Rossmann v. Harvey

Filing 6

ORDER REASSIGNING CASE; REPORT AND RECOMMENDATIONS; ORDER Granting 3 MOTION for Leave to Proceed in forma pauperis. Objections due by 10/30/2017. Signed by Judge Maria-Elena James on 10/16/2017. (mejlc2S, COURT STAFF) (Filed on 10/16/2017) (Additional attachment(s) added on 10/16/2017: # 1 Certificate/Proof of Service) (rmm2S, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRUD ROSSMANN,

Case No. 17-cv-05633-MEJ

Plaintiff,
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v.
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G. MICHAEL HARVEY,
Defendant.

ORDER GRANTING PLAINTIFF’S
APPLICATION TO PROCEED IN
FORMA PAUPERIS
REPORT & RECOMMENDATION

United States District Court
Northern District of California

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INTRODUCTION

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On September 28, 2017, Plaintiff Brud Rossmann filed a Complaint and an Application to

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Proceed In Forma Pauperis. Compl., Dkt. No. 1; Appl., Dkt. No. 3. A district court may authorize

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the start of a civil action in forma pauperis if the court is satisfied that the would-be plaintiff

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cannot pay the filling fees required to pursue the lawsuit. See 28 U.S.C. § 1915(a)(1). Plaintiff

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submitted the required documentation demonstrating he is unable to pay the costs of this action,

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and it is evident from the Application that his assets and income are insufficient to enable him to

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pay the fees. See Appl. Accordingly, the Court GRANTS Plaintiff‟s Application to Proceed In

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Forma Pauperis. As Plaintiff did not yet consent to the jurisdiction of a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(c), the Clerk of Court shall REASSIGN this case to a District

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Judge, with the recommendation that the Complaint be DISMISSED WITHOUT LEAVE TO

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AMEND.
SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2)

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A.

Legal Standard

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The Court also must review Plaintiff‟s Complaint to determine whether the action may be

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allowed to proceed. The Court must dismiss the Complaint if it is frivolous, fails to state a claim

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upon which relief can be granted, or seeks monetary relief against a defendant who is immune

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from such relief. 28 U.S.C. § 1915(e)(2)(B). To make this determination, courts assess whether

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there is a factual and legal basis for the asserted wrong, “however inartfully pleaded.” Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984) (quotation omitted). Pro se pleadings are

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liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Moreover, the

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Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no

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request to amend the pleading was made, unless it determines that the pleading could not possibly

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be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff
proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal.

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United States District Court
Northern District of California

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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B.

Allegations in the Complaint

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Plaintiff names as defendant G. Michael Harvey, U.S. Magistrate Judge for the District of

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Columbia. Compl. at 1, 21-22. He also sues “the „Jews‟ more generally.” 1 See id. at 1. Plaintiff

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asserts two claims. His first claim for “Criminal Battery or Battery with Intent or Attempted

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Murder” is based on his contention that “[t]he Jews (among others) have repeatedly admitted to

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their targeting [and] destruction of Brud Rossman” and “have advertised their hatred of Brud

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Rossman across the Internet in many forms, across many public record systems, and otherwise.”

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Id. at 27-28. Plaintiff further alleges “[t]he Courts . . . have not intervened, only served to

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perpetuate the targeting, destruction, [and] indexing.” Id. at 29. As an example, Plaintiff cites

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“the Jew G Michael Harvey‟s handling of the 15-cr-0040 proceeding.” Id. It is unclear what

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gives rise to Plaintiff‟s second claim for “„Theft‟/Robbery.” Plaintiff does not identify what was

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allegedly stolen; however, he alleges “acoustic attacks”, “infrasonic weaponry”, and “wireless

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c4ISR platform abuse” were involved in an unspecified manner. See id. at 30-33. Plaintiff seeks

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$10 million in damages, as well as injunctive and declaratory relief. Id. at 9, 33.

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On September 26, 2017, Plaintiff filed a similar lawsuit against “the „Jews‟ more generally” in
the Southern District of Mississippi, which was based on many of the same allegations he includes
in this action. See Rossman v. Ivanov, Case No. 17-cv-785-CWR (S.D. Miss.). That case was
dismissed without prejudice on September 27, 2017. Id., Dkt. No. 4 (Final Judgment).
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C.

