Cooney v. Dwyer

• Court: District Court, N.D. California
• Decided: June 6, 2022
• Docket: 4:21-cv-01721
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DEBORAH COONEY, 7 Case No. 4:21-cv-01721-YGR Plaintiff, 8 v. ORDER DISMISSING CASE WITHOUT LEAVE 9 TO AMEND; DENYING MOTION FOR CITY OF SAN DIEGO, ET AL., PRELIMINARY INJUNCTION AS MOOT 10 Defendants. 11

12 Pro se plaintiff Deborah Cooney has filed a motion for preliminary injunction seeking to 13 prevent all of the defendants from wrongfully arresting, detaining, imprisoning, or involuntary 14 hospitalizing plaintiff. (Dkt. No. 268 at 1.) In filing this sweeping motion, plaintiff requests that 15 the Court take judicial notice of “all documents filed in [the underlying lawsuits implicated in her 16 complaint], all federal and state habeas, civil, criminal, restraining order, eviction, and other 17 proceedings related to the Complaint.” (Id. at 3.) 18 As the parties are aware, there are over thirty pending motions to dismiss in this case. 19 Those motions raise myriad meritorious defenses, including without limitation, lack of personal 20 jurisdiction or improper venue, preclusion, and failure to state a claim. While plaintiff diligently 21 responded to the motions, her oppositions extensively copied one another. Familiar with the 22 pending motions, the allegations in the First Amended Complaint (“FAC”), and having considered 23 plaintiff’s pending motion for preliminary injunction, the motion improperly seeks to litigate the 24 pending motions to dismiss in the guise of a motion for preliminary injunction. Since the 25 deficiencies with plaintiff’s FAC are ripe for determination, the Court HEREBY ORDERS that 26 plaintiff’s case is DISMISSED WITHOUT LEAVE TO AMEND and the pending motion for 27 1 preliminary injunction is denied as MOOT.1 2 I. BACKGROUND 3 In short, plaintiff’s FAC identifies over 140 defendants, including former governors, 4 businesses, law firms, lawyers, public agencies and officials, unions, cities and counties, landlords, 5 and judicial officers. While not entirely clear from the face of the FAC, defendants are primarily 6 from Florida, California, and West Virginia. One defendant also appears to be a resident of 7 Mexico. 8 Based upon a liberal and generous construction of plaintiff’s shotgun pleading, especially 9 given her pro se status, the Court is hard-pressed to find a plausible common glue amongst the 10 sprawling, confusing, and conclusory allegations. Plaintiff’s FAC and opposition briefs 11 demonstrate her intent to allege what she has deemed “intrinsic and extrinsic fraud on the courts.” 12 (FAC ¶ 1.) Pursuant to the FAC, “[a]ll of the Defendants participated in all of the wrongdoing and 13 crimes stated herein” in the FAC “because all of the Defendants worked together to defraud the 14 Courts, to injure and harm the plaintiff, and to abridge her rights.” (Id. ¶ 33.) As alleged, those 15 wrongdoings are extensive. For instance, “[a]ll of the defendants conspired to deprive Plaintiff of 16 liberty, work, health, housing, mail delivery, legal representation, police protection, justice, 17 transportation, communication, access to telephone and computer, libraries, food, gasoline, water, 18 electricity, and other goods and services.” (Id. ¶ 25.) How were these allegations carried out? As 19 alleged, all defendants subjected “Plaintiff to illegal stop and frisk, false arrest, false 20 imprisonment, malicious prosecution, battery, radiation injury, and forcible drugging” through 21 “trespass, theft, burglary, vandalism, extortion, racketeering, [] mail fraud . . . defam[ation] and 22 slandering, [as well as] lying about her health, words, and actions.” (Id.) 23 Construing the FAC with a liberal lens, plaintiff tries to tie various categories of events 24 together to raise an inference that there is intrinsic and extrinsic fraud on the court. Tying these 25 categories together based upon the allegations demonstrates how sprawling and disconnected 26

