Polk v. Polk et al

Filing 20

ORDER OF DISMISSAL, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 2/21/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 2/21/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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SUSAN MAE POLK,
Plaintiff,

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vs.

ORDER OF DISMISSAL

JOHN POLK, et al.,
Defendants.

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For the Northern District of California

United States District Court

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No. C 12-1026 PJH (PR)

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Plaintiff, a state prisoner, has filed a pro se complaint under 42 U.S.C. § 1985 and
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18 U.S.C. § 1962. Plaintiff’s original complaint was dismissed with leave to amend and she
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has filed an amended complaint.
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BACKGROUND
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Plaintiff was convicted of second degree murder of her husband in a well-publicized
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trial. See People v. Polk, 190 Cal. App. 4th 1183 (2010). The court first notes that this
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action is substantially similar to an earlier action filed by plaintiff, Polk v. Daly, No. C 1219
0193 PJH (PR). Regardless, the court will review each case separately as there are some
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differences and different defendants. Plaintiff names as defendants, her brother-in-law, his
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attorney, the attorney’s friends and the buyers of some real property, an apartment in
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Berkeley, CA. Plaintiff alleges that prior to her incarceration, she and her husband created
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a trust and certain real property was placed in the trust, the apartment in Berkeley and a
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house in Orinda, CA. Plaintiff alleges that the defendants have conspired to take control of
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the trust and sell the real property for their benefit while intimidating her and other
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witnesses.
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Plaintiff’s claims here are also related to a lien placed on her interest in the real
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property to satisfy Contra Costa County for what it claimed were the costs of her criminal

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defense. Plaintiff contended in her appeal of the criminal conviction that the trial court had

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not held a hearing to determine if she could afford to pay the lien before approving its

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payment. The court of appeal held that such a hearing was necessary and remanded with

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instructions to hold one. People v. Polk, at 1208-11. Plaintiff also filed four appeals from

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orders in an action brought by the executor of her husband’s estate to partition real

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property. See Polk v. Polk, 2009 WL 2613930 (2009). She was entirely unsuccessful. Id.

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at *1, *8. Many of the issues in those appeals appear to be similar to the claims she raises

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here and in the other federal case.

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For the Northern District of California

United States District Court

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at

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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of

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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;

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the statement need only '"give the defendant fair notice of what the . . . . claim is and the

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grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

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omitted). Although in order to state a claim a complaint “does not need detailed factual

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allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained
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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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framework of a complaint, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1950 (2009).

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B.

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Legal Claims
Plaintiff has brought this action pursuant to 42 U.S.C. § 1985 and 18 U.S.C § 1961,

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et seq. Section 1985 provides a cause of action against two or more individuals where

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such individuals conspire to interfere with civil rights by (1) preventing an officer from
performing her duties; (2) obstructing justice by intimidating a party to a legal proceeding or

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For the Northern District of California

United States District Court

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a witness or a juror associated with that proceeding; or (3) depriving one of rights and

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privileges under the Constitution.

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Though not specified in the complaint, it appears that plaintiff asserts her § 1985

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allegations under (2) and (3) above. The Ninth Circuit has clarified that “Section 1985(2)

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has two separate parts. The first part of the subsection addresses conspiracies which

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deter by force, intimidation, or threat a party or witness in federal court. The second part of

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the subsection creates a federal right of action for damages against conspiracies which

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obstruct the due course of justice in any State or Territory with intent to deny equal

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protection.” Bagley v. CMC Real Estate Corp., 923 F.2d 758, 763 (9th Cir. 1991) (citations

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and quotation marks omitted).

