Conway v. Geithner et al

Filing 15

ORDER GRANTING DEFENDANTS' 6 MOTION TO DISMISS. Signed by Judge Claudia Wilken on 5/10/2010. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 5/10/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 ANDREW CONWAY, 6 Plaintiff, 7 8 9 United States District Court For the Northern District of California ORDER GRANTING DEFENDANTS' MOTION TO DISMISS v. TIMOTHY GEITHNER and JAMES R. BROWNING, Defendants. 10 11 No. C 12-0264 CW ________________________________/ 12 Defendants Timothy Geithner, United States Secretary of the 13 Treasury, and James R. Browning,1 a judge on the United States 14 Court of Appeals for the Ninth Circuit, move, under Federal Rules 15 of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss pro se 16 Plaintiff Andrew Conway's complaint, for lack of jurisdiction and 17 for failure to state a claim upon which relief may be granted. 18 Plaintiff has filed an opposition.2 The matter was taken under 19 submission and decided on the papers. Having considered all the 20 papers filed by the parties, the Court grants Defendants' motion 21 to dismiss. 22 23 24 25 26 27 28 1 Regrettably, Chief Judge Emeritus Browning recently passed away. 2 Plaintiff did not file his opposition with the Court, but sent it to opposing counsel who filed it as Exhibit A to his declaration. Docket No. 7-1. The Court considers Exhibit A to be Plaintiff's opposition. BACKGROUND 1 2 The gravamen of Plaintiff's complaint is that the Treasury 3 Department is improperly deducting $167.10 from his monthly social 4 security payment of $1,114.00. 5 of the Palo Alto Veteran Affairs (VA) Medical Center. 6 The $167.10 is deducted on behalf Plaintiff alleges that his rights "under the Bill of Rights and the United 7 States Constitution" were denied "by the outlandish practice of 8 9 selective justice." He also alleges that "all Americans in their United States District Court For the Northern District of California 10 70's and 80's have the right to bring action in their local 11 judicial district." 12 the San Mateo County small claims court and it was removed by 13 Defendants. 14 small claims court against other federal officials alleging the Plaintiff originally filed this complaint in Previously, Plaintiff filed three other cases in 15 same claim and each case was removed to federal court. Plaintiff 16 voluntarily dismissed his first two cases without prejudice and he 17 18 voluntarily dismissed his third case, Conway v. Bressler and 19 Devine, C 11-2144 EDL, with prejudice. LEGAL STANDARD 20 21 22 23 A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Civ. P. 8(a). Fed. R. When considering a motion to dismiss under Rule 24 12(b)(6) for failure to state a claim, dismissal is appropriate 25 26 only when the complaint does not give the defendant fair notice of 27 a legally cognizable claim and the grounds on which it rests. 28 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 2 In 1 considering whether the complaint is sufficient to state a claim, 2 the court will take all material allegations as true and construe 3 them in the light most favorable to the plaintiff. NL Indus., 4 Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, this 5 principle is inapplicable to legal conclusions; "threadbare 6 recitals of the elements of a cause of action, supported by mere 7 conclusory statements," are not taken as true. Ashcroft v. Iqbal, 8 9 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). United States District Court For the Northern District of California 10 When granting a motion to dismiss, the court is generally 11 required to grant the plaintiff leave to amend, even if no request 12 to amend the pleading was made, unless amendment would be futile. 13 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 14 F.2d 242, 246-47 (9th Cir. 1990). In determining whether 15 amendment would be futile, the court examines whether the 16 complaint could be amended to cure the defect requiring dismissal 17 18 "without contradicting any of the allegations of [the] original 19 complaint." 20 Cir. 1990). 