Lagana v. Democratic Party et al

Filing 9

ORDER GRANTING PLAINTIFFS #3 APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT. Signed by Judge Claudia Wilken on 1/30/2013. (Attachments: #1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/30/2013)

1
2
3

IN THE UNITED STATES DISTRICT COURT

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

5
6
7
8
9

United States District Court
For the Northern District of California

10

No. C 12-6379 CW

JOSEPH VICTOR LAGANA,

ORDER GRANTING
PLAINTIFF’S
APPLICATION TO
PROCEED IN FORMA
PAUPERIS AND
DISMISSING
COMPLAINT

Plaintiff,
v.
DEMOCRATIC PARTY, et al.,

11

Defendants.

12
13

________________________________/

14
15

Plaintiff Joseph Lagana has filed an application for leave to

16

proceed in forma pauperis (IFP).

17

papers.

18

the Court grants the application to proceed IFP and dismisses the

19

complaint.

20
21

The matter was decided on the

Having considered all of the papers filed by Plaintiff,

LEGAL STANDARD
A court may authorize a plaintiff to prosecute an action in

22

federal court without prepayment of fees or security if the

23

plaintiff submits an affidavit showing that he or she is unable to

24

pay such fees or provide such security.

25

Plaintiff has submitted the required documentation, and it appears

26

from his application that his assets and income are insufficient

27

to enable him to prosecute the action.

28

See 28 U.S.C. § 1915(a).

Accordingly, the

1

application to proceed without the payment of the filing fee is

2

granted.

3

The Court’s grant of Plaintiff's application to proceed IFP,

4

however, does not mean that he may continue to prosecute his

5

complaint.

6

filed without the payment of the filing fee whenever it determines

7

that the action “(i) is frivolous or malicious; (ii) fails to

8

state a claim on which relief may be granted; or (iii) seeks

9

monetary relief against a defendant who is immune from such

A court is under a continuing duty to dismiss a case

United States District Court
For the Northern District of California

10

relief."

28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

11

pursuant to § 1915(e)(2)(B) is not a dismissal on the merits, but

12

rather an exercise of the court's discretion under the IFP

13

statute, the dismissal does not prejudice the filing of a paid

14

complaint making the same allegations.

15

U.S. 25, 32 (1992).

16
17

Because a dismissal

Denton v. Hernandez, 504

PROCEDURAL BACKGROUND
I.

2008 Lawsuit

18

In 2008, Plaintiff filed suit in the Superior Court of

19

California for the City and County of San Francisco against the

20

City and County of San Francisco. SF Superior Court Case No. CGC-

21

08-475803.

22

See Case Number 08-3392, Docket No. 1.

23

asserted claims based on facts that are substantially similar to

24

the majority of the facts alleged in the instant complaint.

25

Case Number 08-3392, Docket No. 18.

26

Court granted the defendant’s motion for summary judgment on

27

Plaintiff’s federal claims, and remanded Plaintiff’s state claims

28

to state court.

The case was removed by the defendant to this court.
In that case, Plaintiff

On October 14, 2009, this

See Case Number 08-3392, Docket No. 70.

2

See

After

1

the Ninth Circuit dismissed Plaintiff’s appeal, Plaintiff filed a

2

Fourth Amended Complaint and a Notice of Removal from State Court

3

to Federal Court.

4

November 3, 2010, the Court granted the defendant’s motion to

5

strike the Fourth Amended Complaint and remand the case to state

6

court.

See Case No. 08-3392, Docket Nos. 89, 90.

On

See Case No. 08-3392, Docket No. 93.

In state court, Plaintiff filed a copy of the same complaint

7

filed in this Court as the Fourth Amended Complaint.

9

Superior Court 08-475803, Docket Entry for August 19, 2010.

10
United States District Court
For the Northern District of California

8

October 6, the state court granted the defendant’s motion to

11

strike the amended complaint. On June 30, 2011, the state court

12

granted the defendant’s unopposed motion for summary judgment.

13

Judgment was entered in the defendant’s favor on November 10,

14

2011.

15

II.

16

See SF
On

Current Lawsuit
Plaintiff has now filed a copy of the complaint filed as the

17

Fourth Amended Complaint in the 2008 case and filed in the state

18

court on August 19, 2010, with hand-written alterations and

19

without the last page.

20

claims are identical to those stated in the Third Amended

21

Complaint in the 2008 case, all of which were resolved on the

22
23

The vast majority of the allegations and

merits in favor of the City and County of San Francisco, the
defendant in that case.

Plaintiff now names many other

24
defendants, including the Democratic Party, the “Santa Clara
25
Police Department,” the “City and County of Santa Clara,” and
26
numerous individuals who are sued in their official and individual
27
capacities.
28

3

1
2

DISCUSSION
I.

