1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Mikkel-Stanley Lamb, ) 9 ) Plaintiff, ) 10 ) No. CIV 24-028-TUC-CKJ vs. ) 11 ) ORDER ZBS Law LLP, et al., ) 12 ) Defendants. ) 13 ) 14 On January 16, 2024, Plaintiff Mikkel-Stanley Lamb ("Lamb") filed a Complaint for 15 Violation of Civil Rights (Doc. 1). Lamb has also submitted an additional document to 16 provide the Court with additional information (Doc. 7). Lamb has also filed an Application 17 to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2). 18 19 I. In Forma Pauperis 20 The Court may allow a plaintiff to proceed without prepayment of fees when it is 21 shown by affidavit that he "is unable to pay such fees[.]" 28 U.S.C. § 1915(a)(1). Lamb's 22 affidavit states his average monthly income during the past twelve months consisted of 23 disability payments of $2100. Lamb states his fixed income is from veteran disability. 24 Further, Lamb states he has $24.91 in a bank account and his total monthly expenses are 25 $1560. 26 The Court finds Lamb is unable to pay the fees and will grant the Application to 27 Proceed in District Court Without Prepaying Fees or Costs (Doc. 2). 28 1 II. Fed.R.Civ.P. 5.2 2 The applicable rule provides for privacy protection in documents filed with the Court. 3 These protections include social security numbers, taxpayer-identification numbers, dates of 4 birth, and financial account numbers. Fed.R.Civ.P. 5.2(a). The Court will direct her staff 5 to redact the exhibits to Lamb's Complaint pursuant to the rule. Further, the Court will direct 6 the Clerk of Court to docket Lamb's original exhibits under seal and to publicly file the 7 redacted document. Lamb is advised if he believes further redactions pursuant to the rule are 8 appropriate, he may submit a more-redacted document for the Court's review. 9 10 III. Caption and Parties 11 Lamb's Complaint does not appear to include all required information in the caption. 12 The applicable rule states: 13 (a) Caption; Names of Parties. Every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint 14 must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. 15 Fed.R.Civ.P. 10(a). The caption of Lamb's Complaint states only ZBS Law, LLP ("ZBS"), 16 as the Defendant. However, the body of the Complaint states other Defendants: Joseph 17 Tirello, Jr. ("Tirello"), Blythe Edmondson ("Edmondson"), Gary Cohen ("Cohen"), and the 18 Pima County Sheriffs Dept. ("PCSD") (Complaint, Doc. 1, pp. 2-3). Lamb is advised the 19 caption of a complaint must include all named defendants. 20 21 IV. Screening Order 22 This Court is required to dismiss a case if the Court determines that the allegation of 23 poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action "(i) 24 is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) 25 seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 26 1915(e)(2)(B). 27 28 1 V. Lamb's Complaint 2 Lamb's Complaint states the basis for federal court jurisdiction is a civil rights 3 violation. See 42 U.S.C. § 1983. However, instead of stating what federal constitutional or 4 statutory rights Lamb claims to have been violated, the Complaint states, "Please review 5 contract attached from Sec of State." Complaint (Doc. 1, p. 3). When provided an 6 opportunity to explain how each defendant acted under color of state or local law, Lamb left 7 that portion of the Complaint blank. Id. at 4. Similarly, when provided an opportunity to 8 state the facts underlying Lamb's claims, Lamb left that portion of the Complaint blank. Id. 9 As requested relief, Lamb states, "Appoint Judge to bring account back into Honor." Id. at 10 5. 11 The documents attached to the Complaint include what appears to be a summary of 12 factual allegations. Complaint, Attachments (Doc. 1-1, ECF pp. 2-3). Lamb alleges when 13 he received notice of Tirello "taking administrative action against the account," Lamb mailed 14 documentation to Tirello "indicating the status of the account per the sec of State." Id. 15 Tirello "ignored the documents and then presented voided contract documents to authorize 16 a non-judicial foreclosure." Id. Edmondson, representing KMS Enterprises, LLC, trespassed 17 and approached Lamb at his residence; Edmondson refused service of a Statute Staple 18 Security Instrument. Lamb received notification from the Pima County Superior Court that 19 it refused to honor "the contract per sec of State."1 Id. 20 Cohen ordered a forcible entry and detainer against Lamb's "personal property[,]" id., 21 which caused the PCSD to infiltrate: 22 a foreign jurisdiction with loaded weapons (to include an AR style rifle), bullet proof vest, and ballistic shields. They roamed outside the residential structure which is in 23 a foreign jurisdiction banging on all the doors and windows making blank threats for me to speak with them. Under duress and under the belief they would damage the 24 entry point and actively use loaded weapons, I opened the door to discuss the matter. I was met with a small group of peace officers who refused to acknowledge my status 25 and honoring foreign jurisdictions per the sec of State. 