Campbell v. Obama et al
Filing
209
ORDER GRANTING REMAINING DEFENDANTS' MOTIONS TO DISMISS (ECF #129 , #130 , #131 , #155 ) WITHOUT LEAVE TO AMEND; CONSTRUING MOTION TO DISMISS BROUGHT BY PREVIOUSLY DISMISSED DEFENDANT MP SHORELINE (ECF #145 ) AS AN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND; TERMINATING AS MOOT MOTION TO DISMISS BROUGHT BY PREVIOUSLY DISMISSED DEFENDANTS LOS ALTOS, ALVAREZ, AND BRIAN (ECF #133 ); DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND (ECF #126 ); DENYING PLAINTIFF'S OTHER MOTIONS AND REQUESTS (ECF #140 , #165 , #176 , #180 , #193 , #194 ); AND DISMISSING ACTION WITH PREJUDICE. Signed by Judge Beth Labson Freeman on 3/18/2016. (blflc1S, COURT STAFF) (Filed on 3/18/2016) (Additional attachment(s) added on 3/21/2016: #1 Certificate/Proof of Service) (tshS, COURT STAFF).
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
SAN JOSE DIVISION
7
8
KENNETH L. CAMPBELL,
Case No. 14-cv-03071-BLF
Plaintiff,
9
v.
10
11
BARACK OBAMA, et al.,
United States District Court
Northern District of California
Defendants.
12
13
14
15
16
17
18
19
ORDER GRANTING REMAINING
DEFENDANTS’ MOTIONS TO DISMISS
(ECF 129, 130, 131, 155) WITHOUT
LEAVE TO AMEND; CONSTRUING
MOTION TO DISMISS BROUGHT BY
PREVIOUSLY DISMISSED
DEFENDANT MP SHORELINE
(ECF 145) AS AN OPPOSITION TO
PLAINTIFF’S MOTION FOR LEAVE
TO AMEND; TERMINATING AS
MOOT MOTION TO DISMISS
BROUGHT BY PREVIOUSLY
DISMISSED DEFENDANTS LOS
ALTOS, ALVAREZ, AND BRIAN (ECF
133); DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND (ECF 126);
DENYING PLAINTIFF’S OTHER
MOTIONS AND REQUESTS (ECF 140,
165, 176, 180, 193, 194); AND
DISMISSING ACTION WITH
PREJUDICE
20
21
22
Plaintiff Kenneth L. Campbell, proceeding pro se, sues Barack Obama, President of the
23
United States, and many others for a variety of claims which include a constitutional challenge to
24
Medicare’s statutory 100-day limitation on skilled nursing facility (“SNF”) care; a request to
25
abolish the State Bar of California on the ground that all attorneys are dishonest; and claims of
26
elder abuse and disability discrimination against Kaiser Foundation Health Plan, Inc.
27
28
This order addresses motions to dismiss brought by all defendants remaining in the case
(ECF 129, 130, 131, 155); motions to dismiss brought by two defendants previously dismissed
1
from the case (ECF 133, 145); Campbell’s motion for leave to amend his pleading to add new and
2
previously dismissed defendants (ECF 126); and several other motions and requests by Campbell
3
(ECF 140, 165, 176, 180, 193, 194). For the reasons discussed below, the motions to dismiss
4
brought by all remaining defendants (ECF 129, 130, 131, 155) are GRANTED WITHOUT
5
LEAVE TO AMEND; the motion to dismiss brought by previously dismissed defendant MP
6
Shoreline (ECF 145) is construed as an opposition to Campbell’s motion for leave to amend; the
7
motion to dismiss brought by previously dismissed defendants Los Altos Sub Acute, Alvarez, and
8
Brian (ECF 133) is terminated as MOOT; Campbell’s motion for leave to amend to add new and
9
previously dismissed defendants (ECF 126) is DENIED; Campbell’s remaining motions and
requests (ECF 140, 165, 176, 180, 193, 194) are DENIED; and the action is DISMISSED WITH
11
United States District Court
Northern District of California
10
PREJUDICE.
12
I.
BACKGROUND
13
Original Complaint
14
Campbell, proceeding pro se, filed the complaint in this action on July 7, 2014, suing nine
15
sets of defendants: (1) Barack Obama, President of the United States; (2) Sylvia Burwell,
16
Secretary of Health and Human Services; (3) Kaiser Foundation Health Plan, Inc. and Venesha
17
Clachar; (4) Los Altos Sub Acute and Rehabilitation Center, J. Alvarez, and Mark Brian; (5) SC
18
County Welfare and Robert Brizuela; (6) SC County Welfare and Patricia Melenudo; (7) MP
19
Shoreline Associates dba Shorebreeze Apartment and Martha Ray; (8) Senior Adults Legal
20
Assistance (“SALA”) and Michele Schroeder; and (9) the State Bar of California. See Compl.,
21
ECF 1.
