Marshall v. State of California et al

Filing 4

ORDER TO AMEND: For Marshall to proceed further, he must file an AMENDED COMPLAINT that provides enough factual detail to support this court's jurisdiction and that this court is the proper venue. Marshall must file the Amended Complaint within 30 days of the date of this ORDER - which is March 7, 2024. Failure to respond to this Order by March 7, 2024, may mean that the court will recommend dismissing this case. The court DEFERS ruling on his application to proceed in forma pauperis (ECF No. #2 ). DATED: February 7, 2024, by United States Magistrate Judge Jeff Armistead.(Deposited in outgoing mail to pro se party on 2/7/2024.) (pjg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
GUS WHO MARSHALL,
Plaintiff,

Case No. 3:24-cv-00196-AR
ORDER TO AMEND

v.
STATE OF CALIFORNIA, UNITED
STATES GOVERNMENT, VALLEY
WATER, a State owned company, and
TOWN OF LOS GATOS,
Defendants.
_____________________________________
ARMISTEAD, Magistrate Judge
Plaintiff Gus Who Marshall, proceeding under a pseudonym and representing himself,
filed this lawsuit on January 29, 2024, alleging unspecified claims against defendants the State of
California, the United States Government, Valley Water, and the Town of Los Gatos. (Compl.,
ECF No. 1). As explained below, Marshall’s complaint is deficient, and for this lawsuit to go

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forward, he must timely file an amended complaint that corrects the deficiencies identified in this
order.
BACKGROUND
In the complaint, Marshall alleges that his brother lives in the Town of Los Gatos in a
home that backs up to an easement owned by PG&E. The easement is used by at least three
people, including Marshall, for gardening and growing plants. Marshall contends that the land
behind his brother’s home is sloped and floods easily, and that he maintains the easement area to
ensure his brother’s home and neighboring homes do not suffer water damage. Marshall
contends that he was raking debris in the easement in January 2023 when he was stopped by a
Valley Water employee who informed him that the land is owned by Valley Water. Valley Water
has sent several legal notices to his brother and other neighbors claiming that it owns the land,
not PG&E. The legal notices have strained the relationship between Marshall and his brother.
Although Marshall has stayed with his brother periodically, he is not a resident of California and
“claims no residency to any state.” Marshall further alleges that he has challenged a pedestrian
walkway and community garden project proposed by the Town of Los Gatos to be constructed
near the easement because the proposed walkway will be unsafe for children. Marshall asserts
that the State of California knew that he was about to commence this lawsuit when the San Jose
Police Department issued a warrant for his arrest. (Compl., ECF No. 1.)
Attached to the complaint are four letters from Valley Water that appear to be addressed
to Marshall’s brother. The letters recite Ordinance violations from Valley Water stating that
PG&E owns the property adjacent to the home, Valley Water has an easement over PG&E’s land
for a water supply pipeline, and that the plants, planters, rocks, and other items in the easement
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behind plaintiff’s brother’s home are preventing Valley Water from inspecting and maintaining
the pipeline. (Id. at 13-17.)
In this lawsuit, Marshall does not describe specific causes of action and does not allege
money damages. Instead, he requests: (1) an order requiring the State of California to stop
harassing him and his brother; (2) an order that stops the Town of Los Gatos from building a
walkway on the easement; (3) an investigation into Valley Water’s “land grab” of PG&E’s
easement; and (4) an order requiring that the State of California and the FBI give him a fair trial
in federal court on his arrest warrant. In the Civil Cover Sheet filed with his complaint, Marshall
asserts the basis of the court’s jurisdiction is diversity of citizenship and federal question, and
mentions the Racketeer Influenced and Corrupt Organizations Act (RICO) and
§ 1443 without further detail.
Marshall also filed an application to proceed with is lawsuit without paying the filing fees
(in forma pauperis), which remains pending. (ECF No. 2 (App. for Leave to Proceed IFP).)
LEGAL STANDARD
When a complaint is filed by a plaintiff proceeding in forma pauperis, the court must
dismiss a case if at any time it determines that the complaint is: (1) “frivolous or malicious”; (2)
“fails to state a claim on which relief may be granted”; or (3) “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Courts perform a
preliminary screening to determine whether complaints brought by self-represented litigants and
litigants proceeding in forma pauperis raise cognizable claims. See, e.g., O’Neal v. Price, 531
F.3d 1146, 1151 (9th Cir. 2008) (“After a prisoner applies for in forma pauperis status and
lodges a complaint with the district court, the district court screens the complaint and determines
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whether it contains cognizable claims. If not, the district court must dismiss the complaint.”);
Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (noting that “section 1915(e)
applies to all in forma pauperis complaints, not just those filed by prisoners”). The court’s
screening orders apply the same standard as that applied to a Federal Rule of Civil Procedure
12(b)(6) motion to dismiss. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). A complaint
under Rule 12(b)(6) must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “Dismissal is proper only if it is clear that
the plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief.”
Watison, 668 F.3d at 1112.
DISCUSSION
A.