26 27 1Although not specifically stated, "the contract" appears to refer to the Statute Staple 28 Security Instrument previously referenced. 1 Id. at 2-3. The "head police office" refused to confirm Lamb's documentation and ID. Id. 2 at 3. Officers followed Lamb around the residence while he collected items before he was 3 forced to leave at gunpoint. Subsequently, the locks to the residence were changed, which 4 resulted in Lamb not having access to his belongings. Officers gave the key to KMS 5 Enterprises, LLC. 6 The Complaint Attachment states: 7 If you view the documentation on file with the sec of State, depriving access to personal property is a constitutional violation. On file with the US treasury, I 8 Mikkel-Stanley:Lamb has a 100 million dollar bond for discharge and adjustments. I would like to resolve this issue so that I can return to the quiet enjoyment of my 9 property. Upon request I can provide a proper and true registered bond to set off the account in question. 10 I Mikkel-Stanley:Lamb (Secured Party Creditor), appoints the judge assigned to this 11 case as trustee to resolve and bring this account back into honor. That includes charging all individuals who openly breached contract and dishonored the account 12 with no regards for the Laws of the Land whatsoever. This document is the preparation of the undersigned. 13 Id. at 3. 14 Also attached to the Complaint are documents that include copies of statutes, agency 15 handbook policies, the Legal Notice and Demand filed with the Secretary of State, an 16 Assignment of Limited Power of Attorney, UCC-1 and related documents, and Notices 17 Concerning Fiduciary Relationship.2 18 The Legal Notice and Demand includes the heading: "To: All State, Federal and 19 International Public Officials, THIS IS A CONTRACT IN ADMIRALTY JURISDICTION 20 THIS TITLE IS FOR YOUR PROTECTION." Complaint, Attachment (Doc. 1-1, ECF p.9 21 of 46). This document states: 22 Since the birth of the Undersigned, the Government has utilized the credit and future 23 earning potential of the Undersigned, establishing and operating a Private Offset Account through the use of the Vessel in Commerce, MIKKEL STANLEY LAMB© 24 TRUST without the knowledge, consent, or permission of the Undersigned acting to 25 26 2The Notices Concerning Fiduciary Relationship name Janet Yellen, et al d.b.a. Secretary of Treasury (United States) and Francisco Alicea, et al d.b.a. Secretary of Treasury 27 (United States) as fiduciaries. The signature lines of these Notices contain the typed names 28 of Janet Yellen and Francisco Alicea. 1 the detriment of the beneficiary Mikkel-Stanley: Lamb, against the basic precepts of a trust . . . 2 The Undersigned having full control of Trust revokes all permissions to the 3 Government and/or any political subdivisions/Organizations to use copyrighted TRUST name MIKKEL STANLEY LAMB© TRUST or trust in any fashion except 4 by explicit written request/order in direction otherwise . . . 5 Id. at 10 of 46. Without providing any supporting facts, the document purports to assess 6 millions of dollars in "billing costs" and "levies and liens" based on various alleged 7 "violations." Id. at 12 of 46. 8 The Legal Notice and Demand does not include any signature/acknowledgment of any 9 named Defendant showing any named Defendant agreed to the terms of the Legal Notice and 10 Demand. Rather, the documents appear to invoke legal principles (e.g., specifying the vessel 11 in commerce Lamb was created as a trust; legal notice and demand purported to be 12 acknowledged by silence and acquiescence of the Arizona Secretary of State; purported 13 contract without inclusion of specific agreement of any person/entity other than Lamb, 14 stating the failure to timely rebut the terms is agreement; right to appeal to a twenty-five 15 sovereign people Magna Carta Grand Jury; fealty is forever rebutted by counterclaim in 16 Admiralty) without any recognized authority.3 Further, other than in the summary, 17 (Complaint, Attachments (Doc. 1-1, pp. 2-3)), Defendants are not named in these documents. 