Lundahl et al v. JP Morgan Chase Bank et al

Filing 15

ORDER DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE IN PART, granting 3 Motion for Leave to Proceed in forma pauperis; granting 4 Motion for Leave to Proceed in forma pauperis; denying 8 Motion to Electronically File Documents in CM/ECF ; denying 9 Motion to Electronically File Documents in CM/ECF; denying 12 Motion to Seal Document; denying 13 Motion for judicial notice, dismissing Michele M. Christiansen, Travis O'Gorman, Derek Weimer, Carol Stouffer, Frankie Moore, Carolyn Olsen, Neil Lund and Mary Corporon. Signed by U.S. District Judge Lawrence L. Piersol on 8/2/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

LOGAN LUNDARE,HOLLI LUNDAHL,

5:17-CV-05069-LLP

Plaintiffs,
ORDER DISMISSING COMPLAINT IN

vs.

PART AND DIRECTING SERVICE IN

JP MORGAN CHASE BANK, MICHELE M

PART

CHRISTIANSEN, in her official capacity;
MARY CORPORON, OLD
REPUBLIC
INSURANCE CO., MEL HOFFMAN, LOS
ANGELES HOMEOWNERS AID, TRAVIS

O'GORMAN, in his official capacity; DEREK
WEIMER, in his official capacity; CAROL
STOUFFER, in her official capacity; FRANKIE
MOORE, in her official capacity; LILIA
CHAVARIN,
AMERICAN
MODERN
INSURANCE GROUP,CAROLYN OLSON,in

her official capacity; NEIL LUND,in his official
capacity;
FIRST AMERICAN TITLE
INSURANCE CO., DOES I-IO,
Defendants.

Plaintiffs, Logan Lundahl and HoIIi Lundahl, appearing pro se, filed a complaint alleging
causes of actions ranging from civil rights claims under 42 U.S.C. § 1983 to the Racketeering
Influenced and Corrupt Organizations Act(RICO)under 18 U.S.C. § 1601 to state law tort claims.
Docket I. This case follows in a series of cases filed by Holli Lundahl that relate to property in

Provo, Utah. Holli Lundahl filed several cases in state and federal courts in Texas, Idaho,
Wyoming, Nebraska. Plaintiffs contend that "the courts obstructed plaintiffs rights to seek any
future relief by fraudulently constructing orders that were patently false to impede Plaintiffs fair

andjust access to the courts to try her claims,and by issuing a filing injunction that basically barred

Plaintiffs from filing documents that attacked the facially fraudulent orders." Docket 1 at 7. In

addition to the instant complaint, plaintiffs filed motions requesting leave to proeeed in forma
pauperis,(Doeket 3 and 4), motions to electronically file documents (Docket 9), a motion to seal
certain exhibits(Docket 12), and a request for judicial notice (Docket 13).
There is a two-step screening process with in forma pauperis litigants. Martin-Trigona v.
Stewart, 691 F.2d 856, 857 (8th Cir. 1982); see also Key v. Does, 217 F. Supp. 3d 1006, 1006
(E.D. Ark. 2016). First, distriet eourts must determine whether a plaintiff is financially eligible to
proceed in forma pauperis under 28 U.S.C. § 1915(a). Id. Second, district courts are to determine
whether the complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B). Id.
This eourt may authorize the eommencement of suit without prepayment of fees when an

applicant files an affidavit stating he is unable to pay the eosts of the lawsuit. 28 U.S.C. § 1915.
Determining whether an applicant is sufficiently impoverished to qualify to proeeed in forma
pauperis under § 1915 is committed to the court's discretion. Cross v. Gen. Motors Corp., 721
F.2d 1152,1157(8th Cir. 1983)."In forma pauperis status does not require a litigant to demonstrate
absolute destitution." Lee v. McDonald's Corp., 231 F.3d 456(8th Cir. 2000).
Based upon Logan Lundahl's application, he indicates that he is disabled, qualifies for
publie assistance, and has very limited assets. Docket 3. Considering the information in the
financial affidavit, the court finds that Logan Lundahl has made the requisite financial showing to
proceed in forma pauperis. Id.

Based upon Holli Lundahl's application, she indicates that she is disabled, receives public
assistance, and has very limited assets. Docket 4. Considering the information in the financial
affidavit, the court finds that Holli Lundahl has also made the requisite fmaneial showing to
proceed in forma pauperis. Id.