27 1 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court 1 many events are. First, plaintiff alleges that she was entitled to relief in four “Underlying Cases” 2 that she had filed in various courts of law, including in California, Florida, and West Virginia. (Id. 3 ¶ 20-24.) Some allegations suggest that there are other lawsuits, however, the scope, timing, and 4 outcome of those proceedings are incomprehensible as alleged. Without limiting the allegations in 5 the FAC, plaintiff alleges that court orders were unlawfully issued without authorization, false 6 statements were made in those proceedings by the parties or their counsel, judicial officers were 7 unduly influenced, and counsel failed to sufficiently represent her interests. Second, plaintiff 8 challenges her prior arrests and/or prosecutions, including without limitation, that they lacked 9 probable cause and were based upon false information. Third, plaintiff challenges the conditions 10 of her confinement while she was incarcerated, including without limiting, being subjected to 11 defective telephone equipment that caused her radiation injury, being deprived access to showers, 12 being injected with unknown substances, and being exposed to other personal injury. Fourth, 13 plaintiff’s FAC alleges that various utility companies caused her harm through radiation exposure 14 and/or denied her access to telephone services. Fifth, plaintiff asserts that retailers blocked her 15 access to various goods and services and that she was subjected to false arrest or detention 16 stemming from plaintiff’s efforts to access or use the various services. Sixth, various insurance 17 carriers allegedly denied plaintiff coverage for damages causes from the defendants. Seventh, 18 plaintiff alleges that various prospective and current employers wrongfully terminated or denied 19 plaintiff employment based upon false information concerning her background. Eighth, landlords 20 allegedly prevented her from using her home, which included accessing important court 21 documents and other valuables, which plaintiff alleges were improperly retained. 22 In light of the foregoing, plaintiff alleges that she brings her suit pursuant to 42 U.S.C. §§ 23 1983, 1985, and 1986, as well as 18 U.S.C. § 1964. It also alleges that the defendants’ conduct 24 was criminal conduct proscribed by 18 U.S.C. §§ 201, 241-2, 1341, 1343, 1346, 1347, 1349, and 25 1961-2. 26 II. LEGAL STANDARD 27 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 1 dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 3 Corp. v. Twombly, 550 U.S. 544, 557, (2007)). That requirement is met “when the plaintiff pleads 4 factual content that allows the court to draw the reasonable inferences that the defendant is liable 5 for the misconduct alleged.” Id. In evaluating a motion to dismiss under Rule 12(b)(6), the Court 6 takes all allegations of material fact as true and construes them in the light most favorable to the 7 plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). Even under the 8 liberal pleading standard of Federal Rule of Civil Procedure 8, “a plaintiff’s obligation to provide 9 the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic 10 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned 11 up). The Court will not assume facts not alleged, nor will it draw unwarranted inferences. Iqbal, 12 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief [is] a 13 context-specific task that requires the reviewing court to draw on its judicial experience and 14 common sense.”). 15 Claims sounding in fraud must further meet the particularity requirements of Federal Rule 16 of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). 17 Rule 9(b) states that “[i]n alleging fraud or mistake, a party must state with particularity the 18 circumstances constituting fraud or mistake.” Rule 9(b) “requires . . . an account of the time, 19 place, and specific content of the false representations as well as the identities of the parties to the 20 misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal quotation 21 marks omitted). In other words, “[a]verments of fraud must be accompanied by ‘the who, what, 22 when, where, and how’ of the misconduct charged.” Kearns, 567 F.3d at 1124. Furthermore, 23 “Rule 9(b) does not allow a complaint to . . . lump multiple defendants together but require[s] 24 plaintiffs to differentiate their allegations when suing more than one defendant.” Destfino v. 25 Reiswig, 630 F.3d 952, 958 (9th Cir. 2011) (citation and quotation marks omitted) 26 Leave to amend must be granted to a pro se litigant unless it is clear that the complaint’s 27 deficiencies cannot be cured by amendment. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1 III. DISCUSSION 2 As demonstrated by many of the motions to dismiss, plaintiff’s entire FAC can be 3 dismissed for violating Federal Rule of Civil Procedure 8(a). That rule provides that a “pleading 4 that states a claim for relief must contain . . . a short and plain statement of the claim.” Fed. R. 5 Civ. P. 8(a). Courts routinely dismiss complaints such as plaintiffs that are convoluted and 6 difficult to follow for failure to comply with that rule. See, e.g., McHenry v. Renne, 84 F.3d 1172, 7 1179-80 (9th Cir. 1996) (“Prolix, confusing complaints such as the ones plaintiffs filed in this case 8 impose unfair burdens on litigants and judges.”); Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 9 2013) (recognizing that complaints can be dismissed for failure to comply with Rule 8(a) and 10 noting the plaintiff’s complaint had been dismissed for failure to comply); Nevijel v. North Coast 11 Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming dismissal where complaint was 12 “verbose, confusing and almost entirely conclusory”). 