jail, asserting that her incarceration was wrongful because

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United States District Court

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Case No. 17-cv-4884 EMC. In Case No. 17-cv-4884 EMC, Plaintiff sues Diane Dooley, the

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Secretary of California‟s Department of Health and Human Services. The complaint is largely

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incomprehensible, but appears to allege that some birth certificates are adhesion contracts to which

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Plaintiff did not agree and that she never consented to participate in trading those birth certificates

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on the stock market. In Case No. 17-cv-4885 EMC, Plaintiff again sues Rebecca Fleming, a court

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clerk at Santa Clara County Superior Court, on an incoherent theory with incoherent facts. In

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Case No. 17-cv-4911 EMC, Plaintiff sues Alejandro Padilla, the Secretary of State for California.

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The complaint is largely incomprehensible, but appears to allege that Plaintiff withdrew her

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consent to proceed in several Santa Clara County Superior Court cases and wants her children and

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freedom restored. In Case No. 17-cv-4912 EMC, Plaintiff sues two prosecutors and a third party;

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the complaint is quite unclear but appears to contend that her prosecution is improper in some

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unexplained way and demands her release from custody. In Case No. 17-cv-4913 EMC, Plaintiff

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appears to challenge the removal of her children from their home, but also includes two county

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counsel officers as defendants for no apparent reason; she also demands that the charges against

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her be expunged. In Case No. 17-cv-4914 EMC, Plaintiff sues the district attorney and offers

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incoherent legal theories about consent and her children being sureties for deeds. In Case No. 17-

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cv-4951 EMC, Plaintiff sues the Director of the Santa Clara County Probation Department, and
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offers an incoherent theory that she withdraws “from all contract(s) entered with the Superior

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Court of Santa Clara County . . . due to forced and coerced participation,” which render the

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contracts null and void. Docket No. 1 at 1 in Case No. 17-cv-4951 EMC. In Case No. 17-cv-4954

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EMC, Plaintiff sues Santa Clara County Sheriff Laurie Smith, alleging that Plaintiff “never

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consented to arrest, booking, imprisonment, solicitation(s), presentment(s)” and wants her

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children, property and freedom restored. Docket No. 1 at 1 in Case No. 17-cv-4954 EMC. In

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Case No. 17-cv-5113 EMC, Plaintiff sues Santa Clara County for “trespass by tort for injunctive

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and declaratory relief concerning the matters for [two] inferior court cases” regarding the removal

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of her children and their placement in foster care. Docket No. 1 at 1. In Case No. 17-cv-5280

prohibition to remove venue from proceedings” in two cases in the Santa Clara County Superior

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For the Northern District of California

EMC, Plaintiff sues court clerk Rebecca Fleming for the third time and “requests a writ of

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United States District Court

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Court. The complaint mentions several events about her criminal prosecution and the removal of

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her children, but the allegations overall fail to present a coherent statement of facts or claims,

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especially since it does not appear that the one named defendant has any responsibility for many of

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the alleged events. In Case No. 17-cv-5666, Plaintiff claims that Suzanne Romero committed a

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“robbery” of Plaintiff on May 6, 2014, when she took Plaintiff‟s children.
III.

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DISCUSSION

A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See 28

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U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any

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claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or

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seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

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For cases in which a plaintiff proceeding in forma pauperis has sued private parties, the court may

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review and dismiss the action if it is frivolous, malicious, fails to state a claim, or seeks monetary

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relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). Pro se

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pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1990).

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A.

A Basis For Federal Court Jurisdiction Must Be Alleged In Each Action

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As relevant here, the Court only has jurisdiction to entertain an action if the parties have

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diverse citizenship, see 28 U.S.C. § 1332, or if it raises a federal question, such as a civil rights

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claim asserted under 42 U.S.C. § 1983. (There are other federal statutes that grant other bases of

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federal court jurisdiction, but none are applicable to these actions.) In simple terms, each of

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Plaintiff‟s actions can go forward in federal court only if there is diversity jurisdiction, or if a

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claim is stated under § 1983.