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Similarly, 42 U.S.C. § 1985(3) provides a cause of action against state or private

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conspiracies. See Griffin v. Breckenridge, 403 U.S. 88, 101–02 (1971). The first clause

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pertains to conspiracy to deny equal protection of the laws on the highway or on the

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premises of another; the second clause pertains to conspiracy to prevent or hinder state

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officers from providing equal protection to all persons within the state; and the third clause

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pertains to conspiracy to interfere with federal elections. See 42 U.S.C. § 1985(3). A

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cause of action under § 1985(3) requires a showing of some racial or class-based

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discrimination. See Kush v. Rutledge, 460 U.S. 719, 724–26 (1983).
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In the complaint, plaintiff alleges that while she was in custody regarding the murder

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of her husband, the defendants forced her to agree to certain terms regarding the trust and

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sale of the property. Plaintiff sets forth no allegations that there was any court hearing,

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state or federal that she could not attend or testify at, as required by the statute, rather she

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was intimidated and threatened into an agreement and not challenging certain business

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decisions. In the original complaint plaintiff presented no allegations regarding

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discrimination, however in the amended complaint she argues that her deceased husband

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who was Jewish demanded that she convert to Judaism from Christianity, but she did not.

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Plaintiff alleges that her husband maligned and ridiculed her and the rest of his family
treated her poorly. Even if her husband discriminated against her, he is a not a defendant

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For the Northern District of California

United States District Court

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in this action and plaintiff has failed to demonstrate sufficient discrimination on behalf of the

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named defendants. For all these reasons plaintiff’s claims fail to state a claim under 42

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U.S.C. § 1985.

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The Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §

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1961–1968 allows a private citizen to sue to recover treble damages for injury “by reason of

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a violation of section 1962,” which prohibits conducting or participating in the conduct of an

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enterprise through a pattern of racketeering activity or through the collection of an unlawful

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debt. 18 U.S.C. § 1962. A violation of section 1962(c) requires 1) conduct 2) of an

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enterprise 3) through a pattern 4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co.,

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473 U.S. 479, 496 (1985). Plaintiff’s allegations on how the conduct violates RICO are

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vague at best. Even assuming there was racketeering activity plaintiff has failed to show a

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pattern and has thus failed to state a claim.

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Finally the majority events that plaintiff describes occurred from 2002 to 2007. The

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statute of limitations for civil RICO actions is four years. Agency Holding Corp. v.

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Malley-Duff & Associates, Inc., 483 U.S. 143, 156 (1987). The Ninth Circuit follows the

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“injury discovery” statute of limitations rule for civil RICO claims. Pincay v. Andrews, 238

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F.3d 1106, 1109 (2001). “Under this rule, ‘the civil RICO limitations period begins to run

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when a plaintiff knows or should know of the injury that underlies his cause of action.’” Id.
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at 1109 (quoting Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996) (internal quotation

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marks omitted)). The “injury discovery” rule creates a disjunctive two-prong test of actual or

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constructive notice, under which the statute begins running under either prong. Id.

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It appears that plaintiff was aware of these events by 2002 and 2003 and by 2007 at

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the latest, however this action was not filed until February 29, 2012.1 Thus, this action is

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also beyond the statute of limitations. See Franklin v. Murphy, 745 F.2d 1221, 1228-30

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(9th Cir. 1984) (dismissal under 28 U.S.C. § 1915 where the defense is complete and

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obvious from the face of the pleadings or the court's own records).

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Although not specified, to the extent plaintiff also seeks to bring this action under 42
U.S.C. § 1983 for violation of her Fourth, Sixth and Fourteenth Amendment rights, the

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For the Northern District of California

United States District Court

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complaint again fails to state a claim. To state a claim under 42 U.S.C. § 1983, a plaintiff

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must allege two essential elements: (1) that a right secured by the Constitution or laws of

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the United States was violated, and (2) that the alleged deprivation was committed by a

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

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has failed to identify any defendants who were acting under state law and further fails to

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explain which facts support each constitutional violation.

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Thus, plaintiff’s amended complaint will be dismissed and as it is clear that no

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amount of amendment would cure the deficiencies noted above, this case is dismissed with

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prejudice. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000).

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CONCLUSION

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The complaint will be DISMISSED and as plaintiff has already been provided an

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opportunity to amend and as it is clear no amount of amendment would cure the

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deficiencies of this action, the case is DISMISSED with prejudice for failure to state a claim

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on which relief may be granted.

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///

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///

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In Polk v. Daly, No. C 12-0193 PJH (PR), plaintiff was ordered to address the statute
of limitations issue, but she never discussed the issue.
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IT IS SO ORDERED.
Dated: February 21, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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