22
Complaint Dismissed With Leave To Amend In Part
23
All defendants filed motions to dismiss except for Kaiser, which answered, see Kaiser’s
24
Answer, ECF 84; Clacher (a Kaiser consultant), who did not respond; and Brizuela, who was not
25
served, see Unexecuted Summons, ECF 77. Magistrate Judge Grewal, to whom the case then was
26
assigned, heard the motions to dismiss on December 2, 2014. See Minute Entry, ECF 104. He
27
dismissed the following defendants on the record at the hearing: MP Shoreline Associates, Martha
28
Ray, Los Altos Sub Acute, J. Alvarez, Mark Brian, SC Social Service, Robert Brizuela, and
2
1
Patricia Melenudo.1 Id. The docket reflects that those defendants were terminated from the action
2
on December 2, 2014.
Judge Grewal issued a written order granting the motions to dismiss filed by Obama,
3
4
Burwell, SALA, Schroeder, and the State Bar, with leave to amend. See Order Granting Motions
5
to Dismiss and Denying Motions for Removal, Joinder and Vacation and Withdrawal, ECF 105.
6
As noted above, Kaiser had answered the original complaint and Clacher had not responded.
7
Proposed Amendment to Complaint
8
On August 24, 2015, Campbell filed a “Proposed Amendment to Complaint.” See
9
Proposed Amendment to Compl., ECF 111. The case was reassigned to the undersigned judge
shortly thereafter, on September 1, 2015. This Court struck the “Proposed Amendment to
11
United States District Court
Northern District of California
10
Complaint” as defective in two respects. See Order Striking Campbell’s Proposed Amendment to
12
Complaint, ECF 119. First, the Proposed Amendment to Complaint incorporated the original
13
complaint, which violated the Court’s Civil Local Rules. See id. Second, it added defendants not
14
named in the original complaint, which was outside the scope of the leave to amend granted by
15
Judge Grewal. See id. The Court granted Campbell an extension of time to file an amended
16
complaint that conformed to the Court’s Civil Local Rules and Judge Grewal’s prior order. See id.
17
Operative Second Amended Complaint
18
Campbell timely filed the operative Second Amended Complaint (“SAC”) on September
19
24, 2016. See SAC, ECF 126. The SAC names as defendants Obama, Burwell, Kaiser, SALA,
20
Schroeder, and the State Bar. See SAC at 2-3. The SAC does not name Clacher, and the docket
21
reflects that she has been terminated from the action.2
The SAC also requests leave to add the following new or previously dismissed defendants:
22
23
Julian Castro, Secretary of Housing and Urban Development (new); MP Shoreline Associates3
24
1
25
Judge Grewal also dismissed on the record “Martyn Ray,” who does not appear to have been
named in the original complaint.
26
2
27
28
The docket indicates that Clacher was terminated on August 24, 2015, the date that the Proposed
Amendment to Complaint was filed, presumably because Clacher did not appear in the caption or
in the listing of defendants.
3
The SAC actually seeks to add “SP” Shoreline Associates instead of “MP” Shoreline Associates.
3
1
(previously dismissed); Martyn Ray (previously dismissed); Maria Ivanchuk (new); Francisco
2
Aquilar (new); Linda Wiley (new); Lidia Breslavez (new); Notashia Zaydenberg (new);
3
Magistrate Judge Grewal (new); Karen B. Goldberg (new); Guy J. Caputo (new); and Karen B.
4
Goldberg (new). See SAC at 3-4. The Court construes this portion of Campbell’s SAC as a
5
motion for leave to amend his pleading under Federal Rule of Civil Procedure 15(a).
6
Current Motions
7
All defendants remaining in the action have filed motions to dismiss the SAC. One motion
8
has been filed on behalf of Obama and Burwell (ECF 131), a second on behalf of Kaiser (ECF
9
155), a third on behalf of SALA and Schroeder (ECF 130), and a fourth on behalf of the State Bar
10
United States District Court
Northern District of California
11
(ECF 129).
MP Shoreline Associates, a previously dismissed defendant that Campbell now seeks to
12
add, also has filed a motion to dismiss (ECF 145). The Court construes that motion as an
13
opposition to Campbell’s motion for leave to amend.
