Levy v. First Group/Greyhound

Filing 9

ORDER Dismissing Case; ORDER TO SHOW CAUSE Why Plaintiff Should Not be Declared a Vexatious Litigant. Show Cause Response due by 4/3/2017. Amended Pleadings due by 4/3/2017. Signed by Judge Kandis A. Westmore on 3/2/2017. (Attachments: # 1 Attachment A)(kawlc2, COURT STAFF) (Filed on 3/2/2017) (Additional attachment(s) added on 3/2/2017: # 2 Certificate/Proof of Service) (sisS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MARC OLIN LEVY, 7 Case No. 17-cv-00412-KAW Plaintiff, 8 v. ORDER DISMISSING CASE; ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE DECLARED A VEXATIOUS LITIGANT 9 FIRST GROUP/GREYHOUND, 10 Defendant. United States District Court Northern District of California 11 12 Plaintiff Marc Olin Levy, who proceeds pro se, brings the instant suit against Defendant 13 14 First Group/Greyhound. (Compl., Dkt. No. 1.) Plaintiff also filed an application to proceed in 15 forma pauperis ("IFP App"), which was granted on February 8, 2017. (Dkt. Nos. 2, 8.) Plaintiff's 16 complaint, however, must be dismissed with leave to amend because the complaint fails to state a 17 claim upon which relief can be granted.1 18 I. BACKGROUND 19 Plaintiff alleges that on June 27, 2016, he took a Greyhound bus from San Francisco, 20 headed to New York. (Compl. at 6.) Two days later, the bus arrived in St. Louis, Missouri. 21 Plaintiff alleges that he had to stay at the bus depot from 9 p.m. to 12 a.m. to catch his bus to New 22 York, but that due to "a potential national security threat or the potential of a terrorist attack[, he] 23 was scared to stay at the depot." (Id.) He left the bus depot, and returned around 1 a.m., by which 24 25 26 27 28 1 Plaintiff consented to having a magistrate judge conduct further proceedings in this case. (Docket No. 3.) The Court does not require the consent of Defendant because Defendant has not been served and therefore is not a party within the meaning of 28 U.S.C. § 636(c). See Ornelas v. De Frantz, No. 00-1067, 2000 WL 973684, at *2 n.2 (N.D. Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1994) (magistrate judge has jurisdiction to dismiss prisoner's civil rights action without consent of defendants because defendants had not been served yet and therefore were not parties). 1 2 point the bus had left. Plaintiff alleges that Greyhound's policy is that when a passenger misses a bus, a passenger 3 must pay $20 to get back on the bus. Plaintiff further alleges that Greyhound usually allows 4 people to stay at the station if stranded to let people try to raise the $20 needed. Greyhound's 5 security, however, forced Plaintiff to leave, resulting in Plaintiff being left homeless in St. Louis 6 for four days. 7 Plaintiff eventually called his parents, who purchased him a ticket back to California. On 8 the bus back to San Francisco, Plaintiff got off the bus at Grand Junction, Colorado. Plaintiff 9 alleges that he was only off the bus for five minutes to use the restroom and get water, but that the 10 United States District Court Northern District of California 11 bus had left by the time he went back outside. Plaintiff was stranded in Grand Junction for two to three days. On July 4, 2016, he went to 12 a store and asked if he could use an electrical socket to power up his phone so that he could call 13 his parents. (Id. at 6-7.) The store allowed Plaintiff to use a side room. (Id. at 7.) While 14 powering up his cell phone, the police arrived and arrested Plaintiff for trespassing. Plaintiff was 15 taken to a mental health facility, where he stayed for two weeks while arranging for transportation 16 back to California. 17 Plaintiff then filed the instant suit, alleging breach of contract and negligence for stranding 18 him in St. Louis and Grand Junction. Plaintiff also challenges Greyhound's failure to include 19 clean running water on their buses. Plaintiff seeks $10 billion in stock ownership in Defendant's 20 company. 21 II. IN FORMA PAUPERIS APPLICATION 22 A. 23 When presented with an application to proceed in forma pauperis, the court must first Legal Standard 24 determine if the applicant satisfies the economic eligibility requirements of 28 U.S.C. § 1915(a). 25 Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require 26 absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d 853, 854 (10th Cir. 27 1982) (citing Adkins v. E.I. Du Pont de Nemous & Co., Inc., 335 U.S. 331, 339 (1948)). 28 Once the court grants an application to proceed in forma pauperis, pursuant to 28 U.S.C. 2 1 § 1915(e)(2), the court "shall dismiss [a] case at any time if the court determines that . . . the 2 action . . . fails to state a claim on which relief may be granted." See Fed. R. Civ. P. 12(b)(6). 3 Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain "a short and plain 4 statement of the claim showing that the pleader is entitled to relief." But "a complaint must 5 contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 6 face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the 7 elements of a cause of action" and "conclusory statements" are not adequate. Ashcroft v. Iqbal, 8 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a probability requirement, but 9 it asks for more than a sheer possibility that a defendant has acted unlawfully . . . . When a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the 11 United States District Court Northern District of California 10 line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. 