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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Joseph Orlosky,
Plaintiff,

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v.

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William E. Merill, Transformed
Service Inc., DOES 1 through 50,

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Defendants.

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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

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On August 23, 2017, Plaintiff filed a Complaint in addition to a Motion to

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Proceed In Forma Pauperis (“IFP Motion”) and a Request for Appointment of

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Counsel. For the reasons discussed below, the IFP Motion is granted, the

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Complaint is dismissed with leave to amend, and the Request for Appointment of

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Counsel is denied without prejudice.

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Discussion
I.

Motion to Proceed IFP
Upon review of Plaintiff’s affidavit in support of his IFP Motion, the Court

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finds that Plaintiff has made a sufficient showing of inability to pay the filing fees

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required to prosecute this action. Accordingly, Plaintiff’s IFP Motion is
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GRANTED.
II.

Failure to State a Claim
Although the Court will allow Plaintiff to proceed IFP, Plaintiff’s Complaint

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must be dismissed for failure to state a claim. The Court is under a continuing

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duty to dismiss an IFP case whenever the Court determines that the action “fails

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to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Here, the Complaint must be dismissed because it does not plead facts that

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demonstrate the existence of an element of a violation of the Racketeer

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Influenced and Corrupt Organizations Act (“RICO”): a pattern of racketeering

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activity.
Plaintiff’s Complaint alleges that Defendants violated § 1962 of RICO when

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they “engaged in a racketeering conspiracy to defraud and extort funds from

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plaintiff by engaging in practices and dishonest conduct designed to entrap

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plaintiff, threaten the property of the plaintiff and threaten litigation in Kansas if

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plaintiff did not pay Defendant immediately as demanded.” Specifically, Plaintiff

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alleges that upon receiving Plaintiff’s property for interstate shipping, Defendants’

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altered and misrepresented the condition of the property, demanded fraudulent

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fees related to shipping the property, and ultimately stole the property. Because

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Plaintiff is proceeding pro se, his pleadings are “held to less rigorous standards

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than those drafted by attorneys.” Cripps v. Life Ins. Co. of North America, 980

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F.2d 1261, 1268 (9th Cir. 1992).

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Even so, Plaintiff has not yet succeeded in stating a claim on which relief

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can be granted because his Complaint does not allege a pattern of racketeering

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activity. To state a claim under § 1962 of RICO, a plaintiff must allege the “(1)

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conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity

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(known as ‘predicate acts') (5) causing injury to plaintiff's ‘business or property.’”

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Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 361 (9th

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Cir. 2005). At a minimum, a “pattern” requires that the predicate acts be “related”
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and “continuous.” Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir. 1995). To

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establish that predicate acts are “continuous,” a plaintiff may plead “closed-ended

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continuity” or “open-ended continuity.” Id. at 1526. “Closed-ended continuity

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refers to a closed period of repeated conduct. It is established by showing that

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the predicate acts occurred over a substantial period of time. If closed-ended

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continuity cannot be established, plaintiffs may plead open-ended continuity.

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Open-ended continuity refers to past conduct that by its nature indicates a threat

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of future criminal conduct. It is established by showing either that the predicate

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acts specifically threaten repetition or that they were an ongoing entity's regular

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way of doing business.” Id.

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Plaintiff’s Complaint alleges that Defendants’ predicate acts occurred

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between August 11, 2017 and August 13, 2017. A period of three days does not

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constitute “a substantial period of time,” as required by closed-ended

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continuity.1+ Plaintiff’s Complaint also fails to establish open-ended continuity. As

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currently pleaded, the Complaint only alleges a single isolated activity on the part

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of Defendants. It does not allege that Defendants’ predicate acts threaten

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repetition or that the predicate acts have become Defendants’ regular way of

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doing business.
Accordingly, Plaintiff’s Complaint will be dismissed with leave to amend.

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Plaintiff will have 45 days from the date of this order to file an amended

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complaint.

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III.

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Request for Appointment of Counsel
Plaintiff has filed a request for appointment of counsel.

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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.
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There is no right to counsel in civil cases, and district courts may appoint

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counsel only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an

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evaluation of both ‘likelihood of success on the merits and the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved.’ Neither of these issues is dispositive and both must be viewed

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together before reaching a decision.” Id.

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At this point in time, the Court cannot say there is any likelihood of success

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on the merits. Therefore, the Court DENIES without prejudice Plaintiff’s Request

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for Appointment of Counsel.

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CONCLUSION

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For the reasons discussed above:

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1) Plaintiff’s Motion to Proceed IFP is GRANTED;

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2) Plaintiff’s Complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff

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will have 45 days from the date of this Order to file an amended

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complaint; and

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3) Plaintiff’s request for appointment of counsel is DENIED without
prejudice.

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IT IS SO ORDERED:

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Dated: September 6, 2017

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