14
Los Altos Sub Acute and Rehabilitation Center, J. Alvarez, and Mark Brian, also
15
previously dismissed defendants, have filed a motion to dismiss as well (ECF 133). Those
16
defendants were dismissed from the action by Judge Grewal on December 2, 2014, and terminated
17
from the docket on that date, and Campbell has neither named them as defendants in the SAC nor
18
sought leave to add them back into the action. See SAC at 2-4. Accordingly, the motion to
19
dismiss filed by Los Altos, Alvarez, and Brian is terminated as MOOT.
20
In addition to the motion for leave to amend presented in the body of Campbell’s SAC
21
(ECF 126), Campbell has filed the following motions and requests: Notice of Advisement (ECF
22
140); Notice of Advisement and Discovery Request (ECF 165); Rebuttal to Los Altos Sub Acute
23
and Application for Imposition of Sanctions (ECF 176); Amended Notice of Motions:
24
Memorandum of Points and Authorities in Support of Plaintiff’s Amended Complaint (ECF 180);
25
Discovery Request (ECF 193); and Discovery Request (ECF 194).
26
27
28
The Court presumes that to be a typographical error.
4
II.
1
MOTIONS TO DISMISS FILED BY ALL REMAINING DEFENDANTS
The Defendants remaining in this case – Obama, Burwell, Kaiser, SALA, and Schroeder –
2
seek dismissal of the claims against them under Federal Rule of Civil Procedure 12(b)(6).4 The
4
SAC alleges subject matter jurisdiction based upon federal question. See SAC at 4. The Court
5
therefore begins its analysis with Campbell’s federal claims, because absent viable federal claims
6
the Court declines to exercise supplemental jurisdiction over Campbell’s state law claims. See 28
7
U.S.C. § 1367(c); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (“The Supreme
8
Court has stated, and we have often repeated, that ‘in the usual case in which all federal-law
9
claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise
10
jurisdiction over the remaining state-law claims.’”) (quoting Carnegie–Mellon Univ. v. Cohill, 484
11
United States District Court
Northern District of California
3
U.S. 343, 350 n. 7 (1988)) (ellipses in original). As discussed below, the Court concludes that
12
Campbell has not alleged a viable federal claim. Thus the Court declines to exercise supplemental
13
jurisdiction over Campbell’s state law claims.
14
A.
Legal Standard
15
“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
16
claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation
17
Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d
18
729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts
19
as true all well-pled factual allegations and construes them in the light most favorable to the
20
plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the
21
Court need not “accept as true allegations that contradict matters properly subject to judicial
22
notice” or “allegations that are merely conclusory, unwarranted deductions of fact, or
23
unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)
24
(internal quotation marks and citations omitted). While a complaint need not contain detailed
25
26
27
28
4
While all Defendants move to dismiss under Rule 12(b)(6), some Defendants also move under
Rule 12(b)(1) (lack of subject matter jurisdiction), Rule 12(e) (more definite statement), or Rule
12(f) (motion to strike). The Court need not address these additional grounds for relief in light of
its conclusion that all claims are subject to dismissal without leave to amend under Rule 12(b)(6)
for failure to state a claims upon which relief may be granted.
5
1
factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to
2
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
3
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the
4
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
B.
5
President Obama and Secretary Burwell (ECF 131)
1.
6
Secretary Burwell
Campbell asserts federal claims against Sylvia Burwell, Secretary of Health and Human
7
8
Services, based upon her final decision denying his Medicare claim for continued SNF care
9
beyond the 100 days permitted by the Medicare Act. The Medicare Act, which sets forth a federal
health insurance program for the elderly and disabled, provides for limited coverage of SNF care
11
United States District Court
Northern District of California
10
following a qualifying hospital inpatient stay. See 42 U.S.C. § 1395d(a)(2)(A). As relevant here,
12
Medicare will cover up to 100 days of SNF care during a “spell of illness.” Id.
13
Campbell was a member of Kaiser Permanente’s Senior Advantage Medicare Plan.
14
Decision of Medicare Appeals Council, Exh. 1 to De Chazal Decl., ECF 131-1.5 He had a hospital
15
inpatient stay in March 2012 relating to pain and swelling in his left foot. Id. He then was
16
transferred to a skilled nursing facility. Id. Some months later, he was informed that he had
17
exhausted the 100 days of SNF care provided by Medicare in June 2012. Id. Following
18
Campbell’s administrative appeal of that decision, an Administrative Law Judge (“ALJ”) issued
19
an unfavorable decision based upon a determination that Campbell had received the statutorily
20
required 100 days of SNF care. Id. The ALJ’s decision was affirmed by the Medicare Appeals
21
Council, making the ALJ’s decision the final decision of the Secretary of Health and Human
22
Services. Id.
