Brodzki v. Cook County

Filing 5

ORDER Accepting, to the extent it is consistent with this Order, 2 Report and Recommendation. FURTHER ORDERED that 3 Plaintiff's Complaint is DISMISSED with prejudice. The Clerk shall close this case. Signed by Judge Gloria M. Navarro on 2/21/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY J. BRODZKI,
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Plaintiff,

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vs.

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COOK COUNTY, ILLINOIS,
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Defendant.

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Case No.: 2:12-cv-00033-GMN-PAL
ORDER

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Pending before the Court is the Report of Findings and Recommendation (ECF No. 2)

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submitted by Magistrate Judge Peggy A. Leen. Plaintiff Anthony J. Brodzki filed an Objection to

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the Report and Recommendation on February 6, 2012. (ECF No. 4.)

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I.

BACKGROUND

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Plaintiff has filed a Complaint (ECF No. 3) against Cook County, Illinois, claiming

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“emotional infliction of stress,” and appearing to claim violations described as “[a]ssault battery,

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1st amendment rights, and 4th amendment rights.” Plaintiff requests “damages of 5,000,000.” To

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support his claims, Plaintiff appears to describe an experience he had while working in the

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carpenter shop “some years ago” when he was employed by “the cook county forest preserve in

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the past.” He states that he “bring[s] venue here because I lived here for 4 years and 2 months

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recently[, f]rom 4-1-05 to 6-04-09.” Plaintiff identifies a person named “Charles marine” who

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attempted to coerce Plaintiff to perform a sexual act and then masturbated in front of Plaintiff.

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Plaintiff names two witnesses to this event, “peno” and “Mr. givens.”

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The Magistrate Judge’s Report and Recommendation found that allegations of other facts

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would not cure the deficiencies in the Complaint, and recommended dismissal with prejudice.

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(ECF No. 2.)

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In his Objection, Plaintiff adds the detail that “Charles marine” is or was “a boss at the

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cook county forest preserves.” (ECF No. 4.) Plaintiff also elaborates upon the incident described

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in his Complaint. Plaintiff makes reference to lines 21-24 of the second page of the Report and

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Recommendation, which states that “[t]he court finds that Plaintiff’s factual claims describe

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fantastic and delusional scenarios and do not state a claim upon which relief can be granted.”

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(Report and Recommendation, 2:23-24.) To this statement Plaintiff responds, “Getting raped and

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sodomized is delusional your honor?” (Pl.’s Objection, 1:8, ECF No. 4.) The remainder of

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Plaintiff’s Objection appears to object to the entirety of the Report and Recommendation.

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II.

LEGAL STANDARD
This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party makes a timely

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objection to the Magistrate Judge’s recommendation, the Court is required to “make a de novo

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determination of those portions of the report or specified proposed findings or recommendations

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to which objection is made.” Id.
Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

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that fails to state a claim upon which relief can be granted. See North Star Int’l. v. Arizona Corp.

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Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule

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12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not

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give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

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sufficient to state a claim, the Court will take all material allegations as true and construe them in

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the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.

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1986).

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The Court, however, is not required to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

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with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation

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is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly,

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550 U.S. at 555) (emphasis added). Mindful of the fact that the Supreme Court has “instructed the

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federal courts to liberally construe the ‘inartful pleading’ of pro se litigants,” Eldridge v. Block,

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832 F.2d 1132, 1137 (9th Cir. 1987), the Court will view Plaintiff’s pleadings with the appropriate

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degree of leniency.

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If the court grants a motion to dismiss, it must then decide whether to grant leave to amend.

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The court should “freely give” leave to amend when there is no “undue delay, bad faith[,] dilatory

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motive on the part of the movant . . . undue prejudice to the opposing party by virtue of . . . the

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amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S.

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178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of

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the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d

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655, 658 (9th Cir. 1992).

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III.

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DISCUSSION
Although the facts alleged in Plaintiff’s Complaint support an inference of impropriety on

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the part of the person named “Charles marine,” Plaintiff does not state sufficient facts to support a

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legal claim against Cook County for negligent or intentional infliction of emotional distress,

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assault and battery, or for violation of First and Fourth Amendment rights under the United States

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Constitution.

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The First Amendment of the United States Constitution provides: “Congress shall make no

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law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging

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the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to

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petition the Government for a redress of grievances.” Plaintiff does not allege any facts showing a

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violation of these rights on the part of Cook County.