18 As previously stated, Lamb has also submitted an additional document to provide the 19 Court with additional information. (Doc. 7). This document states: 20 This document is being generated to inform the judge of additional information that the undersigned believes will assist with bringing this account back into honor and to 21 22 3The Ninth Circuit has held that "sovereign citizen" arguments have "been consistently 23 and thoroughly rejected by every branch of the government for decades. Indeed[,] advancement of such utterly meritless arguments is now the basis for serious sanctions 24 imposed on civil litigants who raise them." United States v. Studley, 783 F.2d 934, 937 n. 3 (9th Cir. 1986); see also Caetano v. Kings Cnty. Sheriff, No. 1:22-CV-0261 JLT HBK, 25 2022 WL 1271344, at *3 (E.D. Cal. Apr. 28, 2022), appeal dismissed, No. 22-16067, 2022 26 WL 18358075 (9th Cir. Aug. 17, 2022) ("To the extent Plaintiff's allegations are based on a sovereign citizen ideology—in referring to his body as a "Sovereign" and a vessel—courts 27 uniformly and summarily have rejected arguments premised on such ideology as frivolous 28 and meritless."). 1 locate the breachers of the sec of State contract. Attached to this document will be an international bill of exchange that was presented to Joseph J Tirello Jr's client 2 Lakeview Loan Servicing LLC on June 26, 2023. This international bill of exchange was a written instrument that contained an unconditional order whereby the drawer 3 directs the drawee to pay a definite sum of money to the payee or to his order. Also, the international bill of exchange was payable on demand and signed by the secured 4 party of the real property. Lakeview Loan Servicing LLC dishonored the instrument presented by the undersigned with no lawful explanation on why it could not be 5 accepted other than "We don't accept Treasury Checks for Payoff'. As a Secured Party Creditor and holder in due course I Mikkel-Stanley:Lamb holds the right to 6 enforce instruments and offset/discharge accounts associated with MIKKEL STANLEY LAMB© Trust. The undersigned ask that this international bill of 7 exchange be reviewed and if there are any errors, adjustments can be made upon request. This document is the preparation of the undersigned. 8 Additional Attachment (Doc. 7, ECF p. 2 of 5). This attachment also includes an 9 "International bill of exchange (UNCITRAL Convention)" which purports to pay the United 10 States Treasury the sum of $288,984.55. Further documents indicate this "check" was 11 rejected by Loancare, a Servicelink Company. Additional Attachment (Doc. 7-1, ECF p. 4 12 of 7).4 Further, correspondence from Perry, an Arizona Foreclosure Manager of ZBS advised 13 Lamb the payoff amount for the property at 10035 E. Clark Springs Tr., Tucson, AZ 85747 14 ("Clark Springs property"), through June 1, 2023, was $305,293.04. Id. at ECF p. 6 of 7. 15 Lamb has also provided a Trustee's Deed Upon Sale for real property in Pima County, State 16 of Arizona, described as follows: 17 LOT 30, OF SAGUARO TRAILS BLOCK 4, A SUBDIVISION OF PIMA 18 COUNTY, ARIZONA ACCORDING TO THE MAP OR PLAT THEREOF OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF PIMA COUNTY, 19 ARIZONA IN DOCUMENT NUMBER 2019-3540791. AFFIRMATION AND RATIFICATION OF PLAT RECORDED FEBRUARY 10, 2020 IN DOCUMENT 20 NUMBER 2020-0410833. 21 Id. at ECF p. 7 of 7. The Trustee's Deed Upon Sale states the property was sold by duly 22 appointed Trustee Tirello, a member of the State Bar of Arizona, by public auction on 23 September 13, 2023, to Grantee KMS Enterprises, LLC. Id. 24 . . . . . 25 26 27 4Neither Lamb's Complaint nor his summary allege a date of the events at issue. 28 However, the document from LoanCare is dated June 27, 2023. 1 VI. General Requirements 2 A complaint is to contain a "short and plain statement of the claim showing that the 3 pleader is entitled to relief[.]" Rule 8(a), Fed.R.Civ.P. While Rule 8 does not demand 4 detailed factual allegations, "it demands more than an unadorned, the 5 defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 6 "Threadbare recitals of the elements of a cause of action, supported by mere conclusory 7 statements, do not suffice." Id. Especially where the pleader is pro se, the pleading should 8 be liberally construed in the interests of justice. Johnson v. Reagan, 524 F.2d 1123 (9th Cir. 9 1975). Indeed, a "complaint [filed by a pro se plaintiff] 'must be held to less stringent 10 standards than formal pleadings drafted by lawyers.'" Hebbe v. Pliler, 627 F.3d 338, 342 (9th 11 Cir. 2010), quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007), per curiam. 12 A complaint must set forth sufficient facts that serves to put defendants on notice as 13 to the nature and basis of the claim(s). Failure to name potential defendants or sufficient 14 facts to advise a defendant of the claim(s) may result in no claim(s) being presented against 15 a defendant. Furthermore, all allegations of a claim are to be set forth in numbered 16 paragraphs that should be limited to a single set of circumstances. Fed.R.Civ.P. 10(a). "Each 17 claim . . . shall be stated in a separate count . . . whenever a separation facilitates the clear 18 presentation of the matters set forth." Id. Failure to set forth claims in such a manner places 19 the onus on the court to decipher which, if any, facts support which claims, as well as to 20 determine whether a