23
24
25
26
27
28
5
The Court takes judicial notice of the Decision of the Medicare Appeals Council. See United
States v. 14.02 Acres, 547 F.3d 943, 955 (9th Cir. 2008) (judicial notice may be taken of public
records, including records of administrative bodies); Papai v. Harbor Tug and Barge Co., 67 F.3d
203, 207 n.5 (9th Cir. 1995), rev’d on other grounds, 520 U.S. 548 (1997) (taking judicial notice
of a decision and order of an Administrative Law Judge). The Decision of the Medicare Appeals
Council also may be considered under the incorporation by reference doctrine, as Campbell refers
to it expressly in his SAC. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)
(incorporation by reference doctrine permits a court to consider documents referenced in but not
physically attached to the complaint).
6
1
Campbell does not challenge the determination that he received the statutory maximum of
2
100 days of SNF care. Instead, he asserts that the 100-day limit, irrespective of medical condition,
3
violates the Eighth and Thirteenth Amendments to the United States Constitution. SAC at 2, 9-10.
4
The Eighth Amendment provides that: “Excessive bail shall not be required, nor excessive fines
5
imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Campbell
6
appears to be invoking the “cruel and unusual punishments” clause. However, the Eighth
7
Amendment applies only to punishments imposed after “a formal adjudication of guilt in
8
accordance with due process of law.” In re Grand Jury Proceedings, 33 F.3d 1060, 1062 (9th Cir.
9
1994). The Eighth Amendment simply is not applicable in the circumstances at issue here. The
Thirteenth Amendment prohibits “slavery” and “involuntary servitude.” Campbell does not allege
11
United States District Court
Northern District of California
10
how the Thirteenth Amendment relates to the 100-day limitation at issue in this case.
12
The SAC appears to allege an alternative claim against Burwell which is characterized as
13
“a right to die under the laws and Constitution of United States.” SAC at 2, 18. Campbell has not
14
identified, and the Court has not discovered, any authority giving rise to a “right to die” claim
15
under federal law. In those states permitting medically assisted suicide, difficult decisions
16
regarding end of life options are made by the patient, his family, and his physicians. The federal
17
government has no role in such decisions.
18
19
Burwell’s motion to dismiss is GRANTED as to all claims.
2.
President Obama
20
Campbell sues President Obama on the basis of his “direct supervision and control” over
21
the Department of Housing and Urban Development (“HUD”). SAC at 8. Campbell alleges that
22
Obama and HUD have “aided, abetted and encouraged” Campbell’s landlord and others to
23
discriminate against Campbell and to deprive him of federally protected rights. Id. Campbell may
24
also be suing Obama with respect to the Medicare 100-day limit discussed above. SAC at 10.
25
Campbell has not alleged any specific conduct on the part of President Obama and thus has failed
26
to state a claim against him. Moreover, Campbell sues Obama solely for conduct taken in his
27
official capacity as President. To the extent that Campbell seeks money damages, Obama “is
28
entitled to absolute immunity from damages liability predicated on his official acts.” Nixon v.
7
1
Fitzgerald, 457 U.S. 731, 749 (1982).
2
Obama’s motion to dismiss is GRANTED as to all claims.
3
C.
4
The bases for Campbell’s claims against Kaiser are unclear. The only potential federal
Kaiser (ECF 155)
5
claim asserted against Kaiser is the constitutional challenge to the Medicare 100-day limit on SNF
6
care discussed above. To the extent that claim is asserted against Kaiser, it fails for the reasons
7
discussed above.6
Campbell also asserts a state law claim of elder abuse against Kaiser under California’s
8
9
Elder Abuse Act, California Welfare & Institutions Code § 15600 et seq. The Court declines to
exercise supplemental jurisdiction over that claim because, as discussed herein, all of Campbell’s
11
United States District Court
Northern District of California
10
federal claims are subject to dismissal with prejudice. The Court notes, however, that Campbell
12
does not allege any facts in support of his elder abuse claim other than Kaiser’s denial of SNF care
13
beyond the 100-day limit. Kaiser’s compliance with the Medicare Act is insufficient, standing
14
alone, to state a claim of elder abuse. The Court also observes that Kaiser’s statute of limitations
15
argument appears to be well-taken. Campbell alleges that he received notice of the coverage
16
denial “effective 6/25/12,” SAC at 12, and he did not file suit until more than two years later on
17
July 7, 2014. See Benun v. Sup. Ct., 123 Cal. App. 4th 113, 125-26 (2004) (applying two-year
18
statute of limitations set forth in California Code of Civil Procedure § 335.1 to an Elder Abuse Act
19
claim based on an allegation that health care providers recklessly or intentionally neglected to
20
provide adequate care). Thus even if the Court were to exercise supplemental jurisdiction over the
21
elder abuse claim, it would grant Kaiser’s motion to dismiss for failure to state a claim upon which
22
relief may be granted.