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The Fourth Amendment of the United States Constitution provides: “The right of the

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people to be secure in their persons, houses, papers, and effects, against unreasonable searches

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and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

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supported by Oath or affirmation, and particularly describing the place to be searched, and the

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persons or things to be seized.” Plaintiff does not allege any facts showing a violation of these

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rights on the part of Cook County.

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Under Nevada law, to maintain a cause of action for assault a plaintiff must allege that the

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actor: (1) intended to cause harmful or offensive physical contact; and (2) the victim was put in

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apprehension of such contact. See Switzer v. Rivera, 174 F.Supp. 2d 1097, 1109 (D. Nev. 2001).

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To maintain a cause of action for battery, a plaintiff must allege that the actor: (1) intended to

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cause harmful or offensive contact; and (2) that the contact occurred. Id. Here, Plaintiff does not

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allege that any contact occurred, and therefore alleges no facts supporting a claim of battery.

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Plaintiff’s description of the facts may support an inference of assault on the part of “Charles

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marine,”; however, in his Complaint Plaintiff does not allege that “Charles marine” was an agent

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of Cook County, nor does he allege any other relationship that would support liability on the part

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of Cook County.

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The elements of a cause of action for intentional infliction of emotional distress (“IIED”)

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are: “(1) extreme and outrageous conduct with either the intention of, or reckless disregard for,

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causing emotional distress, (2) the plaintiff having suffered severe or extreme emotional distress

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and (3) actual or proximate causation.” Dillard Dept. Stores, Inc. v. Beckwith, 989 P.2d 882, 886

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(Nev. 1999). Extreme and outrageous conduct is that which is “outside all possible bounds of

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decency and is regarded as utterly intolerable in a civilized community.” Maduike v. Agency Rent-

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A-Car, 953 P.2d 24, 26 (Nev. 1998). Just as with IIED, in order to establish a claim for negligent

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infliction of emotional distress (“NIED”), “the plaintiff needs to show ‘extreme and outrageous

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conduct with either the intention of, or reckless disregard for, causing emotional distress.’”

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Nevada v. Eighth Judicial Dist. Court ex rel. County of Clark, 42 P.3d 233, 241 (Nev. 2002)

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(quoting Shoen v. Amerco, Inc., 896 P.2d 469, 476 (1995)). Though Plaintiff does not specifically

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allege infliction of emotional distress, the Court finds that even if he had, his claim is

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insufficiently pleaded to plausibly establish negligent or intentional infliction of emotional

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distress. At most, the facts alleged by Plaintiff can only support an inference of possible infliction

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of emotional distress by “Charles marine.” Furthermore, no plausible inference can be made

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against Cook County from the facts stated by Plaintiff in his Complaint.

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For the reasons discussed above, the Court finds that Plaintiff has failed to state a claim

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upon which relief can be granted. Therefore, the Magistrate Judge’s recommendation to dismiss

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Plaintiff’s Complaint for failure to state a claim upon which relief can be granted is adopted and

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accepted. The Court must next consider whether to grant Plaintiff leave to file an amended

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complaint.

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The Court notes that Plaintiff has filed two other Complaints against this Defendant in the

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District of Nevada. See Brodzki v. Cook County, No. 2:11-cv-01852-RCJ-PAL, 2012 U.S. Dist.

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LEXIS 3107 (D. Nev. 2012) (dismissing the complaint with prejudice for failure to state a claim

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upon which relief can be granted), appeal docketed, No. 12-15101 (9th Cir. Jan. 17, 2012);

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Brodzki v. Cook County, No. 2:12-cv-00104-GMN-CWH (D. Nev. filed Jan. 20, 2012).

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The Court also notes that Plaintiff has filed seventeen lawsuits before the District of

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Nevada since July 2010. See Brodzki v. Regional Justice Ctr., No. 2:10-cv-01091-LDG-LRL,

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2010 U.S. Dist. LEXIS 141865 (D. Nev. 2010); Brodzki v. Gillispie, No. 2:10-cv-02051-KJD-

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GWF (D. Nev. filed Nov. 23, 2010); Brodzki v. Nevada, No. 3:11-cv-00206-LRH-VPC, 2011

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U.S. Dist. LEXIS 107221 (D. Nev. 2011); Brodzki v. Westerman, No. 2:11-cv-00697-PMP-GWF,

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2011 U.S. Dist. LEXIS 96509 (D. Nev. 2011); Brodzki v. Gillespie, No. 2:11-cv-01041-LDG-RJJ

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(D. Nev. filed June 23, 2011); Brodzki v. City of Las Vegas, No. 2:11-cv-01489-KJD-PAL (D.