12 at 557) (internal citations omitted). 13 Pro se pleadings are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) 14 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). "A pro se complaint, however inartfully 15 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers . . . . " 16 Estelle, 429 U.S. at 106 (internal citations omitted). 17 B. 18 The Court finds that dismissal of the complaint is appropriate. As an initial matter, Discussion 19 Plaintiff has failed to separately plead each cause of action. See Fed. R. Civ. P. 10 ("A party 20 must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a 21 single set of circumstances. . . . If doing so would promote clarity, each claim founded on a 22 separate transaction or occurrence . . . must be stated in a separate count or defense."). Plaintiff 23 does not separately plead any of his causes of actions. For the sake of clarity, Plaintiff should 24 separately plead each cause of action, along with the specific facts that support each one. 25 On the merits, Plaintiff has not adequately pled a breach of contract or negligence claim. 26 First, to state a breach of contract claim under California law, a plaintiff must allege: "(1) the 27 contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and 28 (4) the resulting damages to plaintiff." Reichert v. General Ins. Co., 68 Cal. 2d 822, 830 (1968). 3 1 Plaintiff has not pled the existence of a contract between Plaintiff and Defendant, or the terms of 2 the contract at issue in this suit, including what terms Defendant allegedly breached. Plaintiff 3 does not, for example, allege the existence of a contract which required the bus to wait for 4 Plaintiff at St. Louis or Grand Junction, or to allow Plaintiff to stay at the St. Louis bus depot. At 5 most, Plaintiff alleges that Greyhound "typical[l]y, usually" will allow people to stay at the 6 station if stranded, but this is not the equivalent of a binding contract that obligated Greyhound 7 to allow Plaintiff to stay at the bus depot. (See Compl. at 6.) Thus, this is insufficient to plead a 8 breach of contract claim. Second, to prove negligence under California law a plaintiff must plead and prove: (1) 9 defendant's legal duty of care toward plaintiff, (2) defendant's breach of that duty, (3) damage or 11 United States District Court Northern District of California 10 injury to plaintiff, and (4) a causal relationship between defendant's negligence and plaintiff's 12 damages. Palm v. United States, 835 F. Supp. 512, 520 (N.D. Cal. 1993). Plaintiff fails to 13 adequately plead the existence of a legal duty. Plaintiff has not, for example, pled facts showing 14 that Defendant had a legal duty to wait for him at Grand Junction. Plaintiff also does not plead 15 facts showing that Defendant had a legal duty to allow Plaintiff to stay at the St. Louis bus 16 depot.2 Finally, Plaintiff does not plead facts showing that Defendant has a legal duty to have 17 clean running water on their buses. Absent a legal duty of care, Defendant cannot be held liable 18 for negligence. 19 Because Plaintiff has failed to allege adequate facts to support his claims, the Court 20 dismisses Plaintiff's complaint with leave to amend. Plaintiff shall file a first amended complaint 21 within 30 days of this order. Plaintiff is on notice that the first amended complaint will 22 supersede the original complaint, such that it will be treated as nonexistent. See Armstrong v. 23 Davis, 275 F.3d 849, 878 n.40 (9th Cir. 2001), abrogated on other grounds by Johnson v. Cal., 24 543 U.S. 499 (2005). For this reason, Plaintiff shall properly identify the legal and factual bases 25 for all of his claims, free of any reference to any prior complaint, and he shall clearly identify the 26 specific claims asserted against each defendant. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 27 2 28 Plaintiff alleges that Defendant violated the law by removing him from the premises in St. Louis, but does not identify what law he relies on. 4 1 1987), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012). He 2 must also, if possible, show a basis for this Court to have jurisdiction over the case, or his 3 complaint will be dismissed with prejudice. Failure to file a first amended complaint within 30 4 days of this order may result in dismissal of this action for failure to prosecute. 5 To ensure that his first amended complaint complies with this order, Plaintiff may wish to 6 contact the Federal Pro Bono Project’s Help Desk—a free service for pro se litigants—by calling 7 (415) 782-8982. The Court has also adopted a manual for use by pro se litigants, which may be 8 helpful to Plaintiff. This manual, and other free information is available online at: 9 http://cand.uscourts.gov/proselitigants. 