3

Additional Defendants
Plaintiff has handwritten the names of several defendants on

4

the caption of his complaint.

5

Party,” “Santa Clara Police Department,” “City and County of Santa

6

Clara,” “Santa Clara Mayor Jamie L. Matthews,” and “Judy Lamar-

7

Mc___.”

8

allegations regarding these defendants.

9

plead against these defendants are dismissed.

United States District Court
For the Northern District of California

10
11

II.

These defendants are “Democratic

However, the complaint does not include any factual
Accordingly, all claims

Civil Rights Claims
Plaintiff alleges that Defendants violated his rights under

12

the First, Fourth, and Fourteenth Amendments to the United States

13

Constitution.

14

for the ‘deprivation of any rights, privileges, or immunities

15

secured by the Constitution and laws’ of the United States.”

16

Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting

17

42 U.S.C. § 1983).

18

apply the forum state’s statute of limitations for personal injury

19

actions . . . .”

20

2004).

21

injury claims is two years.

22

Title 42 U.S.C. § 1983 “provides a cause of action

“For actions under 42 U.S.C. § 1983, courts

Jones v. Blanas, 383 F.3d 918, 927 (9th Cir.

In California, the statute of limitations for personal
Cal. Civ. Proc. Code § 335.1.

Plaintiff has also alleged a claim under 42 U.S.C. § 1985.

23

The Ninth Circuit has held that actions under § 1985 are “best

24

characterized as personal injury actions and are governed by the

25

same statute of limitations as actions under § 1983.”

26

County of Imperial, 942 F.2d 668, 673-74 (9th Cir. 1991).

27

California state law also applies to determine whether equitable

28

tolling excuses the filing of a § 1983 or § 1985 claim outside of

4

McDougal v.

the statute of limitations.

2

Angeles, 120 F.3d 982, 984 (9th Cir. 1997).

3

equitable tolling doctrine, the time a plaintiff spends pursuing

4

his or her claims in state court may suspend the running of the

5

statute of limitations in federal court when three conditions are

6

satisfied: “(1) timely notice to the defendant in filing the first

7

claim; (2) lack of prejudice to defendant in gathering evidence to

8

defend against the second claim; and, (3) good faith and

9

reasonable conduct by the plaintiff in filing the second claim.”

10
United States District Court
For the Northern District of California

1

Donoghue v. County of Orange, 848 F.2d 926, 931 (9th Cir. 1988)

11

(citing Collier v. City of Pasadena, 142 Cal. App. 3d 917, 922-24

12

(1983)).

13

Estate of Blue v. County of Los
Under California's

Plaintiff’s §§ 1983 and 1985 claims are based on events that

14

occurred between 2008 and 2010.

The event with the latest date

15

described in Plaintiff’s complaint is a phone call made on August

16

17, 2010.

17

complaint on December 11, 2012, more than two years after the

18

events described.

19

related claims in both state and federal court between 2008 and

20

2011, the Court will not grant Plaintiff leave to amend to allege

21

that the late filing of his §§ 1983 and 1985 claims should be

22

excused by the doctrine of equitable tolling.

23

that Plaintiff has not acted reasonably and in good faith.

24

Plaintiff did not actively pursue his claims in state court after

25

his 2008 case was dismissed by this Court.

26

oppose the defendant’s motion for summary judgment in state court

27

and proceeded to refile his claims in this Court.

See Complaint at ¶ 129.

However, Plaintiff filed his

Although Plaintiff was pursuing identical or

28

5

The Court finds
First,

Instead, he failed to

Moreover,

1

Plaintiff has refiled multiple claims that were previously decided

2

on the merits by either this Court or the state court.

3

Accordingly, Plaintiff’s §§ 1983 and 1985 claims are

4

dismissed with prejudice.

5

III. RICO Claim

6

At paragraphs 271 through 275, Plaintiff asserts a claim

7

under the Racketeer Influenced and Corrupt Organizations Act

8

(RICO).

9

person injured in his business or property by reason of a

“RICO provides a private cause of action for ‘[a]ny

United States District Court
For the Northern District of California

10

violation of section 1962 of this chapter.’”

11

City of New York, 130 S. Ct. 983, 987 (2010) (quoting 18 U.S.C.

12

§ 1964(c)).

13

provisions.

14

Hemi Group, LLC v.

Section 1962 contains the substantive criminal RICO

Under RICO, a “plaintiff only has standing if, and can only

15

recover to the extent that, he has been injured in his business or

16

property by the conduct constituting the violation.” Sedima,

17

S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).

18

Court has held that “to state a claim under civil RICO, the

19

plaintiff is required to show that a predicate offense not only

20

was a ‘but for’ cause of his injury, but was the proximate cause

21

as well.”