23
Kaiser’s motion to dismiss is GRANTED as to all claims.
24
D.
25
Campbell sues SALA and its supervising attorney, Michele Schroeder, because SALA
SALA and Schroeder (ECF 130)
26
27
28
6
Additionally, it does not appear from the face of the SAC or matters judicially noticeable that
Kaiser is a state or federal actor that would be subject to suit under 42 U.S.C. § 1983 or Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
8
1
declined to represent him in administrative appeals regarding Medicare and Medi-Cal benefits.
2
Campbell attaches to the SAC a letter from SALA dated June 23, 2014, explaining SALA’s
3
reasons for declining representation, including SALA’s lack of resources to mount a constitutional
4
challenge to Medicare’s 100-day limit on SNF care and a potential conflict of interest. Campbell
5
alleges no other facts against SALA and Schroeder. As Judge Grewal observed in his prior order
6
dismissing the claims against SALA and Schroeder with leave to amend, these facts are
7
insufficient to suggest that the denial of representation was for an improper purpose.
8
The motion to dismiss brought by SALA and Schroeder is GRANTED as to all claims.
9
E.
State Bar (ECF 129)
Campbell sues the State Bar of California, asserting that it “tends to encourage & promote
10
United States District Court
Northern District of California
11
dishonesty including untrustworthiness among members,” and that “generally said attorney
12
members are dishonest & untrustworthy, and thereby unqualified to practice law.” SAC at 16. As
13
examples of the unfitness of California attorneys, Campbell states that the court-appointed
14
attorneys who represented him in an armed robbery prosecution were rewarded by appointment as
15
state court judges.7 Id. Campbell also alleges that the State Bar declared Karen B. Goldberg, a
16
proposed new defendant in this action, to be an attorney even though she did not attend or
17
graduate law school. Id.
The State Bar moves to dismiss on the ground that Campbell’s claims are barred by the
18
19
Eleventh Amendment. “The Eleventh Amendment bars suits which seek either damages or
20
injunctive relief against a state, an ‘arm of the state,’ its instrumentalities, or its agencies.”
21
Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (citation omitted). A state may waive its
22
immunity and, in some circumstances, Congress may abrogate it by legislation. Virginia Office
23
for Protection and Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011). However, absent such
24
waiver or legislation, the state is absolutely immune from suit in federal court. Id.
The State Bar of California is a state agency for Eleventh Amendment purposes. See Hirsh
25
26
27
28
7
While not clear from Campbell’s allegations, the armed robbery prosecution to which he refers
appears to have been prosecuted approximately forty years ago. See People v. Superior Court
(Campbell), 51 Cal. App. 3d 459 (1975).
9
1
v. Justices of the Sup. Ct. of the State of Cal., 67 F.3d 708, 715 (9th Cir. 1995); Delacruz v. State
2
Bar of Cal., 5:14-cv-05336-EJD, 2015 WL 5697365, at *3 (N.D. Cal. Sept. 29, 2015). Thus it is
3
immune from suit for money damages or injunctive relief. Judge Grewal previously dismissed
4
Campbell’s claims against the State Bar on Eleventh Amendment grounds.
The motion to dismiss brought by the State Bar is GRANTED as to all claims.
5
6
7
III.
LEAVE TO AMEND
Having determined that all of Campbell’s existing claims are subject to dismissal, the
8
Court must decide whether to grant leave to amend those claims. Additionally, Campbell seeks
9
leave to amend his pleading to add new and previously dismissed defendants to the action.