Subject Matter Jurisdiction
The United States Constitution and federal law allow only certain kinds of cases in

federal court. That limited authority of a federal court is known as its subject matter
jurisdiction, and, if a federal court does not have subject matter jurisdiction for a case, the court
must dismiss it (in other words, put the case out of its consideration). See Adkison v. C.I.R., 592
F.3d 1050, 1055 (9th Cir. 2010) (subject matter jurisdiction “refers to a tribunal’s power to hear
a case”). The two kinds of cases for which a federal court has jurisdiction are (1) “federal
question” cases and (2) “diversity of citizenship” cases. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). This limited jurisdiction is different from Oregon circuit courts
and California superior courts, which have subject matter jurisdiction over all actions unless a
statute or law divests them of jurisdiction. Owen v. City of Portland, 368 Or. 661, 684 (2021)
(“Oregon circuit courts ‘ha[ve] general jurisdiction, to be defined, limited, and regulated by law
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in accordance with th[e Oregon] Constitution.’ Or. Const, Art VII (Original), § 1.”); Quigley v.
Garden Valley Fire Protection Dist., 444 P.3d 688, 694 (Cal. 2019) (“California’s superior
courts are courts of general jurisdiction, which means they are generally empowered to resolve
the legal disputes that are brought to them.” (citing Cal. Const., art. VI, §§ 1, 10)).
To establish federal question jurisdiction, a plaintiff must plead that defendants have
violated a federal constitutional or statutory provision. 28 U.S.C. § 1331; In re Ford Motor
Co./Citibank (S.D.), N.A., 264 F.3d 952, 957 (9th Cir. 2001) (The “party asserting federal
jurisdiction bears the burden of proving the case is properly in federal court.”). Marshall alleges
that the State of California has issued an arrest warrant, that Valley Water is harassing him by
enforcing an Ordinance, and that the Town of Los Gatos is engaged in a “land grab” by
proposing a walkway. None of these alleged actions appear to involve a federal question.
Although Marshall identifies RICO and § 1443 generally, he has not identified what particular
RICO provision under which he is purporting to bring his claim, has not identified facts to
support a RICO claim, and has not identified § 1443 with more specificity. Thus, it is not clear to
the court that any of the allegations in his complaint is a federal question, or in other words,
violates federal law or the United States Constitution.
To establish diversity jurisdiction, a plaintiff must plausibly allege that damages are
more than $75,000, that he is a citizen of one state, and that all the defendants are citizens
of other states. 28 U.S.C. § 1332(a). Despite stating that he has no state of residency, Marshall
provides a California address for himself and defendants include the State of California and two
California local governmental entities. Because Marshall and three defendants appear to be
citizens of California, he has not alleged that he and defendants are of diverse citizenship. The
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complaint also does not request any money damages and seeks primarily injunctive relief.
Because Marshall has not alleged any money damages, he has not alleged that his damages
exceed the $75,000 jurisdictional amount. Thus, the court lacks diversity jurisdiction over this
action.
Should Marshall choose to file an amended complaint, he must establish either federal
question or diversity jurisdiction. Otherwise, the court will recommend dismissing this lawsuit.
B.

Venue
A federal district court also may not decide the merits of a lawsuit if the court is not a

proper venue. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.
1979). Venue of civil actions is governed by the general federal venue statute, 29 U.S.C. § 1391.
Day v. Orrick, Herrington & Sutcliffe, LLP, 42 F.4th 1131, 1140 (9th Cir. 2022). Under that
statute, a plaintiff may bring a civil action in:
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
29 U.S.C. § 1391(b).
The events giving rise Marshall’s claims occurred in California, involve California state
and local governmental entities, and Marshall provides a California address. Based on the
allegations, venue is not proper in the District of Oregon. Instead, venue is likely proper in the

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Northern District of California or a California state court. Marshall must therefore amend his
complaint to allege facts showing that venue is proper in this district if he wishes to proceed here
with his lawsuit.
C.