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Diversity jurisdiction requires an amount in controversy greater than $75,000 and, more

U.S.C. § 1332(a)(1). Plaintiff and the defendants appear to be citizens of California. There does

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not appear to be diversity jurisdiction in any of the actions. If she has facts showing otherwise,

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For the Northern District of California

importantly for present purposes, that the action is between “citizens of different States.” See 28

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United States District Court

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Plaintiff may attempt to allege facts suggesting the existence of diversity jurisdiction in any action

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in which she wishes to proceed based on diversity jurisdiction.

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Federal question jurisdiction also is not sufficiently alleged. A civil rights action under 42

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U.S.C. § 1983 would give the Court federal question jurisdiction over an action. To state a claim

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under 42 U.S.C. § 1983, a plaintiff must allege (1) that a right secured by the Constitution or laws

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of the United States was violated and (2) that the violation was committed by a person acting

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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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It appears that many of Plaintiff‟s cases might involve the right to familial association that

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is protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

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“„Officials may remove a child from the custody of its parent without prior judicial authorization

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only if the information they possess at the time of the seizure is such as provides reasonable cause

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to believe that the child is in imminent danger of serious bodily injury and that the scope of the

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intrusion is reasonably necessary to avert that specific injury.‟” Sjurset v. Button, 810 F.3d 609,

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617 (9th Cir. 20150) (quoting Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000)). A claim

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for a due process violation based on the removal of Plaintiff‟s children could be asserted under §

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1983, and would give this Court federal question jurisdiction over the case(s) in which such a

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claim is asserted.
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B.

An Amended Complaint In Each Action Is Needed To Cure The Pleading Problems
Each complaint is a rambling jumble of ideas that is largely incomprehensible. Plaintiff

mentions numerous legal concepts, but fails to allege an understandable set of facts to go with any

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of those legal concepts. See, e.g., Docket No. 1 at 1 in Case No. 17-cv-4564 (alleging there has

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been a “trespass from the theft of my property (Estates) - with Authentication from the United

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States Secretary of State for Full Faith & Credit.”); Docket No. 1 at 1 in Case No. 17-cv-4914

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EMC (alleging that she has “dissolved the joinder from said deeds & reclaimed my Frank‟s Jaya‟s

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bodies,” and “rebut[s] any & all presumptions that my Frank‟s Jaya‟s body(s) is the surety(s) for

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said deed(s).”). Each complaint is dismissed for failure to state a claim upon which relief may be

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granted. Leave to amend is granted so that Plaintiff may file an amended complaint in each action

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that cures the several deficiencies addressed in this order.

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For the Northern District of California

United States District Court

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First, she has to allege a claim showing that the Court has jurisdiction, e.g., diversity
jurisdiction or a claim under 42 U.S.C. § 1983, as discussed in the preceding section.
Second, each complaint fails to allege “a short and plain statement of the claim showing

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that the pleader is entitled to relief,” as required by Federal Rule of Civil Procedure 8(a)(2). The

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conclusory allegations in each complaint fail to satisfy some of the basic purposes of a complaint:

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framing the dispute and giving the defendants and court notice of the claims upon which relief is

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sought. Although a complaint “does not need detailed factual allegations, . . . a plaintiff's

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obligation to provide the „grounds‟ of [her] „entitle[ment] to relief‟ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level.” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

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proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; see also

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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“statement need only . . . give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests”). It is more important that a

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pro se litigant describe the facts of her problem than that she name the legal theories under which

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she wishes to proceed -- if the Court understands the facts, the Court usually can figure out the

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legal theory, but the opposite is not true. In each amended complaint, Plaintiff must allege a short
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and plain statement of each claim for relief she wishes to assert.
Third, the amended complaint in each action must list every defendant for that action and

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the adequately link each defendant to the claim(s). Plaintiff should not refer to them as a group

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(e.g., “the defendants”); rather, she should identify each involved defendant by name and link each

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of them to her claim by explaining what each involved defendant did or failed to do that caused a

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violation of her rights, and stating when the violation occurred. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988). Plaintiff is cautioned that there is no respondeat superior liability under

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Section 1983, i.e. no liability under the theory that one is responsible for the actions or omissions

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of an employee. Liability under Section 1983 arises only upon a showing of personal participation

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by the defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Fourth, Plaintiff has mentioned fraud in some of her complaints, but fails to describe the

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For the Northern District of California

United States District Court

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fraud in any detail. “[A] party must state with particularity the circumstances constituting fraud.”