10
In deciding whether to grant leave to amend following dismissal, or pursuant to Federal
United States District Court
Northern District of California
11
Rule of Civil Procedure 15(a), the Court must consider the factors set forth by the Supreme Court
12
in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the Ninth Circuit in Eminence
13
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district court ordinarily must grant
14
leave to amend unless one or more of the Foman factors is present: (1) undue delay, (2) bad faith
15
or dilatory motive, (3) repeated failure to cure deficiencies by amendment, (4) undue prejudice to
16
the opposing party, and (5) futility of amendment. Eminence Capital, 316 F.3d at 1052. “[I]t is
17
the consideration of prejudice to the opposing party that carries the greatest weight.” Id. However
18
a strong showing with respect to one of the other factors may warrant denial of leave to amend.
19
Id. Moreover, the proposed addition of new claims unrelated to the claims and defenses in the
20
original complaint may be grounds for denial of leave to amend. See, e.g., Morongo Band of
21
Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (denial of leave to amend not abuse
22
of discretion where proposed new claims would have “greatly altered the nature of the litigation”
23
and required defendants to undertake “an entirely new course of defense”); Jackson v. Bank of
24
Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (affirming denial of leave to amend where additional
25
claims “advance different legal theories and require proof of different facts”).
26
A.
Dismissed Claims
27
Turning first to the Campbell’s existing claims, which are subject to dismissal for the
28
reasons discussed above, the Court concludes that leave to amend must be denied based upon
10
1
Campbell’s failure to cure the defects pointed out in Judge Grewal’s prior order as well as the
2
futility of allowing further amendment. Judge Grewal’s prior order dismissing Campbell’s
3
original complaint highlighted several pleading defects which Campbell failed to address in his
4
SAC. Campbell’s briefing gives no indication that he could amend to state a viable federal claim
5
even if given further leave to amend. Campbell’s claims again Secretary Burwell are futile
6
because the Eighth and Thirteenth Amendments simply do not provide any basis for challenging
7
Medicare’s 100-day rule. President Obama and the State Bar are immune from suit. Campbell
8
has failed to allege facts sufficient to state a claim against Kaiser, SALA, or Schroeder, and his
9
briefing does not suggest that he could do so.
10
United States District Court
Northern District of California
11
12
Leave to amend therefore is DENIED as to all dismissed claims.
B.
Campbell’s Motion for Leave to Amend to Add Defendants (ECF 126)
Campbell seeks leave to amend to add new and previously dismissed defendants to the
13
action. SAC at 3-4. Specifically, Campbell seeks leave to add: Julian Castro, Secretary of
14
Housing and Urban Development (new); MP Shoreline Associates (previously dismissed); Martyn
15
Ray (previously dismissed); Maria Ivanchuk (new); Francisco Aquilar (new); Linda Wiley (new);
16
Lidia Breslavez (new); Notashia Zaydenberg (new); Magistrate Judge Grewal (new); Karen B.
17
Goldberg (new); Guy J. Caputo (new); and Karen B. Goldberg (new). Id.
18
19
20
The SAC contains no allegations against Secretary Castro. Thus amendment is not
warranted as to him.
MP Shoreline was dismissed from the action by Judge Grewal without leave to amend.
21
Campbell did not seek reconsideration of that ruling. The SAC contains conclusory allegations
22
that MP Shoreline, which appears to be Campbell’s landlord, has engaged in ongoing elder abuse
23
and disability discrimination. See SAC at 14-15. The SAC makes reference to an “Eviction
24
Notice” issued by MP Shoreline, but then cites to a “Tenant Misconduct Notice,” which is an
25
email that Plaintiff wrote to the manager of his apartment complex complaining that another tenant
26
had left a shopping cart and boxes in the hallway. The Tenant Misconduct Notice is attached to
27
the SAC. No “Eviction Notice” is attached. The SAC suggests that MP Shoreline conspired with
28
several of its employees, including Martyn Ray, Maria Ivanchuk, and Francisco Aquilar, and
11
1
several of its tenants, including Linda Wiley, Lidia Breslavez, and Notashia Zaydenberg.
2
However, the SAC and attached exhibits contain no specific facts regarding any of these
3
individuals except for Linda Wiley, the tenant who allegedly left the shopping cart and boxes in
4
the hallway. These allegations are insufficient to make out a plausible claim of disability
5
discrimination or any other wrongful conduct that could rise to the level of a federal claim.
6
With respect to Judge Grewal, the SAC alleges that while presiding over this lawsuit Judge
7
Grewal concealed his membership in the California State Bar and conspired with other defendants
8
to commit elder abuse and disability discrimination. SAC at 18. “Judges and those performing
9
judge-like functions are absolutely immune from damage liability for acts performed in their
official capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). As a result,
11
United States District Court
Northern District of California
10
Campbell could not state a viable claim against Judge Grewal for his conduct in this case.8
12
Finally, with respect to two separate individuals named Karen B. Goldberg and an
13
individual named Guy J. Caputo, the SAC contains no allegations that would give rise to liability.