Sufficiency of the Complaint
A complaint must contain (1) a short and plain statement of the grounds for the court’s

jurisdiction, (2) a short and plain statement of the claim showing that the pleader is entitled to
relief, and (3) a demand for the relief sought. FED. R. CIV. P. 8(a). Rule 8 “does not require
detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
and citation omitted). When reviewing the sufficiency of a complaint filed by a self-represented
plaintiff, the court liberally construes the pleadings and accepts as true the factual allegations
contained in the complaint. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, “the
tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Rather, stating a claim requires the plaintiff to plead factual content that permits the court
to draw the reasonable inference that the defendant is liable for the alleged misconduct. Id.
Marshall’s complaint fails to satisfy Rule 8. Although Marshall identifies RICO as a basis
for the court’s jurisdiction, the complaint fails to provide a short and plain statement of relief.
The complaint fails to allege specific underlying facts describing what actions the State of
California, the U.S. Government, Valley Water, and the Town of Los Gatos did or failed to do
that allegedly violated any specific provision of RICO or any other statute. Thus, it is unclear
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what legal theory and factual support for that theory that Marshall is attempting to advance.
Marshall’s complaint also mentions § 1443. However, it is unclear to which statute he is
referring, and he fails to allege any specific facts linking that statute to each defendant. It is thus
unclear what specific claims or legal theories he is trying to allege.
D.

Other Issues
Marshall seeks to bring this case as a class action, pursing claims for his brother and other

Los Gatos residents. Marshall is not an attorney. While he may represent himself in federal court,
28 U.S.C. § 1654, a non-attorney plaintiff may not pursue claims on behalf of other people.
McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966); Simon v. Hartford Life, Inc., 546
F.3d 661, 664 (9th Cir. 2008). Should Marshall choose to file an amended complaint, he may not
pursue a class action or an action on his brother’s behalf.
A party is permitted to pursue claims under a pseudonym only with the court’s
permission and where there are exceptional or unusual circumstances warranting anonymity,
such as a risk of injury or harassment. United States v. Doe, 488 F.3d at 1154, 1156 n.1 (9th Cir.
2007). If Marshall wants to continue this lawsuit using a pseudonym, he must file a motion
demonstrating that exceptional or unusual circumstances exist in this case.
Under the Eleventh Amendment, Marshall’s lawsuit against the federal government and
the State of California are barred by the doctrine of sovereign immunity. United States v.
Mitchell, 463 U.S. 206, 212(1983) (holding that absent a waiver, sovereign immunity shields the
federal government from suit); College Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 669 (1999) (holding states are immune from suit in federal court
under the Eleventh Amendment). Marshall has not alleged that the U.S. Government and the
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State of California have waived their Eleventh Amendment immunity, or that they have
consented to be sued. Marshall must exclude the State of California and the U.S. Government as
defendants or demonstrate that sovereign immunity has been waived if he files an amended
complaint.
Self-represented litigants are “entitled to notice of the complaint’s deficiencies and an
opportunity to amend prior to dismissal of the action.” Garity v. APWU Nat’l Labor Org., 828
F.3d 848, 854 (9th Cir. 2016) (per curiam)). As currently pleaded, the complaint fails to establish
that this court has subject matter jurisdiction over Marshall’s lawsuit or that venue is proper in
this court. Should Marshall choose to file an amended complaint, he must include enough factual
allegations to establish this court has federal question or diversity subject matter jurisdiction, that
venue is proper in Oregon, and identify causes of actions with sufficient factual detail to describe
how any properly named defendant could be liable for any misconduct. Marshall is cautioned
that he may not pursue claims on behalf of others, and that if he chooses to proceed
anonymously, he must obtain the court’s permission and demonstrate exceptional circumstances.
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CONCLUSION
For Marshall to proceed further, he must file an AMENDED COMPLAINT that
provides enough factual detail to support this court’s jurisdiction and that this court is the proper
venue. Marshall must file the Amended Complaint within 30 days of the date of this ORDER—
which is March 7, 2024. Failure to respond to this Order by March 7, 2024, may mean that the
court will recommend dismissing this case. The court DEFERS ruling on his application to
proceed in forma pauperis (ECF No. 2).
DATED: February 7, 2024.
___________________________
JEFF ARMISTEAD
United States Magistrate Judge

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