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Nev. filed Sept. 15, 2011); Brodzki v. City of Chicago, No. 2:11-cv-01655-PMP-CWH, 2011 U.S.

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Dist. LEXIS 128187 (D. Nev. filed Oct. 13, 2011); Brodzki v. Cook County, No. 2:11-cv-01852-

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RCJ-PAL (D. Nev. 2012); Brodzki v. Station Casinos, Inc., No. 2:11-cv-01851-PMP-VCF, 2011

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U.S. Dist. LEXIS 134660 (D. Nev. 2011); Brodzki v. City of Las Vegas, No. 2:11-cv-01953-PMP-

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GWF, 2012 U.S. Dist. LEXIS 10395, (D. Nev. 2012); Brodzki v. Jacks, No. 2:11-cv-02060-JCM-

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RJJ, 2012 U.S. Dist. LEXIS 16593 (D. Nev. 2012); Brodzki v. City of Las Vegas – Metro, No.

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2:11-cv-02075-PMP-PAL, 2012 U.S. Dist. LEXIS 15961 (D. Nev. 2012); Brodzki v. City of North

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Richland Hills, No. 2:11-cv-02101-RCJ-CWH (D. Nev. filed Dec. 27, 2011); Brodzki v. Cook

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County, No. 2:12-cv-00033-GMN-PAL (D. Nev. filed Jan. 9, 2012); Brodzki v. Tarrant County

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Sheriff, 2:12-cv-00040-JCM-VCF, 2012 U.S. Dist. LEXIS 9689 (D. Nev. filed Jan. 10, 2012);

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Brodzki v. Tarrant County Dist. Att’y, 2:12-cv-00041-RCJ-RJJ (D. Nev. filed Jan. 10, 2012);

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Brodzki v. Cook County, 2:12-cv-00104-GMN-CWH (D. Nev. filed Jan. 20, 2012).

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Plaintiff also has a history of filing deficient complaints and frivolous lawsuits in other

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jurisdictions. See, e.g., Brodzki v. CBS Sports, Civ. No. 10-1141-SLR, 2011 WL 1327122, at *3

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(D. Del. April 5, 2011) (dismissing the complaint as frivolous pursuant to 28 U.S.C. §

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1915(e)(2)(B)). The Delaware District Court noted:

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According to the National Case Party Index database, beginning in 2009 to

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date, [Brodzki] has filed over seventy civil actions, nine appeals, and one

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bankruptcy. The United States District Court for the Northern District of

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Illinois issued a vexatious litigant order against plaintiff, In Re: Anthony J.

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Brodzki, Civ. No. 10-04591 on July 23, 2010. In addition, plaintiff was

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sanctioned on April 19, 2010, in the United States District Court for the

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Northern District of Texas based upon his history of submitting multiple

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frivolous lawsuits in Brodzki v. North Richland Hills Police Dep’t, Civ. No.

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10-0539-P-BH, 2010 WL 1685798 (N.D.Tex. Apr.19, 2010), aff’d, No. 10-

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10428, 2011 WL 148136 (5th Cir. Jan. 18, 2011).

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Id. at *2. The Court’s research confirms this estimate, and that the number of actions filed by

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Plaintiff has since multiplied to over one hundred and forty civil actions and over twenty appeals.

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Because of Plaintiff’s history of filing deficient complaints in this jurisdiction and in other

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jurisdictions, the Court cannot find that there is no bad faith on the part of Plaintiff in filing this

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Complaint. Also, because Plaintiff’s one-quarter page Complaint contains only extreme factual

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allegations of a graphic nature, conclusory allegations of legal breach on the part of Defendant,

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and an extreme request for damages, the Court cannot find that it is clear the deficiencies of the

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complaint can be cured by amendment. Therefore, Plaintiff’s Complaint will be dismissed with

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prejudice.

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IV.

CONCLUSION

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IT IS HEREBY ORDERED that the Magistrate Judge Peggy A. Leen’s Report and

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Recommendation (ECF No. 2) is ACCEPTED to the extent it is consistent with this Order.

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IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 3) is DISMISSED
with prejudice. The Clerk of the Court shall close this case.
DATED this 21st day of February, 2012.

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Gloria M. Navarro
United States District Judge

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