Wickenkamp v. Hampton et al

Filing 5

Opinion and Order: The Court GRANTS Plaintiff's Application to Proceed In Forma Pauperis 1 and DISMISSES Plaintiff's Complaint without prejudice. Plaintiff may file an amended complaint to cure the deficiencies noted above no la ter than February 28, 2013. The Court advises Plaintiff that failure to file an amended complaint by February 28, 2013, that cures such deficiencies shall result in the final dismissal of this proceeding without prejudice. See attached 6 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARY WICKENKAMP,

3:13-CV-00152-BR

Plaintiff,
OPINION AND ORDER
v.
BRUCE HAMPTON, VENESE HAMPTON,
SCOTT HAMPTON, D. RAHN
HOSTETTER, D. ZACHARY
HOSTETTER, REBECCA A. KNAPP,
JOHN DOE NO. 1, and JOHN DOE
NO. 2,
Defendants,

MARY WICKENKAMP
1801 College Drive
Victoria, TX 77901
[phone]
Plaintiff, Pro Se

1 - OPINION AND ORDER

BROWN, Judge.
IT IS ORDERED that the provisional in forma pauperis status
given Plaintiff Mary Wickenkamp is confirmed.

For the reasons

set forth below, however, the Court DISMISSES Plaintiff's
Complaint without service of process on the ground that Plaintiff
fails to allege facts sufficient to state a claim.

BACKGROUND
Plaintiff brings this action pro se and alleges claims
against Defendants for violation of the Racketeering Influenced
and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(c) and
1964(c); intentional infliction of emotional distress; slander by
false light and defamation; violation of 18 U.S.C. §§ 2511 and
2520; and violation of Oregon's Unfair Trade Practices Act (UTPA)
§§ 646.607 and 646.638.

DISCUSSION
Federal Rule of Civil Procedure 8(a) generally provides a
pleading that sets forth a claim must contain "a short and plain
statement of the claim showing the pleader is entitled to
relief."
Federal Rule of Civil Procedure 9(b), however, requires all
allegations of fraud to be stated "with particularity."

The

heightened pleading standard of Rule 9(b) also applies to RICO
2 - OPINION AND ORDER

claims that include allegations of fraudulent activities as
predicate acts of racketeering.

Odom v. Microsoft Corp., 486

F.3d 541, 553 (9th Cir. 2007).
To satisfy the additional burdens imposed by Rule 9(b), the
plaintiff must allege "the time, place and nature of the alleged
fraudulent activities."

Fecht v. Price Co., 70 F.3d 1078, 1082

(9th Cir. 1995)(quotation omitted).

In addition, Rule 9(b)

does not allow a complaint to merely lump multiple
defendants together but require[s] plaintiffs to
differentiate their allegations when suing more
than one defendant . . . and inform each defendant
separately of the allegations surrounding his
alleged participation in the fraud.
Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007)
(quotation omitted).

"In the context of a fraud suit involving

multiple defendants, a plaintiff must, at a minimum, 'identif[y]
the role of [each] defendant[ ] in the alleged fraudulent
scheme.'"

Id. at 765 (quoting Moore v. Kayport Package Express,

Inc., 885 F.2d 531, 541 (9th Cir. 1989)).
In her 49-page Complaint, Plaintiff makes numerous factual
allegations as to various Defendants spanning a twelve-year
period.

Plaintiff, however, fails to plead with particularity

the manner in which Defendants' alleged predicate acts and
alleged fraudulent activities were directed at Plaintiff.

The

vast majority of Plaintiff's allegations involve Defendants'
actions directed at Llyod Trackwell, who is not a party to this
action.

The sole factual allegations in Plaintiff's Complaint

3 - OPINION AND ORDER

related to Defendants' actions directed towards her are as
follows:
By early 2009 Plaintiff had begun assisting Lloyd
Trackwell with the reporting of criminal conduct
engaged in by the Hamptons and others to state and
federal authorities. She did this by organizing
and cataloguing information and documents provided
to her by Lloyd Trackwell and sending it to
various agencies as directed.
* * *
From sometime in 2006 through 2012 Lloyd Trackwell
reported to federal law enforcement authorities
evidence of crimes committed by Bruce Hampton,
Venese Hampton, Scott Hampton, Marilyn Suarez,
Rahn Hostetter, Rebecca Knapp, Zachary Hostetter
and others. Sometime in 2009 Plaintiff began
assisting Lloyd Trackwell with those reports.
Plaintiff took documents and information provided
by Lloyd Trackwell, organized them and passed that
information along to federal law enforcement
agencies and federal regulatory agencies. Because
of the reports to federal authorities, both
Trackwell and Plaintiff are persons protected
under 18 U.S. C. 1513.
The Defendants, and each of them, conspired to and
did engage in a pattern of conduct directed at
Lloyd Trackwell and Plaintiff that is in violation
of 18 U.S.C. 1513(e).1 Said conduct is and was
intended to unlawfully retaliate against Trackwell
and Plaintiff and also is in furtherance of
Defendants' overall goal for the racketeering
enterprise which is to avoid prosecution for their
criminal conduct and continue to perpetrate frauds
which generate financial rewards. Those acts
include:

1

There is not any private right of action for violation of
18 U.S.C. § 1513. See, e.g., Hines v. Ca. Public Utilities
Com'n, No. C-10-2813 EMC, 2010 WL 4691652, at *6 (N.D. Cal.
Nov. 8, 2010); Nordbrock v. United States, 96 F. Supp.2d 944, 948
(D. Ariz. 2000).
4 - OPINION AND ORDER

A.

Pattern of illegal wiretapping in violation
of 18 U.S.C. 2511 whereby telephone
conversations of Lloyd Trackwell were
illegally monitored and the content thereof
disseminated among members of the Enterprise.
The communications illegally monitored
included those between Trackwell and
Plaintiff, between Trackwell and law
enforcement, between Trackwell and third
Parties.
* * *

Since sometime in late 2009 or early 2010 the
Defendants herein became aware of Plaintiff's
assistance to Lloyd Trackwell in reporting
Defendants' criminal conduct to federal
authorities and Defendants began to engage in a
pattern of retaliation against Plaintiff in
violation of 18 U.S.C. 1513(e), which such conduct
included:
A.

Circulating false and defamatory
accusations that Plaintiff engaged in
criminal conduct;

B.

Circulating false and defamatory
allegations that Plaintiff was involved
in criminal racketeering conduct;

C.

Taking statements by and about Plaintiff
out of context in order to portray
Plaintiff in a deliberately false light.

Compl. at ¶¶ 55, 59-61.
As noted, there is not any private right of action for
violation of 18 U.S.C. § 1513.

Plaintiff, therefore, may not

bring a claim for violation of that statute.

In addition,

Plaintiff does not identify the allegedly false accusations,
allegations, or statements with specificity as required under
Rule 9(b).

5 - OPINION AND ORDER

CONCLUSION
For these reasons, the Court GRANTS Plaintiff's
Application to Proceed In Forma Pauperis (#1) and DISMISSES
Plaintiff's Complaint without prejudice.
Plaintiff may file an amended complaint to cure the
deficiencies noted above no later than February 28, 2013.

The

Court advises Plaintiff that failure to file an amended complaint
by February 28, 2013, that cures such deficiencies shall result
in the final dismissal of this proceeding without prejudice.
IT IS SO ORDERED.
DATED this 30th day of January, 2013.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

6 - OPINION AND ORDER