21 22 23 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th DISCUSSION I. Absolute Judicial Immunity The only allegations in Plaintiff's complaint concerning 24 Judge Browning are as follows: 25 26 27 28 My records were sent to the Ninth Circuit Court of Appeals. I received a 'certificate of service,' which I filled out and returned it to James R. Browning on Sept. 21/11. When I did not hear from him, I sent a letter to Brad Vandley two weeks later and asked, 'why I did not hear from James R. Browning.' 3 1 2 3 4 5 6 I never heard from Brad Vandley. I got so frustrated, I went up to the Court House, 95 Seventh St. SF. The Clerk looked at my records and made a phone call. She hung up and told me 'your case is too frivolous to be heard.' After 3 years of being in the sup. court of Ca. and the Fed. Ct. of N. Ca. 8 times, a stack of records a foot high, my cases were too frivolous! Comp., page 10. Judges and those performing judge-like functions are 7 absolutely free from liability for damages for acts performed in 8 their official capacities. Ashelman v. Pope, 793 F.2d 1072, 1075 10 (9th Cir. 1986) (en banc). Judicial immunity from claims for 11 damages generally can be overcome only in two sets of 12 circumstances. 13 non-judicial actions, i.e., actions not taken in the judge's 14 judicial capacity. United States District Court For the Northern District of California 9 First, a judge is not immune from liability for Hyland v. Wonder, 117 F.3d 405, 413 n.1 (9th 15 Cir. 1997) (holding that judge may lose protection of judicial 16 immunity when performing administrative act). Second, a judge is 17 18 not immune for actions, though judicial in nature, taken in the 19 complete absence of all jurisdiction. 20 9, 11 (1991). 21 the "general act" in question, he or she is immune, however 22 erroneous the act may have been, however injurious the 23 Mireles v. Waco, 502 U.S. As long as the judge has jurisdiction to perform consequences of the act may have been, and irrespective of the 24 judge's claimed motivation. Harvey v. Waldron, 210 F.3d 1008, 25 26 27 1012 (9th Cir. 2000) (citing Cleavinger v. Saxner, 474 U.S. 193, 199-200 (2009)). 28 4 1 From Plaintiff's complaint, it is clear that he is suing 2 Judge Browning for an act that he allegedly took in his judicial 3 capacity and that Judge Browning had jurisdiction to perform the 4 act in question. 5 dismissed. 6 Therefore, the claims against Judge Browning are Dismissal is without leave to amend because amendment would be futile. 7 II. Res Judicata 8 9 United States District Court For the Northern District of California 10 11 Defendants argue that the complaint should be dismissed under the doctrine of res judicata. Rule 8(c) of the Federal Rules of Civil Procedure denotes res 12 judicata as an affirmative defense. 13 affirmative defenses may not be raised in a motion to dismiss, res 14 judicata may be asserted in a motion to dismiss when doing so does Although ordinarily 15 not raise any disputed issues of fact. Scott v. Kuhlmann, 746 16 F.2d 1377, 1378 (9th Cir. 1984); Day v. Moscow, 955 F.2d 807, 811 17 18 (2d Cir. 1992). 19 Plaintiff’s complaint in the present case, the complaint in case 20 number C 11-2144 EDL, and the Court’s Order of Dismissal with 21 Prejudice in that case. 22 does not raise any disputed issues of fact, and consideration of 23 Defendants base their res judicata argument on Thus, Defendants' res judicata argument it on a motion to dismiss is appropriate. 24 The doctrine of res judicata, or claim preclusion, provides 25 26 that a final judgment on the merits bars further claims by the 27 parties or their privies based on the same cause of action. 28 Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 322 5 1 F.3d 1064, 1077 (9th Cir. 2003). 2 of any claims that were raised or could have been raised in a 3 prior action. 4 F.3d 1189, 1192 (9th Cir. 1997). 5 claims asserted subsequent to the judgment were actually pursued 6 It prohibits the re-litigation Western Radio Servs. Co., Inc. v. Glickman, 123 It is immaterial whether the in the action that led to the judgment; rather, the relevant 7 inquiry is whether they could have been brought. Tahoe-Sierra 8 9 Pres. Council, 322 F.3d at 1078. The purpose of the doctrine is United States District Court For the Northern District of California 10 to "relieve parties of the cost and vexation of multiple law 11 suits, conserve judicial resources, and, by preventing 12 inconsistent decisions, encourage reliance on adjudication." 