Bach v. Ehrler et al

Filing 42

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Defendants Donna and Wayne Dawson's Motion to Dismiss 34 is GRANTED. Plaintiff's Motion 37 is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN N. BACH,
Case No. 4:14-cv-00469-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
PAULA EHRLER, et al.,
Defendants.

INTRODUCTION
Pending before the Court is Defendants Donna Dawson and Wayne Dawson’s
Motion to Dismiss for Failure to State a Claim. (Dkt. 34). For the reasons set forth below,
the Court will grant the motion. Because the Motion to Dismiss is granted, the Court
deems Plaintiff’s Motion for Summary Judgment (Dkt. 37) moot.
BACKGROUND
In November 2014, Plaintiff John N. Bach filed a pro se complaint against several
parties, including Donna Dawson and Wayne Dawson. Apparently, Bach is upset about
the seizure and sheriff’s execution sale of his real property. See Compl., ¶¶ 21-24, Dkt. 1.
Bach alleges Racketeer Influenced and Corrupt Organizations (RICO) violations under
18 U.S.C. § 1961 and Federal Civil Rights Act violations under 42 U.S.C. §§ 1983-86.

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The Court has already dismissed claims against certain Defendants. Donna
Dawson and Wayne Dawson file the present motion to dismiss.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief,” in order to “give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 555 (2007). While a complaint attacked by a Rule
12(b)(6) motion to dismiss “does not need detailed factual allegations,” it must set forth
“more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
alleged misconduct. Id. at 556. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a
defendant's liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. at 557.
In a more recent case, the Supreme Court identified two “working principles” that
underlie Twombly. See Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). First, the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to

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legal conclusions. Id. “Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.
Second, only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id. at 679. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
A dismissal without leave to amend is improper unless it is beyond doubt that the
complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728,
737 (9th Cir. 2009) (issued two months after Iqbal).1 The Ninth Circuit has held that “in
dismissals for failure to state a claim, a district court should grant leave to amend even if
no request to amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N.
Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether

1

The Court has some concern about the continued vitality of the liberal amendment policy adopted in
Harris v. Amgen, based as it is on language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), suggesting
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim . . . .” Given Twombly and Iqbal’s rejection
of the liberal pleading standards adopted by Conley, a question arises whether the liberal amendment
policy of Harris still exists. Nevertheless, the Ninth Circuit has continued to apply the liberal
amendment policy even after dismissing claims for violating Iqbal and Twombly. See Market Trading,
Inc. v. AT&T Mobility, LLC, 2010 WL 2836092 (9th Cir. July 20, 2010) (not for publication).
Accordingly, the Court will continue to employ the liberal amendment policy.

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the plaintiff will prevail but whether he “is entitled to offer evidence to support the
claims.” See Hydrick v. Hunter, 466 F.3d 676, 685 (9th Cir. 2006).
ANALYSIS
Even as a pro se litigant, Bach’s Complaint is evaluated under the Iqbal/Twombly
pleading standards. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). In
his complaint, Bach alleges a RICO violation, as well as violations of the Federal Civil
Rights Act (specifically, sections 1983, 1985(2), 1985(3), and 1986). However, Bach
fails to describe how the alleged improper sheriff’s execution sale violates either the
RICO statute or otherwise violates his constitutional rights. Accordingly, these claims fail
to state cognizable causes of action.
Just as the Court found that Bach pleaded insufficient facts against previously
dismissed Defendants, again here, he has failed to plead sufficient facts to support claims
against the Dawsons. Bach’s complaint consistently makes legal conclusions asserting
that the Dawsons violated the law, yet Bach does not offer an explanation of how they
violated the law. A recitation of the criminal elements of a crime will not satisfy the
pleading requirements. Twombly, 550 U.S. at 555. Furthermore, the complaint must set
forth “more than labels and conclusions.” Id. It is simply not enough to allege “all of said
defendants have violated the aforesaid constitutional rights and privileges of Plaintiff
John N. Bach and have perpetrated, committed and egregiously inflicted upon [] Bach”
constitutional violations. Compl., ¶ 31, Dkt. 1 (emphasis deleted). Bach asserts claims

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ranging from abuse of legal process, theft, and defamation, yet he does not spell out how
and why the Dawsons are liable for any of these claims.
The Court is unconvinced that an amendment would cure the pleading – the claims
do not simply leave out a few necessary facts; they are wholly without substance. As
such, the Court grants the Motion to Dismiss (Dkt. 34) with prejudice.
ORDER
IT IS ORDERED:
1. Defendants Donna and Wayne Dawson’s Motion to Dismiss (Dkt. 34) is
GRANTED.
2. Plaintiff’s Motion (Dkt. 37) is DENIED.

DATED: September 25, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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