14
The SAC contains no allegations whatsoever regarding Guy J. Caputo. The SAC likewise
15
contains no allegations regarding Karen B. Goldberg, allegedly a resident of San Jose, California,
16
although a letter attached to Campbell’s briefing indicates that Campbell was Ms. Goldberg’s
17
“right-hand assistant at St. Joseph Bingo parlor,” and that Ms. Goldberg is dishonest and
18
untrustworthy. See Letter to Judge Weinstein, ECF 152. The SAC alleges that a different Karen
19
B. Goldberg, allegedly a resident of Los Angeles, California, has nothing to do with this case and
20
is a complete stranger to Campbell. SAC at 5. These allegations do not establish the existence of
21
a viable federal claim against Caputo or either of the Karen B. Goldbergs.
22
Because it does not appear that Campbell could allege viable federal claims against any of
23
the proposed additional defendants, and because any such claims would be wholly unrelated to the
24
claims currently alleged in the FAC, Campbell’s motion for leave to amend is DENIED.
25
26
27
28
8
Judicial immunity does not extend to actions for prospective injunctive relief. Ashelman, 793
F.2d at 1075. However, Campbell does not and could not assert a claim for prospective injunctive
relief given that Judge Grewal recused himself from this case and has no further involvement in it.
12
1
IV.
CAMPBELL’S OTHER MOTIONS/REQUESTS (ECF 140, 165, 176, 180, 193, 194)
2
In addition to the request for leave to amend to add defendants, Campbell has filed the
3
following motions and requests: Notice of Advisement (ECF 140); Notice of Advisement and
4
Discovery Request (ECF 165); Rebuttal to Los Altos Sub Acute and Application for Imposition of
5
Sanctions (ECF 176); Amended Notice of Motions: Memorandum of Points and Authorities in
6
Support of Plaintiff’s Amended Complaint (ECF 180); Discovery Request (ECF 193); and
7
Discovery Request (ECF 194).
8
A.
Notice of Advisement (ECF 140)
9
Campbell has submitted a Notice of Advisement (Set I) (ECF 140), which contains
information regarding an unlawful detainer action filed by MP Shoreline against an individual
11
United States District Court
Northern District of California
10
named Nina Sidorova. The Notice of Advisement does not request any action by the Court.
12
B.
Notice of Advisement and Discovery Request (ECF 165)
13
Campbell has submitted a Notice of Advisement and Discovery Request (ECF 165),
14
seeking discovery from the California State Bar and one of the Karen B. Goldbergs that Campbell
15
seeks to add as a defendant in this action. As an initial matter, it is inappropriate for Campbell to
16
seek discovery by making a request to the Court. The discovery process is governed by Federal
17
Rules of Civil Procedure 26 through 37, which explain how a party may seek discovery during
18
civil litigation. Moreover, with respect to the particular discovery requested by Campbell, it is
19
clear that there is no basis for the discovery because Campbell’s claims against the State Bar are
20
dismissed without leave to amend and Campbell’s request to add Karen B. Goldberg as a
21
defendant is denied.
22
Campbell’s Discovery Request is DENIED.
23
C.
24
Campbell has submitted a document titled Rebuttal to Los Altos Sub Acute and
Rebuttal to Los Altos Sub Acute/Application for Sanctions (ECF 176)
25
Application for Imposition of Sanctions (ECF 176). Campbell complains that he was not served
26
with the Motion to Dismiss filed by Los Altos Sub Acute, but only with the proposed order on that
27
motion. Campbell requests sanctions against Los Altos Sub Acute. In response, Los Altos Sub
28
Acute points to the Certificate of Service filed on October 13, 2015, stating that Campbell was
13
1
served with the Motion to Dismiss. See Certificate of Service, ECF 137. Both sides devote
2
extensive briefing to the question of whether and when Campbell was served with Los Altos Sub
3
Acute’s Motion to Dismiss and the briefing thereon.
