Allison v. American Dental Association et al

Filing 48

ORDER ON REPORT AND RECOMMENDATIONS Defendant's Motion to Dismiss (Dkts. 34 and 35 ) are GRANTED and this case is DISMISSED IN ITS ENTIRETY. Plaintiff's Motion to Submit Federal Trade Commission Decision (Dkt. 41 ) isDENIED AS MOOT. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JACKLIN ALLISON, et al
Case No. 2:12-CV-00160-EJL-CWD
Plaintiffs,
ORDER ON REPORT AND
RECOMMENDATION

v.
THE AMERICAN DENTAL
ASSOCIATION, et al
Defendants.

On December 11, 2012, Chief United States Magistrate Judge Candy W. Dale
issued a Report and Recommendation in this matter. (Dkt. 43.) Pursuant to 28 U.S.C.
§ 636(b)(1), the parties had fourteen days in which to file written objections to the Report
and Recommendation. Plaintiff filed a pleading entitled “Motion to Submit Plaintiff’s
Response to Defendant’s Report and Recommendation” on December 26, 2012. (Dkt.
44). Judge Dale determined Plaintiff’s Motion to be Moot as it was really an objection
that could be addressed by the District Court. (Dkt. 45.) The matter is now ripe for the
Court’s consideration.

ORDER ON REPORT AND RECOMMENDATION - 1

DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge. Where
the parties object to a report and recommendation, this Court shall make a de novo
determination of those portions of the report which objection is made. Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. § 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
ORDER ON REPORT AND RECOMMENDATION - 2

Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)). In this case, the objections were filed so the Court is required to conduct a de
novo determination of the Report and Recommendation.
BACKGROUND
The Court adopts Judge Dale’s factual background:
On March 29, 2012, Plaintiffs filed a complaint against the above named
defendants alleging various constitutional violations related to Plaintiffs’ practice of
denturity. (Dkt. 1.) Plaintiff Jacklin Allison is the only named plaintiff who signed the
complaint, although a signature page was submitted later, on September 6, 2012. (Dkt. 1,
17.) The Complaint appears to allege that all named defendants have “defraud[ed]
plaintiff’s [sic] of their Rights to labor at their chosen occupation” and have monopolized
the provision of dentures directly to the public by the enactment of state statutes. The
complaint does not specifically identify any particular state statute, and appears to be
directed at legislation in all fifty states. Plaintiffs contend that the “dental practice acts,”
without specifically identifying any particular act, are unconstitutional because they
prohibit anyone except a licensed dentist from providing denture services to the public.
Although Plaintiffs named the American Dental Association, “all” state dental
associations, and their “members” in generic terms, only the American Dental
Association received notice of this lawsuit. A Summons was returned executed on June
29, 2012. The Proof of Service indicated that the summons was served by Billy Nash on
June 4, 2012, by leaving the summons with Madeline Gangnes at the American Dental
Association’s office at 211 East Chicago Ave., in Chicago, Illinois.
The affidavit of Gangnes filed in support of the Association’s motion to dismiss
contains a true and correct copy of the packet left with the Association receptionist on
June 7, 2012. Gangnes is currently employed by the Association as a coordinator in the
legal division. The pleading left with the Association is slightly different than the form
filed with the Court. For instance, the pleading left with the Association contains an email address regarding “DouglasK” from “[e-mail],” which is not contained in
the caption filed with this Court. Further, the Complaint and Summons left with the
Association were unsigned.

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The Association’s motion seeks dismissal of Plaintiffs’ complaint on four
grounds. First, the Association alleges lack of effective service under Fed. R. Civ. P.
12(b)(5). Second, the Association contends that the Plaintiffs’ claims do not meet the
pleading standards under Rule 8(a) and Rule 10. Third, the Association asserts that the
complaint fails to state a claim under Rule 12(b)(6). And finally, the Association cites
several cases, five in all, wherein identical claims Plaintiffs brought against the
Association have been dismissed in other jurisdictions.1 The Association therefore
argues that principles of res judicata bar Plaintiff’s claims, and attach the various
decisions considering similar matters. The Association contends that Plaintiffs should
not be given leave to amend.
Plaintiff Jacklin Allison filed a response on October 24, 2012, which did not
directly address the Association’s arguments. Rather, Allison contends that the
Association’s arguments are “nothing but a bald faced lie in order to avoid allowing
this case to proceed to a trial by a jury of our peers.
ANALYSIS
Because Plaintiff Allison (the only plaintiff who signed the Complaint) is appearing
pro se, this Court will liberally construe the pleadings. Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir.1987) (“The Supreme Court has instructed the federal courts to liberally
construe the ‘inartful pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam)). Even construing Plaintiffs’ Complaint liberally, the Court
agrees with Judge Dale that the Complaint is “verbose, convoluted, and extremely difficulty
to comprehend.” Report and Recommendation, p. 8. Regardless, pro se litigants are held
to same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987).

1

The Court may take judicial notice of matters of public record filed in other district
courts, including judicial decisions.

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Plaintiff Jacklin Allison generally objects to the alleged actions of Defendant to use
their financial resources to deprive her and Keith Allison of their constitutional rights.
Specifically, Plaintiff Jacklin Allison claims Defendants illegally incarcerated Keith Allison
which is an example of the violation of their civil rights. However, this allegation is without
recourse as the named Defendants are not governmental actors with the authority to
incarcerate individuals. Congress has created a cause of action against private individuals
who, while acting under color of law, violate the constitutional rights of private citizens.
Section 1983 provides in pertinent part:

Every person who, under color of any statute, […] subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivations of any rights, privileges or immunities secured by the
Constitution and laws, shall be liable to the party injured.
Id. In order for a plaintiff to prevail on a § 1983 claim they must show that (1) the actor that
deprived them of their rights acted under color of law and (2) the action actually deprived them
of a constitutional right. The named Defendants are not alleged to have been acting under
color of law which means state action, not action by a non-governmental organization the
American Dental Association.
Moreover, the Court finds the Complaint does not meet the requirements of Fed. R. Civ.
P. 8(a)(2). The lack of specificity in the Complaint is fatal. Further, Plaintiffs have failed to
allege a violation of their constitutional rights since the Idaho Court of Appeals has determined
as a matter of law that the regulation of the practice of denturity is constitutional. Board of
Dentistry ex rel. State v. Clark, 565 P.2d 148, 153 (Idaho Ct. App. 1982). Therefore, the

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Complaint does not set forth a claim that is facially plausible. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). Mere conclusory statements by Plaintiff are insufficient establish the
elements for a constitutional challenge to Idaho’s regulation of the practice of denturity.
Ashcroft v. Iqbal, 556 U.S. 662 (2009). Therefore, the Complaint must be dismissed with
prejudice.
The Court also agrees with Judge Dale that dismissal without leave to amend is proper
since it is beyond doubt the Complaint could not be saved by any amendment. Livid Holdings
Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940,946 (9th Cir. 2005).
Because the Court finds the Report and Recommendation of Judge Dale to be well
founded in law, the Court hereby accepts in their entirety, and adopts as its own, the findings
made by Judge Dale. The objections of Plaintiffs are denied. Acting on the recommendation of
Judge Dale, and this Court being fully advised in the premises,

ORDER
IT IS HEREBY ORDERED:
1. Defendant’s Motion to Dismiss (Dkts. 34 and 35) are GRANTED and this case is
DISMISSED IN ITS ENTIRETY.

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2. Plaintiff’s Motion to Submit Federal Trade Commission Decision (Dkt. 41) is
DENIED AS MOOT.

DATED: April 4, 2013

Honorable Edward J. Lodge
U. S. District Judge

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