But the inquiry does not end there. Under § 1915, the court must review the claims in the
complaint to determine if they are (1) frivolous or malicious;(2) fail to state a claim on which
relief may be granted; or (3) seek monetary relief against a defendant who has immunity. See
28 U.S.C. § 1915(e)(2)(B).
A pro se complaint should be given liberal construction. Stone v. Harry, 364 F.3d 912,

915 (8'^ Cir. 2004). A pro se eomplaint, regardless of how inartfully pleaded, is held to less
stringent standards than pleadings drafted by lawyers and may only be dismissed for failure to

state a claim if it appears "beyond a doubt that the plaintiff can prove no set offacts in support of
[her] claim which would entitle [her] to relief." Hughes v. Rowe, 449 U.S. 5, 10 n.7 (quoting
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). This policy of liberal construction, however,
"does not mandate that a Court sustain every pro se complaint even if it is incoherent, rambling,
and unreadable." Barsella v. U.S., 135 F.R.D.64,66(S.D.N.Y. 1991). Rule 8 ofthe Federal Rules
of Civil Procedure requires that a complaint set forth "a short and plain statement of the claim

showing that [Plaintiff] is entitled to relief." FRCP 8(a)(2). This Rule also requires that each claim
be "simple, eoncise and direct." FRCP 9(e)(2). The purpose ofthis rule is that a defendant be given
fair notice of what the plaintiffs claim is and the grounds upon which it rests. Romine v. Acxiom

Corp., 296 F.3d 701, 711 (8"^ Cir. 2002)citing Swierkiewcz v. Sorema N.A., 534 U.S. 506(2002).
I.

Official Capacity Defendants
Plaintiffs sue Michele M. Christiansen, Travis O'Gorman, Derek Weimer, Carol Stouffer,

Frankie Moore, Carolyn Olsen, and Neil Lund in their official capacities. Claims against a

government officer in his or her official capacity are claims against the government entity for
which the officer works. Kentucky v. Graham,473 U.S. 159, 167(1985). "Because the real party

in interest in an official capacity suit is the governmental entity and not the named official, 'the

entity's "policy or custom" must have played a part in the violation of federal law.'"Hafer v.
Melo, 502 U.S. 21,25(1991).
Michele M. Christiansen was a state court judge in Utah. See Docket 1-23. Travis
O'Gorman, Derek Weimer, and Frankie Moore were state courtjudges for the State of Nebraska.
See Docket 1-15; 1-19. Carol Stouffer was Clerk of Court for Sheridan County, Nebraska. See
Docket 1-19. Carolyn Olsen was a prosecutor in Pennington County, South Dakota. See Docket 11 at 5. Neil Lund was a prosecutor in Daggett County, Utah. See Docket 1-1 at 5.
Plaintiffs must establish the prerequisite to governmental liability under § 1983 against the
state ofUtah,the state ofNebraska,Sheridan County Nebraska,Pennington County,South Dakota,
and Daggett County Utah: plaintiffs must allege that an official custom or policy brought about
the alleged constitutional deprivation. Hafer v. Melo, 502 U.S. 21, 25 (1991); Monell v. Dep't of
Soc. Servs. ofN.Y,436 U.S. 658, 690-91 (1978). Plaintiff makes no such allegation against any
ofthese government entities and thus fails to state a claim upon which relief may be granted. There
are no facts alleged in the complaint to reasonably suggest that plaintiffs have a viable claim
against any ofthese government entities. Consequently, the complaint against defendants Miehele
M. Christiansen, Travis O'Gorman, Derek Weimer, Carol Stouffer, Frankie Moore, Carolyn
Olsen, and Neil Lund will be dismissed under 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(l).
Plaintiffs sixth claimed cause of aetion requests "prospective declaratory and injunctive
relief against the judicial and prosecutorial defendants." Docket 1-1 at 5. There is no adequate

pleading for any such relief.
II.

Mary Corporon

Plaintiffs allege a RICO violation and name Mary Corporon as a conspirator. Corporon
served as Holli Lundahl's court appointed attorney in federal criminal matters in Utah. Docket 1

f

at 14. Holli Lundahl alleges that "Corporon did nothing to advance HOLLI's causes hecause she

had been paid by LAHA and other complaining witnesses to secure a criminal judgment against
HOLLI by any means available." Docket 1 at 13. In fact, both Utah federal criminal actions were

dismissed without prejudice. See Lundahl v. Utah, CR. 07-00272-WFD, Docket 74 (D. Utah
January 21, 2009) and CR 06-00693-WFD, Docket 267,(D. Utah January 21, 2009).