plaintiff is entitled to the relief sought. Haynes v. Anderson & 21 Strudwick, Inc., 508 F.Supp. 1303, 1307, n.1 (D.C.Va. 1981). Enforcement of this rule is 22 discretionary with the Court, but such enforcement is appropriate where it is necessary to 23 facilitate a clear presentation of the claims. See, Benoit v. Ocwen Financial Corp., Inc., 960 24 F.Supp. 287 (S.D.Fla. 1997), affirmed 162 F.3d 1177 (compliance with rule required where 25 allegations were so confusing and conclusory, claims were commingled, and impossible to 26 determine nature of claims). In other words, Lamb may not simply reference other 27 documents in a complaint and expect the Court and other parties to search for facts that may 28 1 support his claim(s); a complaint itself must set forth sufficient facts that serves to put 2 defendants on notice as to the nature and basis of the claim(s). 3 4 VII. Requirement that Action State a Claim on Which Relief Can be Granted 5 The United States Supreme Court has determined that, in order to survive a motion 6 to dismiss for failure to state a claim, a plaintiff must allege "enough facts to state a claim to 7 relief that is plausible on its facts." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 8 (2007).5 While a complaint need not plead "detailed factual allegations," the factual 9 allegations it does include "must be enough to raise a right to relief above the speculative 10 level." Id. at 555. Indeed, Fed.R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled 11 to relief "rather than a blanket assertion" of entitlement to relief. Id. at 555 n. 3. The 12 complaint "must contain something more . . . than . . . a statement of facts that merely creates 13 a suspicion [of] a legally cognizable right to action." Id. at 555. Although a motion to 14 dismiss pursuant to Fed.R.Civ.P. 12(b)(6) has not been filed in this case, the Court considers 15 these standards in screening Lamb's Complaint to determine if Lamb has "nudge[d] [his] 16 claims across the line from conceivable to plausible." Id. at 570. The Court also considers 17 that the Supreme Court has cited Twombly for the traditional proposition that "[s]pecific facts 18 are not necessary [for a pleading that satisfies Rule 8(a)(2)]; the statement need only 'give the 19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson 20 v. Pardue, 551 U.S. 89 (2007). 21 In discussing Twombly, the Ninth Circuit has stated: 22 "A claim has facial plausibility," the Court explained, "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged." 129 S.Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer 24 possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. 25 26 5The holding in Twombly explicitly abrogates the well established holding in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure 27 to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in 28 support of his claim which would entitle him to relief." 1 at 556, 127 S.Ct. 1955). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and 2 plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). 3 In sum, for a complaint to survive a motion to dismiss, the non-conclusory "factual 4 content," and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Id. 5 Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). 6 This Court must take as true all allegations of material fact and construe them in the 7 light most favorable to Lamb. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 8 2003). In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 9 416 U.S. 232, 236 (1974), overruled on other grounds, 457 U.S. 800. Nonetheless, the Court 10 does not accept as true unreasonable inferences or conclusory legal allegations cast in the 11 form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 12 1981). Furthermore, the Court is not to serve as an advocate of a pro se litigant, Noll v. 13 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in attempting to decipher a complaint. 14 15 VIII. Civil Rights Claim(s) 16 The applicable statute states, inter alia: 17 § 1983 Civil action for deprivation of rights 18 Every person who, under color of any statute, ordinance, regulation, custom, or usage, 19 of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction 20 thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in 21 equity, or other proper proceeding for redress . . . 22 42 U.S.C. § 1983. In other words, to state a civil rights claim, a plaintiff must allege a 23 violation of rights protected by the Constitution or created by federal statute proximately 24 caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 25 1418, 1420 (9th Cir. 1991). Additionally, the Supreme Court has stated "the defendant must 26 possess a purposeful, a knowing, or possibly a reckless state of mind. That is because, as we 27 have stated, 'liability for negligently inflicted harm is categorically beneath the threshold of 28 1 constitutional due process.'" Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015). Further, 2 the statute is to be construed broadly. Dennis v. Higgins, 498 U.S. 439, 443 (1991), citation 3 omitted; Valenzuela v. City of Anaheim, 6 F.4th 1098, 1102 (9th Cir. 2021). 4 5 A. Violation of Constitutional or Statutory Right(s) 6 The Complaint states the "contract attached from Sec of State" should be reviewed 7 to find out what federal constitutional or statutory right(s) Lamb is claiming were violated 8 by state officials. Complaint (Doc. 1, p.3). Lamb's Complaint does not specify what right 9 is alleged to have been violated. Civil rights violations encompass many rights, including, 10 but not limited to, free speech, religious liberty, due process, equal protection, freedom from 11 taking of property, freedom from excessive force or unreasonable search/seizure, and 12 freedom from discrimination. By merely referencing the attached contract, Lamb is placing 13 the onus on the Court to decipher which, if any, facts support a civil rights claim, as well as 14 to determine whether Lamb is entitled to the relief sought. Haynes, 508 F.Supp. at 1307, n. 15 1; see also Ali v. Scotia Grp. Mgmt. LLC, No. CV-18-00124-TUC-JGZ, 2018 WL 11242141, 16 at *1 (D. Ariz. Mar. 27, 2018). 17 Although not clearly stated in the Complaint, Lamb appears to be alleging he has a 18 property interest in the Clark Springs property. See e.g. U.S. v. James Daniel Good Real 19 Property, 510 U.S. 43, 53-4 (1993) (stating that a homeowner's "right to maintain control 20 over his home . . . is a private interest of historic and continuing importance"); Leon v. 21 Hayward Bldg. Dep't, No. 17-CV-02720-LB, 2017 WL 3232486, at *5 (N.D. Cal. July 31, 22 2017) ("We may safely assume that Mr. Leon has a constitutionally protected property 23 interest in his home."); Freeman v. F.D.I.C., 56 F.3d 1394, 1403 (D.C. Cir. 1995) (stating 24 that "[u]ndoubtedly, the Freemans have a constitutionally protected property interest in their 25 home"). 26 Therefore, Lamb may be attempting to state a claim for a Fifth Amendment Takings 27 Clause violation. "[A] property owner has a claim for a violation of the Takings Clause as 28 1 soon as a government takes his property for public use without paying for it . . . And the 2 property owner may sue the government at that time in federal court for the 'deprivation' of 3 a right 'secured by the Constitution.'" Knick v. Twp. of Scott, Pennsylvania, 588 U.S. 180, 4 189 (2019). Alternatively, Lamb may be seeking to state a claim for a due process violation. 5 Due process encompasses both substantive and procedural due process violations. "To state 6 a prima facie substantive or procedural due process claim, one must, as a threshold matter, 7 identify a liberty or property interest protected by the Constitution." United States v. 8 Guillen-Cervantes, 748 F.3d 870, 872 (9th Cir. 2014); see also Wedges/Ledges of California, 9 Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994). 10 Additionally, the deprivation of the interest/property must be by the government. 11 Nationstar Mortg. LLC v. Snowdown Homeowners Ass'n, Corp., No. 12 317CV00646MMDCBC, 2019 WL 452737, at *2 (D. Nev. Feb. 5, 2019), quoting Portman 13 v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993) (due process claim requires a 14 deprivation of interest by the government); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (as 15 to a takings claim, "there [must be] a sufficiently close nexus between the [government] and 16 the challenged action . . . so that the action of the latter may be fairly treated as that of the 17 [government] itself"). 18 19 B. Actions Under Color of State/Government Law 20 To state a violation under 42 U.S.C. § 1983, a plaintiff must allege the violative 21 conduct was committed by a government actor. Moreover, both possible violations of Due 22 Process and the Takings Clause requires allegations that the violations be by the government. 23 If Lamb fails to state a claim under 42 U.S.C. § 1983 against a government actor, this Court 24 does not have subject matter jurisdiction over this case. 28 U.S.C. § 1331 ("civil actions 25 arising under the Constitution, laws, or treaties of the United States").6 26 27 6A federal court must dismiss a civil action if at any time it determines it lacks subject 28 matter jurisdiction. Fed. R. Civ. P. 12(b)(1), (h)(3). Federal courts have limited subject 1 In this case, Lamb seeks to state claims against ZBS, Tirello, Edmondson, Cohen, and 2 PCSD. ZBS is an Arizona Domestic LLP. See Ariz. Corp. Comm., https://ecorp.azcc.gov/ 3 EntitySearch/Index (last accessed 5/23/24); Ariz. Sec. of State, https://apps.azsos.gov/ 4 apps/tntp/rd.html (last accessed 5/23/24). Tirello is an attorney with Steel, LLP, and 5 Edmonson is an attorney with Edmondson & Landon. Ariz. Bar Org., 6 https://azbar.org/for-legal-professionals/practice-tools-management/member-directory/ (last 7 access 5/23/24). It appears Tirello and Edmondson may have worked for ZBS at the time of 8 the alleged events. Cohen is a Pima County Superior Court Judge. Pima County Superior 9 Ct., https://www.sc.pima.gov/judges-courts/ (last accessed 5/23/24). PCSD is a law 10 enforcement agency. 