Hemi Group, 130 S. Ct. at 989 (internal quotation marks

22

omitted).

For purposes of RICO, proximate cause requires “some

23

direct relation between the injury asserted and the injurious

24

conduct alleged.”

25

258, 268 (1992).

26

The Supreme

Holmes v. Sec. Investor Prot. Corp., 503 U.S.

It is not clear what activity Plaintiff alleges is the

27

racketeering activity that violates RICO or how such activity

28

relates to injuries sufficient to support standing.

6

In his

1

statement of facts, Plaintiff alleges, “The Defendant is also

2

guilty of racketeering, punishable under the Federal RICO Act

3

because of their tampering of evidence, obstruction of justice,

4

and working with Ross Stores to harass the Plaintiff, impede his

5

protesting efforts, and deprive him of his rights.”

6

¶ 119.

7

Plaintiff has been “injured in his business or property.”

8

473 U.S. at 496.

Complaint

This allegation is not sufficient to establish that
Sedima,

Under the heading for his RICO claim, Plaintiff makes

9

United States District Court
For the Northern District of California

10

specific allegations regarding the San Francisco Police Officer’s

11

Association (SFPOA).

12

President of the SFPOA “says majority of lawsuits against police

13

are frivolous and shows little remorse to the PLAINTIFF for the

14

wrongs committed by the SFPD officers towards the plaintiff.”

15

Complaint ¶ 274.

16

lobbying to keep funding for cameras and recording devices in SFPD

17

vehicles in order to continue it’s [sic] criminal enterprise that

18

is ran [sic] by miscreant SFPD officers,”

19

allegations are not sufficient to establish any individual

20

criminal acts, or the “pattern of racketeering activity” required

21

by § 1962.

22

IV.

23

First, he alleges that the unnamed Vice

Next, Plaintiff alleges that the SFPOA “has been

Complaint ¶ 275.

These

Accordingly Plaintiff’s RICO claim is dismissed.

Other Federal Claims
In addition to claims under § 1983, Plaintiff alleges several

24

other federal claims:

25

242, 1512, 1513 and 42 U.S.C. § 14141.

26

that Defendant violated 18 U.S.C. §§ 241,

As the Court found in its October 14, 2009 order granting

27

summary judgment to the defendant in Plaintiff’s 2008 case,

28

“Sections 241 and 242 are criminal statutes.

7

Plaintiff, as a

1

private citizen, may not bring a criminal action against

2

Defendant.”

3

true of §§ 1512 and 1513.

4

Case No. 08-3392, Docket No. 70 at 10.

This is also

Title 42 U.S.C. § 14141 authorizes the Attorney General to

5

institute a civil action in certain circumstances.

6

a private citizen, may not bring a suit pursuant to this section.

7

Accordingly, Plaintiff’s remaining federal claims are

8

dismissed with prejudice.

9

V.

10
United States District Court
For the Northern District of California

Plaintiff, as

State Law Claims
As in the 2008 lawsuit, Plaintiff alleges that Defendants

11

have violated many state laws and provisions of the state

12

constitution.

13

courts to decline to exercise supplemental jurisdiction over a

14

state law claim if “the claim substantially predominates over the

15

claim or claims over which the district court has original

16

jurisdiction.”

17

supplemental jurisdiction, the Court should consider whether

18

remanding the rest of the case to state court will accommodate the

19

values of “economy, convenience, fairness, and comity.”

20

Software North America, Inc. v. United States District Court, 24

21

F.3d 1545, 1557 (9th Cir. 1994), overruled on other grounds by

22

Cal. Dep't of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir.

23

2008).

24

Title 28 U.S.C. § 1367(c)(2) authorizes district

In determining whether to decline to exercise

Executive

As discussed above, the Court dismisses all of Plaintiff’s

25

federal claims.

26

case are similar or identical to the state law claims in the 2008

27

case, which were resolved by the state court.

28

efficient for the state court to evaluate Plaintiff’s state law

Moreover, many of the state law claims in this

8

It will be more

1

claims, including determining whether the claims are precluded by

2

the 2008 litigation.

3

convenience, fairness, and comity favor dismissal of the state law

4

claims.

Accordingly, the values of economy,

5
6

CONCLUSION
For the foregoing reasons, the Court dismisses Plaintiff’s

7

claims.

8

futile, the complaint is dismissed without leave to amend.

9

Dismissal of Plaintiff's state law claims is without prejudice to

United States District Court
For the Northern District of California

10
11

Because amendment of Plaintiff's federal claims would be

him refiling those claims in state court.
IT IS SO ORDERED.

12
13
14

Dated: 1/30/2013
CLAUDIA WILKEN
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28

9