13 Marin v. HEW, Health Care Fin. Agency, 769 F.2d 590, 594 (9th Cir. 14 1985) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). Three 15 elements must be present in order for res judicata to be 16 applicable: (1) an identity of claims; (2) a final judgment on the 17 18 merits; and (3) the same parties or privity between the parties. 19 Id. 20 An identity of claims exists when two suits arise from the 21 same transactional nucleus of facts. 22 322 F.3d at 1078. 23 Tahoe-Sierra Pres. Council, Two events are part of the same transaction or series of transactions where the claims share a factual foundation 24 such that they could have been tried together. Western Systems, 25 26 Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992). "Different 27 theories supporting the same claim for relief must be brought in 28 the initial action." Id. 6 1 The complaints in this case and in case number C 11-2144 EDL 2 are virtually identical. 3 is wrongfully being deducted from his monthly social security 4 check. Therefore, there is an identity of claims in the two 5 cases. The previous case was voluntarily dismissed with 6 In both, Plaintiff asserts that $167.10 prejudice, which acts as a final judgment on the merits. See 7 Headwaters, Inc. v. United States Forest Serv., 399 F.3d 1047, 8 9 1052 (9th Cir. 2005) ("a stipulated dismissal of an action with United States District Court For the Northern District of California 10 prejudice in a federal district court generally constitutes a 11 final judgment on the merits and precludes a party from 12 reasserting the same claims in a subsequent action in the same 13 court"). 14 Finally, for res judicata to apply, the parties in the first 15 lawsuit must be identical to, or in privity with, the parties in 16 the second lawsuit. Privity exists if there is sufficient 17 18 commonality of interests between the parties. 19 Council, 322 F.3d at 1081. 20 Tahoe-Sierra Pres. In Plaintiff's previous lawsuit, the defendants were Janice 21 Bressler, an attorney with the Department of Veteran Affairs, and 22 Wendy Devine, an agent of the Internal Revenue Service (IRS). 23 IRS is an agency of the Department of Treasury. The Because Secretary 24 Geithner and Wendy Divine are government employees of the same 25 26 federal agency, they share a sufficient commonality of interests 27 to make them privies. Because there is privity between Secretary 28 Geithner and Ms. Devine, all the elements of res judicata are met 7 1 and Plaintiff's claim is barred by the doctrine of res judicata. 2 Therefore, Defendants' motion to dismiss is granted. 3 Dismissal is without leave to amend. The proper Defendant in 4 this lawsuit would be the Department of Department of Veterans 5 Affairs (VA). 6 See Thomas v. Bennett, 856 F.2d 1165, 1167 (8th Cir. 1988) (appropriate defendant for claim of setoff is not 7 Department of Treasury, but agency requesting that IRS make a 8 9 reduction). The agency that is requesting that the Department of United States District Court For the Northern District of California 10 Treasury make a deduction from Plaintiff's social security check 11 is the VA. 12 named as a defendant Janice Bressler, an attorney with the VA. 13 Ms. Bressler is in privity with the VA if Plaintiff could name it 14 in an amended complaint because there is sufficient commonality of Plaintiff sued the VA in his last lawsuit because he 15 interests between them. Thus, any amended complaint that 16 Plaintiff could bring would be barred by the application of res 17 18 judicata, rendering amendment futile. 19 is without leave to amend. 20 application of res judicata, the Court does not address 21 Defendants' other arguments for dismissal. 22 23 For this reason, dismissal Because this complaint is dismissed by CONCLUSION Based on the foregoing, Defendants' motion to dismiss is 24 granted. Dismissal is without leave to amend. 25 26 27 28 8 The clerk of the 1 court shall enter a separate judgment. 2 their own costs of suit. 3 All parties shall bear IT IS SO ORDERED. 4 5 6 Dated: 5/10/2012 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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