11 Lamb appears to allege ZBS, Tirello, and Edmondson, as "officers of the court," are 12 government actors. However, "[a]ttorneys performing their traditional functions will not be 13 considered state actors solely on the basis of their position as officers of the court." Angelico 14 v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir.1999); see also Hutcherson v. Smith, 15 908 F.2d 243, 245 n. 2 (7th Cir.1990) (declining to hold that "any attorney working for or 16 retained by a municipality automatically satisfies the 'under color of state law' requirement 17 of 42 U.S.C. § 1983"). The Court finds ZBS, Tirello, and Edmmondson are not government 18 actors for purposes of 42 U.S.C. § 1983, the Takings Clause, or the Due Process Clause. 19 As to Cohen, who is a Superior Court judge,7 the Court advises Lamb that "[j]udges 20 are immune from damage actions for judicial acts taken within the jurisdiction of their 21 courts." Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986). This is to assure that judges may 22 23 matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). This Court presumes a civil action lies outside its limited jurisdiction and the burden to prove 24 otherwise rests on a party asserting jurisdiction exists. Id. Additionally, an opposing party 25 can never forfeit or waive a challenge to subject matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). 26 7As Cohen was appointed to the bench on January 19, 2021, more than two years prior 27 to the June 27, 2023, LoanCare document, it appears Cohen was a judge on the dates of the 28 events at issue in this case. 1 exercise their functions with independence and without fear of consequences. See Bradley 2 v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872); Randall v. Brigham, 74 U.S. 523 3 (1868). However, a "judge lacks immunity where he acts in the 'clear absence of all 4 jurisdiction' or performs an act that is not 'judicial' in nature. Ashelman, 793 F.2d at 1075, 5 citations omitted. The Ninth Circuit has stated: 6 The Supreme Court has illustrated the distinction between an act in the clear absence of jurisdiction and an act in excess of jurisdiction with this example: 7 if a probate judge, with jurisdiction over only wills and estates, should try a 8 criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other had, if a judge 9 of the criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. 10 Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1389 (9th Cir. 1987), quoting Stump v. 11 Sparkman, 435 U.S. 349, 357 n. 7 (1978). Lamb's Complaint does not include any 12 allegations that indicate a clear absence of all jurisdiction by Cohen or that he performed an 13 act that was not judicial in nature. The Court finds Cohen is entitled to judicial immunity as 14 to the claims and allegations as stated in Lamb's Complaint. 15 Lastly, as to PCSD, "[s]tate agencies that may sue and be sued are known as jural 16 entities; non-jural entities are not subject to suit." Morgan v. Arizona, 2007 WL 2808477, 17 * 8 (D.Ariz. 2007), citations omitted. An action cannot be brought against a state or county 18 agency that lacks the authority to sue and be sued. See Gotbaum ex rel. Gotbaum v. City of 19 Phoenix, 2008 WL 4628675, *7 (D.Ariz. 2008); see also Braillard v. Maricopa County, 224 20 Ariz. 481, 487, ¶ 12, 232 P.3d 1263, 1269 (App. 2010), citations omitted ("Governmental 21 entities have no inherent power and possess only those powers and duties delegated to them 22 by their enabling statutes. Thus, a governmental entity may be sued only if the legislature has 23 so provided."). 24 The Arizona Legislature has not authorized PCSD to sue or be sued. Compare A.R.S. 25 § 11-201(A)(1) (counties, through their board of supervisors, are granted authority to sue and 26 be sued). As PCSD is a non-jural entity, a civil rights claim cannot be alleged against it. See 27 e.g. Payne v. Arpaio, CV09-1195-PHX-NVW, 2009 WL 3756679, *4 (D. Ariz. 2009) (" no 28 1 Arizona statute confers [ ] power [to sue or be sued] on Maricopa County Sheriff's Office 2 . . . as [a] separate legal entit[y]"); Patterson v. Pima Cnty. Sheriff's Dep't, No. 3 CV-13-01779-TUC-RM E, 2014 WL 5792941, at *4 (D. Ariz. Nov. 6, 2014); Gotbaum, 617 4 F.Supp.2d at 886 (D. Ariz. 2011) (dismissing a city police department as a nonjural entity; 5 because associated jural entity was also sued, dismissal will not deprive plaintiffs of remedy 6 to which they are entitled); Austin v. State, CV-08-1222-PHX-LOA, 2008 WL 4368608, *5 7 (D. Ariz. 2008) (dismissing a state department of juvenile corrections as a nonjural entity); 8 Braillard, 224 Ariz. at 487, citations omitted (Governmental entities have no inherent power 9 and possess only those powers and duties delegated to them by their enabling statutes. Thus, 10 a governmental entity may be sued only if the legislature has so provided.); Loredo v. 11 Maricopa Cnty., No. 1 CA-CV 22-0259, 2023 WL 2181126, at *3 (Ariz.App. Feb. 23, 2023), 12 review denied (Aug. 22, 2023) (recognizing a plaintiff may seek "relief for the tortious acts 13 of sheriff's deputies . . . by suing the sheriff"). 