RICO makes it "unlawful for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of
racketeering activity or collection ofunlawful debt." 18 U.S.C. § 1962(c)."In order to demonstrate

a violation of this section, therefore, a plaintiff must establish (1) the existence of an enterprise;
(2) defendant's association with the enterprise; (3) defendant's participation in predicate acts of
racketeering; and (4) defendant's actions constitute a pattern of racketeering activity. In addition,
the plaintiff must demonstrate that he has been injured in his business or property by the conduct
constituting the violation, a requirement equivalent to a showing of proximate causation and
damages." UnitedHealthCare Corp. v. Am. Trade Ins. Co., Ltd., 88 F.3d 563,570(8th Cir. 1996)
(internal citations and quotation marks omitted).
Plaintiffs also eite to § 1962(d), which proscribes any person from conspiring to violate
section 1962(c). 18 U.S.C. § 1962(d). To prove conspiracy "plaintiffs must not only prove the
elements of a RICO violation but also that [defendants] objectively manifested an agreement to

participate...in the affairs ofthe enterprise." Rosemann v. St. Louis Bank,858 F.3d 488,500(8th
Cir. 2017)(internal alterations and quotation marks omitted). Here, plaintiffs' allegations fall short

ofstating a plausible claim against Corporon sufficient to survive screening. Plaintiffs do not allege
that Corporon "manifested an agreement to partieipate ... in the affairs of the enterprise." Such

an inference eannot be drawn from the allegation that LAHA and other complaining witnesses
paid Corporon to secure a conviction. Consequently,the complaint against Mary Corporon will be
dismissed under 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(l).

To the extent that plaintiffs assert causes ofaction eight through thirteen against Corporon,
those claims will be dismissed for failure to state a claim upon which relief may be granted under
1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(l).

III.

JP Morgan Chase Bank, Old Republic Insurance Co., Mel Hoffman, Los Angeles
Homeowners Aid, Lilia Chavarin, American Modern Insurance Group, First
American Title Insurance Co., Does 1-10

At this juncture, the court cannot say the complaint against JP Morgan Chase Bank, Old
Republic Insurance Co., Mel Hoffman, Los Angeles Homeowners Aid, Lilia Chavarin, American

Modem Insurance Group,First American Title Insurance Co., Does 1-10 is wholly without merit.
Thus, the court will direct service of JP Morgan Chase Bank, Old Republic Insurance Co., Mel

Hoffman,Los Angeles Homeowners Aid, Lilia Chavarin, American Modem Insurance Group,and
First American Title Insurance Co.

Accordingly, it is ORDERED

1. Logan Lundahl's motion for leave to proceed in forma pauperis(Docket 3)is granted.
2. Holli Lundahl's motion for leave to proceed in forma pauperis(Docket 4)is granted.
3. Logan Lundahl's request to electronically file documents(Docket 8)is denied.
4. Holli Lundahl's request to electronically file documents(Docket 9)is denied.
5. Plaintiffs fail to state a claim against defendants Miehele M. Christiansen, Travis
O'Gorman, Derek Weimer, Carol Stouffer, Frankie Moore, Carolyn Olsen, Neil Lund,

and Mary Corporon. They are dismissed under §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

6. The fifth and sixth claimed causes of action are dismissed with prejudice.

7. Plaintiffs shall complete and send to the Clerk of Court a separate summons and USM285 form for each remaining defendant. Upon receipt of the completed summons and
USM-285 forms, the Clerk of Court will issue the summonses. If the completed
summons and USM-285 forms are not submitted as directed, the complaint may be
dismissed.

8. The United States Marshal Service shall serve the completed summonses,together with
a copy ofthe complaint and this order, upon the remaining defendants.
9. Plaintiffs' motion to seal(Docket 12)is denied.

10. Plaintiffs' motion for judicial notice(Docket 13)is denied. The documents are filed in
the record ofthis case.

A^
DATED this ^ day of August,2018.
BY THE COURT:
ATTEST:

amu.I
MATTH

W.T^ELEN,CLERK

/L^WRENECE L.'PIERSOL
nited States District Judge

(SEAL)

DEPUTY