Orlosky v. Merrill et al

Filing 4

ORDER Granting 3 Motion to Proceed in Forma Pauperis; Dismissing Complaint for Failure to State a Claim; and Denying 2 Request for Appointment of Counsel without Prejudice. Plaintiff's Complaint is dismissed with leave to amend. Plaintiff will have 45 days from the date of this Order to file an amended complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Barry Ted Moskowitz on 9/6/2017. (All non-registered users served via U.S. Mail Service)(mxn)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Joseph Orlosky, Plaintiff, 12 13 v. 14 William E. Merill, Transformed Service Inc., DOES 1 through 50, 15 Defendants. 16 17 Case No.: 3:17-cv-01701-BTMWVG ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM; AND DENYING REQUEST FOR APPOINTMENT OF COUNSEL 18 19 On August 23, 2017, Plaintiff filed a Complaint in addition to a Motion to 20 Proceed In Forma Pauperis (“IFP Motion”) and a Request for Appointment of 21 Counsel. For the reasons discussed below, the IFP Motion is granted, the 22 Complaint is dismissed with leave to amend, and the Request for Appointment of 23 Counsel is denied without prejudice. 24 25 26 Discussion I. Motion to Proceed IFP Upon review of Plaintiff’s affidavit in support of his IFP Motion, the Court 27 finds that Plaintiff has made a sufficient showing of inability to pay the filing fees 28 required to prosecute this action. Accordingly, Plaintiff’s IFP Motion is 1 3:17-cv-01701-BTM-WVG 1 2 3 GRANTED. II. Failure to State a Claim Although the Court will allow Plaintiff to proceed IFP, Plaintiff’s Complaint 4 must be dismissed for failure to state a claim. The Court is under a continuing 5 duty to dismiss an IFP case whenever the Court determines that the action “fails 6 to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 Here, the Complaint must be dismissed because it does not plead facts that 8 demonstrate the existence of an element of a violation of the Racketeer 9 Influenced and Corrupt Organizations Act (“RICO”): a pattern of racketeering 10 11 activity. Plaintiff’s Complaint alleges that Defendants violated § 1962 of RICO when 12 they “engaged in a racketeering conspiracy to defraud and extort funds from 13 plaintiff by engaging in practices and dishonest conduct designed to entrap 14 plaintiff, threaten the property of the plaintiff and threaten litigation in Kansas if 15 plaintiff did not pay Defendant immediately as demanded.” Specifically, Plaintiff 16 alleges that upon receiving Plaintiff’s property for interstate shipping, Defendants’ 17 altered and misrepresented the condition of the property, demanded fraudulent 18 fees related to shipping the property, and ultimately stole the property. Because 19 Plaintiff is proceeding pro se, his pleadings are “held to less rigorous standards 20 than those drafted by attorneys.” Cripps v. Life Ins. Co. of North America, 980 21 F.2d 1261, 1268 (9th Cir. 1992). 22 Even so, Plaintiff has not yet succeeded in stating a claim on which relief 23 can be granted because his Complaint does not allege a pattern of racketeering 24 activity. To state a claim under § 1962 of RICO, a plaintiff must allege the “(1) 25 conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity 26 (known as ‘predicate acts') (5) causing injury to plaintiff's ‘business or property.’” 27 Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 361 (9th 28 Cir. 2005). At a minimum, a “pattern” requires that the predicate acts be “related” 2 3:17-cv-01701-BTM-WVG 1 and “continuous.” Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir. 1995). To 2 establish that predicate acts are “continuous,” a plaintiff may plead “closed-ended 3 continuity” or “open-ended continuity.” Id. at 1526. “Closed-ended continuity 4 refers to a closed period of repeated conduct. It is established by showing that 5 the predicate acts occurred over a substantial period of time. If closed-ended 6 continuity cannot be established, plaintiffs may plead open-ended continuity. 7 Open-ended continuity refers to past conduct that by its nature indicates a threat 8 of future criminal conduct. It is established by showing either that the predicate 9 acts specifically threaten repetition or that they were an ongoing entity's regular 10 way of doing business.” Id. 11 Plaintiff’s Complaint alleges that Defendants’ predicate acts occurred 12 between August 11, 2017 and August 13, 2017. A period of three days does not 13 constitute “a substantial period of time,” as required by closed-ended 14 continuity.1+ Plaintiff’s Complaint also fails to establish open-ended continuity. As 15 currently pleaded, the Complaint only alleges a single isolated activity on the part 16 of Defendants. It does not allege that Defendants’ predicate acts threaten 17 repetition or that the predicate acts have become Defendants’ regular way of 18 doing business. Accordingly, Plaintiff’s Complaint will be dismissed with leave to amend. 19 20 Plaintiff will have 45 days from the date of this order to file an amended 21 complaint. 22 III. 23 Request for Appointment of Counsel Plaintiff has filed a request for appointment of counsel. 24 25 26 27 28 The 9th Circuit has observed that while there is no “hard and fast, bright line, one-year” rule for the continuity requirement, it will generally not be “satisfied by a pattern of activity lasting less than a year” and “a pattern of activity lasting only a few months does not reflect the long term conduct to which RICO was intended to apply.” See Allwaste, F.3d at 1528. 1 3 3:17-cv-01701-BTM-WVG 1 There is no right to counsel in civil cases, and district courts may appoint 2 counsel only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 3 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an 4 evaluation of both ‘likelihood of success on the merits and the ability of the 5 plaintiff to articulate his claims pro se in light of the complexity of the legal issues 6 involved.’ Neither of these issues is dispositive and both must be viewed 7 together before reaching a decision.” Id. 8 At this point in time, the Court cannot say there is any likelihood of success 9 on the merits. Therefore, the Court DENIES without prejudice Plaintiff’s Request 10 for Appointment of Counsel. 11 CONCLUSION 12 For the reasons discussed above: 13 1) Plaintiff’s Motion to Proceed IFP is GRANTED; 14 2) Plaintiff’s Complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff 15 will have 45 days from the date of this Order to file an amended 16 complaint; and 17 18 3) Plaintiff’s request for appointment of counsel is DENIED without prejudice. 19 20 21 IT IS SO ORDERED: 22 Dated: September 6, 2017 23 24 25 26 27 28 4 3:17-cv-01701-BTM-WVG

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