14 15 C. Liability of Specific Officers 16 Although Lamb cannot state a civil rights claim against the PCSD, he may seek to 17 state 42 U.S.C. § 1983 claims against specific officers. See Balistreri v. Pacifica Police 18 Dept., 901 F.2d 696, 699 (9th Cir. 1990) (to state a claim under § 1983, a plaintiff must 19 allege the violation of a right secured by the Constitution and laws of the United States and 20 the alleged deprivation was committed by a person acting under color of state law). 21 Congress did not intend to "impose liability vicariously on [employers or supervisors] 22 solely on the basis of the existence of an employer-employee relationship with a tortfeasor." 23 Monell, 436 U.S. at 692. Supervisory personnel are not generally liable under section 1983 24 for actions of their employees under a respondeat superior theory; therefore, when a named 25 defendant holds a supervisory position, the causal link between him and the claimed 26 constitutional violation must be specifically alleged. See Jeffers v. Gomez, 267 F.3d 895, 915 27 (9th Cir.2001); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.1979). 28 1 To state a claim for supervisor liability, a plaintiff must allege facts to indicate that 2 the supervisor defendant either: (1) personally participated in the alleged deprivation of 3 constitutional rights; (2) knew of the violations and failed to act to prevent them; or (3) 4 promulgated or implemented a policy "so deficient that the policy itself 'is a repudiation of 5 constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. 6 Black, 885 F.2d 642, 646 (9th Cir.1989); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); 7 see also Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991) (supervisory liability in 8 an individual capacity requires: (1) that defendant's "own culpable action or inaction in the 9 training, supervision, or control of his subordinates" caused the constitutional injury, (2) that 10 the defendant "acquiesce[d] in the constitutional deprivations of which [the] complaint is 11 made," or (3) that his conduct showed a "reckless or callous indifference to the rights of 12 others"). 13 14 D. Government Entity Liability 15 Further, Lamb may seek to state a civil rights claim against the Pima County Sheriff. 16 However, a government entity "cannot be held liable solely because it employs a tortfeasor." 17 Monell, 436 U.S. 658, 691 (2000). The local government "itself must cause the 18 constitutional deprivation." Gilette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992), cert. 19 denied, 510 U.S. 932 (1993). Because liability of a local governmental unit must rest on its 20 actions, not the actions of its employees, a plaintiff must go beyond a respondeat superior 21 theory and demonstrate that the alleged constitutional violation was the product of a policy 22 or custom of the local governmental unit. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 23 (1989); Pembaur v. City of Cincinnati, 475 U.S. 469, 478–480 (1986). 24 To state a civil rights claim against a government entity, a plaintiff must allege the 25 requisite culpability (a "policy or custom" attributable to municipal policymakers) and the 26 requisite causation (the policy or custom as the "moving force" behind the constitutional 27 deprivation). Monell, 436 U.S. at 691–694; Gable v. City of Chicago, 296 F.3d 531, 537 (7th 28 1 Cir.2002). Additionally, a government entity "may be liable if it has a 'policy of inaction and 2 such inaction amounts to a failure to protect constitutional rights.'" Lee v. City of Los 3 Angeles, 250 F.3d 668, 681 (9th Cir.2001), quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 4 (9th Cir.1992); Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir.2007). However, 5 "[l]iability for improper custom may not be predicated on isolated or sporadic incidents; it 6 must be founded upon practices of sufficient duration, frequency and consistency that the 7 conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 8 911, 918 (9th Cir.1995), cert. denied, 520 U.S. 1117 (1997). 