4
Campbell requests sanctions under Federal Rule of Civil Procedure 11. Rule 11 provides
5
for sanctions when an attorney or pro se party makes a representation to the Court for an improper
6
purpose or without reasonable basis. See Fed. R. Civ. P. 11(b), (c). A motion for sanctions under
7
Rule 11 must be served upon the opposing party at least twenty-one days before the sanctions
8
motion is filed. Fed. R. Civ. P. 11(c)(2). The sanctions motion may not be filed if the contested
9
paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within twentyone days after service. Id. It does not appear from the record that Campbell complied with the
11
United States District Court
Northern District of California
10
Rule 11 notice provision. “Failure to provide the required notice precludes an award of Rule 11
12
sanctions.” Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 826 (9th Cir. 2009).
13
While Campbell’s motion for sanctions references only Rule 11, his Rebuttal to Los Altos
14
Sub Acute Response (ECF 187) requests sanctions under 28 U.S.C. § 1927. Section 1927 grants
15
courts authority to impose sanctions on an attorney who unreasonably and vexatiously multiplies
16
the proceedings. Campbell’s citation to a new statutory basis for his sanctions request in his
17
Rebuttal is inappropriate and will not be considered by the Court.
18
Even if the Court were to consider Campbell’s sanctions request on the merits, that request
19
would be denied. Campbell has not made an adequate showing that Defendants did not serve him
20
with the Motion to Dismiss. While Campbell claims that he did not receive the Motion to
21
Dismiss, Defendants have submitted a Certificate of Service stating that the Motion to Dismiss
22
was mailed to him. Based upon this record, the Court cannot make a factual finding that
23
Defendants engaged in any misconduct.
24
Campbell’s motion for sanction is DENIED.
25
D.
26
Campbell has submitted an Amended Notice of Motions: Memorandum of Points and
Amended Notice of Motions (ECF 180)
27
Authorities in Support of Plaintiff’s Amended Complaint (ECF 180). That document contains a
28
request for disqualification, which this Court previously denied on January 21, 2016. See ECF
14
1
198. The document does not request other relief, but rather offers support for Campbell’s SAC.
2
E.
Discovery Requests (ECF 193, 194)
3
Finally, Campbell has submitted two Discovery Requests, requesting “Admission of Facts
4
and Genuineness of Documents” (ECF 193, 194). It is inappropriate for Campbell to seek
5
discovery by making a request to the Court. The discovery process is governed by Federal Rules
6
of Civil Procedure 26 through 37, which explain how a party may seek discovery during civil
7
litigation.
Campbell’s Discovery Requests are DENIED.
8
9
V.
ORDER
It is HEREBY ORDERED that:
11
United States District Court
Northern District of California
10
(1)
(ECF 131) is GRANTED WITHOUT LEAVE TO AMEND;
12
13
(2)
(3)
(4)
(5)
The motion to dismiss brought by MP Shoreline (ECF 145) is construed as
opposition to Campbell’s motion for leave to amend;
20
21
The motion to dismiss brought by the State Bar of California (ECF 129) is
GRANTED WITHOUT LEAVE TO AMEND;
18
19
The motion to dismiss brought by SALA and Schroeder (ECF 130) is GRANTED
WITHOUT LEAVE TO AMEND;
16
17
The motion to dismiss brought by Kaiser (ECF 155) is GRANTED WITHOUT
LEAVE TO AMEND;
14
15
The motion to dismiss brought by Secretary Burwell and President Obama
(6)
The motion to dismiss brought by Los Altos Sub Acute and Rehabilitation Center,
J. Alvarez, and Mark Brian is terminated as MOOT;
22
23
(7)
Campbell’s motion for leave to amend his pleading (ECF 126) is DENIED;
24
(8)
Campbell’s Notice of Advisement (ECF 140) does not require action by the Court;
25
(9)
Campbell’s Notice of Advisement and Discovery Request (ECF 165) is DENIED;
26
(10)
Campbell’s Rebuttal to Los Altos Sub Acute and Application for Imposition of
Sanctions (ECF 176) is DENIED;
27
28
(11)
Campbell’s Amended Notice of Motions (ECF 180) does not require action by the
15
Court;
1
2
(12)
Campbell’s Discovery Requests (ECF 193, 194) are DENIED;
3
(13)
All of Campbell’s federal claims are DISMISSED WITH PREJUDICE on the
merits;
4
5
(14)
The Court declines to exercise supplemental jurisdiction over Campbell’s state law
6
claims. Those claims are DISMISSED WITH PREJUDICE from this action on
7
that basis. This ruling is without prejudice to Campbell’s assertion of state law
8
claims in state court; and
9
(15)
The Clerk of the Court shall enter judgment and close the file.
10
United States District Court
Northern District of California
11
12
13
Dated: March 18, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?