10 United States District Court Northern District of California 11 III. VEXATIOUS LITIGANT When a litigant has filed numerous harassing or frivolous lawsuits, the Court has the 12 power to declare him a vexatious litigant and enter an order requiring that any future complaints 13 be subject to an initial review before they are filed. District courts have the power to enter pre- 14 trial filing orders against a vexatious litigant under the All Writs Act. 28 U.S.C. § 1651(a); 15 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir 2007). The Ninth Circuit has 16 cautioned that "such pre-filing orders are an extreme remedy that should rarely be used" because 17 of the danger of "tread[ing] on a litigant's due process right of access to the courts." Molski, 500 18 F.3d at 1057. Nevertheless, such pre-filing orders may be appropriate because "[f]lagrant abuse 19 of the judicial process . . . enables one person to preempt the use of judicial time that properly 20 could be used to consider the meritorious claims of other litigants." De Long v. Hennessey, 912 21 F.2d 1144, 1148 (9th Cir. 1990). 22 The Ninth Circuit lists the following requirements for entering pre-filing orders against 23 vexatious litigants. First, the Court must give the litigant notice and an opportunity to be heard 24 before the order is entered. Second, the Court must compile an adequate record for review, 25 including a list of all filings leading to the conclusion that the individual is a vexatious litigant. 26 Third, the Court must make a substantive finding that the litigant's filings are frivolous or 27 harassing. Finally, the pre-filing order cannot be overly broad, but must be "narrowly tailored to 28 closely fit the specific vice encountered." De Long, 912 F.2d at 1147-48. 5 Since 2010, Plaintiff has filed 21 lawsuits in this district, nearly all of which were 1 2 dismissed at an early stage for having no merit.3 (Attachment A; e.g., Levy v. Cumulus Media, 3 Inc., Case No. 11-cv-6616-WHA, Dkt. No. 7 (dismissing case for failure to state a claim where 4 Plaintiff sought $100 million in damages for an allegedly anti-Semitic slur that was personally 5 offensive to him when a radio announcer referred to Tim Tebow as "T-Brew"); Levy v. 6 Newscorp, Case No. 12-cv-1293-EDL, Dkt. No. 7 (dismissing case for failure to state a claim 7 where Plaintiff sought $5 trillion for the defendant's alleged failure to report on stories that 8 Plaintiff submitted); Levy v. Comerica Bank, Case No. 12-cv-1296-MEJ, Dkt. No. 6 (dismissing 9 claim for failure to state a claim where Plaintiff sought $61 trillion because the defendant allegedly "steered" Plaintiff into a $30 to $35 thousand business loan instead of the $50,000 loan 11 United States District Court Northern District of California 10 he requested); Levy v. Primerica Inc., Case No. 16-cv-1254-HRL, Dkt. No. 14 (granting motion 12 to dismiss for failure to state a claim where Plaintiff sought $2 billion for being disqualified as a 13 job applicant due to his criminal record, and noting that this was the third employment lawsuit 14 filed by Plaintiff in two years).) Notably, in several of these cases which were dismissed for 15 failure to state a claim, Plaintiff asserted that he was a lawyer, although he is not listed on the 16 California State Bar website as being licensed to practice law. (See Levy v. AT&T Corp., Case 17 No. 11-cv-6615-DMR, Dkt. No. 1 (stating that he is a "Federal Civil Rights Lawyer" but 18 admitting that he is "not an attorney"); Levy v. United States of America, Case No. 12-cv-1294- 19 EDL, Dkt. No. 1 (stating that he is a "pro se lawyer"); Levy v. United States of America, Case 20 No. 12-cv-1297-DMR, Dkt. No. 1 (stating that he is a "pro se lawyer"); Levy v. AT&T Corp., 21 Case No. 17-cv-411-MEJ, Dkt. No. 1 (stating that he is a "lawyer for the People" but admitting 22 that he is not an attorney).4) Pursuant to the first De Long requirement, Plaintiff is hereby 23 3 24 The Court notes that an order to show cause as to why Plaintiff should not be deemed a vexatious litigant has also been filed in Levy v. AT&T Corp., Case No. 17-cv-411-MEJ, Dkt. No. 10. 25 4 26 27 28 Plaintiff now appears to be filing suits based on claims that were previously dismissed. In the first Levy v. AT&T Corp., Plaintiff sued AT&T Corporation based on AT&T's failure to publish an ad for his "law firm," which was submitted to AT&T on October 28, 2011. (Case No. 11-cv6615-DMR, Dkt. No. 1.) Plaintiff's complaint was dismissed because "the court cannot discern a cognizable legal claim based on Defendant's alleged mere refusal to not publish Plaintiff's advertisement in the style and with the content that he desired." (Case No. 11-cv-6615-DMR, Dkt. No. 6.) On January 26, 2017, Plaintiff filed a second lawsuit against AT&T, again based on 6 1 ORDERED to show cause why he should not be declared a vexatious litigant and have a pre- 2 filing order entered against him. He must respond to this order within 30 days of the date of this 3 order, and address each of the factors listed above. 4 5 IV. CONCLUSION For the reasons stated above, Plaintiff's complaint is dismissed with leave to amend. 6 Plaintiff has thirty days from the date of this order to: (1) file an amended complaint that corrects 7 the deficiencies stated in this order, and (2) respond to the order to show cause by explaining 8 why Plaintiff should not be declared a vexatious litigant and have a pre-filing order entered 9 against him. 10 United States District Court Northern District of California 11 12 13 IT IS SO ORDERED. Dated: March 2, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT&T's failure to publish an ad for his "law firm," which had been submitted on October 8, 2011. (Case No. 17-cv-411-MEJ, Dkt. No. 1.) 7

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