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Fed. R. Civ. P. 9(b). “By requiring the plaintiff to allege the who, what, where, and when of the

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alleged fraud, the rule requires the plaintiff to conduct a precomplaint investigation in sufficient

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depth to assure that the charge of fraud is responsible and supported, rather than defamatory and

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extortionate.” Ackerman v. Northwestern Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999).

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Fifth, it might be useful for Plaintiff to pursue all her claims about the child custody issues

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in a single action, rather than filing a different action for every defendant. It is permissible to file

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an action against different defendants about a single occurrence or a set of related occurrences.

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Here, she might be able to adequately articulate the facts and claims better if she grouped all of her

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claims about the child custody issues in one action, all her claims about her pending criminal case

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in another action, and any claims about the conditions of confinement in yet another action.

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Claims Regarding Criminal Proceedings Against Plaintiff
A plaintiff cannot bring a civil rights action for damages for a wrongful conviction or

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imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction

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or sentence invalid, unless that conviction or sentence already has been determined to be wrongful.

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Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). A conviction or sentence may be determined to

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be wrongful by, for example, being reversed on appeal or being set aside when a state or federal
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court issues a writ of habeas corpus. See id. The Heck rule also prevents a person from bringing

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an action that -- even if it does not directly challenge the conviction or other decision -- would

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imply that the conviction or other decision was invalid. The practical importance of this rule is

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that a plaintiff cannot attack her conviction in a civil rights action for damages or declaratory

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relief; the decision must have been successfully challenged by way of, e.g., a habeas corpus

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petition before the civil rights action for damages is filed. The Heck rule requires dismissal of a

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case where the conviction has occurred. When the action is brought by a pretrial detainee and the

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criminal proceedings are still pending, the action will be stayed rather than dismissed if it would,

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if successful, “impugn an anticipated future conviction.” Wallace v. Kato, 549 U.S. 384, 393-94

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(2007).
Plaintiff‟s filings show that she is in custody as a pretrial detainee on criminal charges, and

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For the Northern District of California

United States District Court

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that she is currently housed at Napa State Hospital to restore her to competency to stand trial on

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those charges. Many of her claims appear to be about the pending criminal case against her. She

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should bear in mind that, if she presents a claim in an amended complaint that attacks the validity

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of those charges or the criminal proceedings against her, the case will be stayed due to the rules

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form Heck and Wallace, discussed in the preceding paragraph.
Finally, if Plaintiff wants to challenge the lawfulness of her current custody, the exclusive

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method by which she may do so in federal court is by filing a petition for writ of habeas corpus.

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See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The Court will not construe any of the

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present actions as a petition for writ of habeas corpus because Plaintiff already has several

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petitions for writ of habeas corpus pending. See Ke v. Davis, 17-cv-4826 VC; Ko v. Fleming, 17-

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cv-5178 VC; Ko v. Fleming, 17-cv-5179 VC.

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IV.

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CONCLUSION

Each of the complaints in the referenced actions fails to state a claim upon which relief

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may be granted. Plaintiff is given leave to file an amended complaint in each action so that she

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may allege one or more claims against each of the listed defendants. Each amended complaint

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must be filed no later than January 5, 2018, and must include the caption and civil case number

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for that particular action and the words AMENDED COMPLAINT on the first page. If Plaintiff

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fails to file an amended complaint by the deadline for an action, that action will be dismissed.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: December 7, 2017
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EDWARD M. CHEN
United States District Judge

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