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)

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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

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