Analysis and Screening
The undersigned recommends dismissing the action without leave to amend because the

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Complaint fails to state a claim upon which relief can be granted and because amendment cannot

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cure the Complaint‟s defects.

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Plaintiff cannot state a claim against Judge Harvey. “Judges are among those officials who
„have long enjoyed a comparatively sweeping form of immunity,‟ which has been justified on the

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theory that it helps „protect[ ] judicial independence by insulating judges from vexatious actions

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prosecuted by disgruntled litigants.‟” Brooks v. Clark Cty., 828 F.3d 910, 916 (9th Cir. 2016)

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(quoting Forrester v. White, 484 U.S. 219, 225 (1988)) (edits in Brooks); see Mireles v. Waco, 502

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U.S. 9, 9 (1991) (per curiam) (“[G]enerally, a judge is immune from a suit for money damages.”).

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United States District Court
Northern District of California

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A judge is not entitled to immunity in two instances: “a judge does not receive absolute immunity

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for „nonjudicial actions, i.e., actions not taken in the judge‟s judicial capacity,‟ and a judge does

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not receive absolute immunity „for actions, though judicial in nature, taken in the complete

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absence of all jurisdiction.‟” Brooks, 828 F.3d at 916 n.3 (quoting Mireles, 502 U.S. at 11-12).

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Nothing in the Complaint suggests Plaintiff‟s allegations concerning Judge Harvey fall under

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either of these categories. At best, it seems Plaintiff‟s claims arise from a prior criminal

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proceeding in which Judge Harvey was involved. See Compl. at 22 (alleging Judge Harvey

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“confessed to many violations of law in his handling of 15 cr 0040”); id. at 29 (referring to “the

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Jew G Michael Harvey‟s handling of the 15-cr-0040 proceeding”); see also United States v.

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Rossman, Case No. 15-cr-40-CKK-GMH-1 (D.D.C.). Plaintiff does not allege Judge Harvey

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engaged in nonjudicial actions or lacked jurisdiction over Plaintiff in the criminal proceeding.

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Judicial immunity therefore bars Plaintiff from suing Judge Harvey.

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Plaintiff also cannot assert claims against “the Jews.” In so doing, Plaintiff fails to

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attribute any specific conduct to any individual. See, e.g., Guerra v. Adams, 2011 WL 13193259,

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at *2 (E.D. Cal. Apr. 1, 2011), aff’d, 472 F. App‟x 812 (9th Cir. 2012) (dismissing claims against

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“medical staff generally” where plaintiff failed to identify specific defendants). Plaintiff cannot

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seek liability against an entire population of persons. Moreover, as explained below, even if

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Plaintiff could amend to name a specific individual, amendment would be futile in light of the
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claims he seeks to assert.
Plaintiff appears to allege “Defendants” engaged in criminal conduct. See, e.g., Compl. at

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proper mechanism to press criminal charges. See Ou-Young v. Roberts, 2013 WL 6732118, at *6

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(N.D. Cal. Dec. 20, 2013) (federal criminal statutes do not provide private right of action) (citing

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cases); Kumar v. Naiman, 2016 WL 397596, at *2 (E.D. Cal. Feb. 2, 2016) (“[P]laintiffs, as

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private citizens, have no standing to prosecute criminal claims.”) To the extent Plaintiff seeks to

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pursue criminal charges, amendment of these claims would be futile.
CONCLUSION

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Based on the analysis above, the undersigned GRANTS the Application to Proceed In

United States District Court
Northern District of California

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Forma Pauperis. As Plaintiff did not yet consent to the jurisdiction of a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(c), the Clerk of Court shall REASSIGN this case to a District

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Judge, with the recommendation that the Complaint be DISMISSED WITHOUT LEAVE TO

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AMEND.

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Pursuant to Federal Rule of Civil Procedure 72, any party may serve and file objections to
this Report and Recommendation within 14 days after being served.
IT IS SO ORDERED AND RECOMMENDED.

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Dated: October 16, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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