13 Notably, plaintiff is well aware of this rule. In 2018, plaintiff filed a similar complaint 14 spanning ninety defendants, approximately ten years, three states, and one foreign country. Her 15 complaint was dismissed against all defendants. See, e.g., Cooney v. City of San Diego, Case No. 16 18-cv-01860-JSW, 2019 WL 11340107 (N.D. Cal. March 18, 2019). The Ninth Circuit 17 subsequently dismissed her appeal as frivolous. Cooney v. City of San Diego, No. 19-16180, 2019 18 U.S. App. LEXIS 31368 (9th Cir. Oct. 21, 2019). Disagreeing with the outcome of that case, 19 plaintiff now seeks to attack it through subsequent litigation, claiming that it contributed to the 20 fraud on the court. Plaintiff is precluded from relitigating her claims. “Res judicata, also known 21 as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could 22 have been raised in the prior action . . . whenever there is (1) an identity of claims, (2) a final 23 judgment on the merits, and (3) identity or privity between parties.” Owens v. Kaiser Found. 24 Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (cleaned up). “Suits involve the same claim 25 (or cause of action) when they aris[e] from the same transaction, or involve a common nucleus of 26 operative facts.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589, 27 1595 (2020) (cleaned up). The Court has no doubt that plaintiff’s theory of fraud on the court is 1 Even construing plaintiff’s claim liberally, her fraud on the courts claim, which the Court 2 construes as an effort to bring a RICO claim, also fails. Under federal law, civil liability can be 3 imposed on persons and organizations engaged in a “pattern of racketeering activity.” 18 U.S.C. § 4 1962(c). In general, racketeering activity includes a number of generically-specified criminal acts, 5 as well as the commission of various predicate offenses. 18 U.S.C. 1961(1). The elements of a 6 civil RICO claim are: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering 7 activity (known as ‘predicate acts’) (5) causing injury to the plaintiff’s ‘business or property.’” 8 Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996). Plaintiff must meet Rule 9(b)’s heightened 9 pleading standard to state a RICO claim. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 10 541 (9th Cir. 1989). Plaintiff does not come remotely close to meeting this heightened standard, 11 which even based upon the Court’s experience, is exacting in the context of RICO claims. 12 In any event, plaintiff’s conclusory and inconsistent allegations do not sufficiently allege 13 the existence of an enterprise. The Supreme Court has defined an associated-in-fact enterprise as 14 “a group of persons associated together for a common purpose of engaging in a course of 15 conduct.” United States v. Turkette, 452 U.S. 576, 583 (1981). “To establish the existence of 16 such an enterprise, a plaintiff must provide both ‘evidence of an ongoing organization, formal or 17 informal,’ and ‘evidence that the various associates function as a continuing unit.’” Odom v. 18 Microsoft Corp., 486 F.3d 541, 553 (9th Cir. 2007) (en banc) (citation omitted). Each defendant 19 here has engaged in disparate and independent activities spread out over years. There is simply no 20 common glue apart from plaintiff, who alleges in a sprawling fashion that she has been harmed by 21 anything and everything. 22 Furthermore, to the extent plaintiff’s FAC is premised upon various criminal theories, such 23 as obstruction of justice or perjury, there is no private right of action. See Najarro v. Wollman, 24 No. C 12-1925 PJH, 2012 WL 1945502, at *3 (N.D. Cal. May 30, 2012) (dismissing claims of 25 “obstruction of laws,” “obstruction of justice,” and “perjury” because “there is no private right of 26 action for any of those claims”) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) 27 (criminal statutes generally “provide no basis for civil liability”)). 1 simply no basis for her to state the fraud on the court theory she believes in. This is evident by 2 || years of litigation rejecting her claims. Amendment would be futile and such a dismissal is 3 appropriate even as to defendants that have yet to appear due to lack of service. See, e.g., 4 Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802 (9th Cir. 1995) (“We 5 have upheld dismissal with prejudice in favor of a party which had not yet appeared, on the basis 6 || of facts presented by other defendants which had appeared.”’). 7 IV. CONCLUSION 8 In light of the foregoing, plaintiff's FAC is DISMISSED WITHOUT LEAVE TO AMEND.” 9 || Unable to state a claim, plaintiffs motion for preliminary injunction is DENIED AS MOOT. 10 This Order terminates all pending motions in the case. The Clerk is DIRECTED to close the 11 case. 12 IT Is SO ORDERED.

13 || Dated: June 6, 2022

VONNE GONFALEZ ROGERS I5 UNITED STATES DISTRICT COURT JUDGE 16

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Z 18 19 20 21 22 > Other deficiencies plague plaintiff's FAC. For instance, the dozens of judicial officers and officials that she sues are entitled to absolute judicial immunity. As to many other defendants, 93 || there is simply no nexus to this forum at all. Personal jurisdiction is lacking. The Court raised these deficiencies for plaintiff in its first order and she simply disregard them and proceeded with 94 || her frivolous claim. 25 The Court notes that a motion to set aside default was filed by pro se defendant Dominick Addario, M.D. (Dkt. No. 221.) That motion is GRANTED and he is similarly dismissed from the 26 || case. Doctor Addario was served through a CPA and his failure to respond was not culpable. There is a strong preference for resolving cases on their merits. See, e.g., Falk v. Allen, 739 F.2d 07 461, 463 (9th Cir. 1984); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009) (“As a general rule, default judgments are disfavored; cases should be decided upon their 28 merits whenever reasonably possible.”).