9 10 E. Takings Clause 11 Lamb may be attempting to state a claim for a Fifth Amendment Takings Clause 12 violation. "[A] property owner has a claim for a violation of the Takings Clause as soon as 13 a government takes his property for public use without paying for it . . . And the property 14 owner may sue the government at that time in federal court for the 'deprivation' of a right 15 'secured by the Constitution.'" Knick v. Twp. of Scott, Pennsylvania, 588 U.S. 180, 189 16 (2019); see also Bridget C.E. Dooling, Take It Past the Limit: Regulatory Takings of 17 Personal Property, 16 Fed. Cir. B.J. 445, 445 (2007) ("There are four distinct and complex 18 aspects to the Takings Clause: (i) private property, (ii) cannot be taken, (iii) for public use, 19 (iv) without just compensation."). Further, courts "use a two-step analysis to determine 20 whether a constitutional 'taking' has occurred." Bowers v. Whitman, 671 F.3d 905, 912 (9th 21 Cir. 2012). First, a court "determine[s] whether the subject matter is 'property' within the 22 meaning of the Fifth Amendment." Id. Second, a court assesses "whether there has been a 23 taking of that property, for which compensation is due." Id. 24 Lamb has not adequately alleged the government violated the Takings Clause by 25 taking Lamb's property for public use without just compensation. 26 . . . . . 27 28 1 F. Procedural Due Process 2 "The Fourteenth Amendment's Due Process Clause protects persons against 3 deprivations of life, liberty, or property [without due process of law]; and those who seek to 4 invoke its procedural protection must establish that one of these interests is at stake." 5 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Therefore, to state a claim for violation of 6 procedural due process under Section 1983, a plaintiff must allege facts showing: “(1) a 7 deprivation of a constitutionally protected liberty or property interest, and (2) a denial of 8 adequate procedural protections. Tutor–Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 9 (9th Cir. 2006), citations omitted. 10 However, the Complaint does not state any facts alleging the foreclosure of the 11 property was without adequate procedural protections. See e.g. Mullane v. Central Hanover 12 Bank & Trust Co., 339 U.S. 306, 314 (1950) (due process requires notice "reasonably 13 calculated, under all the circumstances, to apprise interested parties of the pendency of the 14 action and afford them an opportunity to present their objections"). For example, Lamb's 15 Complaint does not allege he did not receive notice of a pending foreclosure or that he did not 16 have an opportunity to present his objections. The Court recognizes, however, that Lamb's 17 summary alleges he received notice from Tirello that administrative action would be taken. 18 The summary further alleges Tirello and others ignored documentation provided by Lamb 19 and/or refused to accept documentation. The documentation referred to by Lamb includes a 20 "status of the account per the sec of State" and the "constitutionally bound Statute Staple 21 Security Instrument." 22 23 G. Substantive Due Process 24 "Substantive due process forbids the government from depriving a person of life, 25 liberty, or property in such a way that 'shocks the conscience' or 'interferes with the rights 26 implicit in the concept of ordered liberty.'" Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 27 2009), citations omitted. The theory underlying substantive due process, as distinct from 28 1 procedural due process, is that "by barring certain government actions regardless of the 2 fairness of the procedures used to implement them, it serves to prevent governmental power 3 from being 'used for purposes of oppression.'" Daniels v. Williams, 474 U.S. 327, 331 (1986), 4 quoting Den Ex Dem. Murray v. Hoboken Land & Improv. Co., 59 U.S. (18 How). 272, 277 5 (1855). 6 As summarized by another district court: 7 To state a substantive due process claim, a plaintiff must allege (1) a valid liberty or property interest, (2) which the government infringed in an arbitrary or irrational 8 manner. Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Certain rights or liberties have been deemed "fundamental," so 9 they receive greater protection. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). 10 Health Freedom Def. Fund, Inc. v. City of Hailey, Idaho, 590 F. Supp. 3d 1253, 1265–66 (D. 11 Idaho 2022). "To succeed on a substantive due-process claim, a plaintiff must plead and 12 prove official conduct that 'shocks the conscience,' rather than merely a denial of process." 13 Leen v. Thomas, 708 F. App'x 331, 332 (9th Cir. 2017); Mullins v. State of Or., 57 F.3d 789, 14 793 (9th Cir. 1995) ("Only those aspects of liberty that we as a society traditionally have 15 protected as fundamental are included within the substantive protection of the Due Process 16 Clause."). 17 Lamb's Complaint does not allege any Defendant acted in an arbitrary or irrational 18 manner. Further, it does not allege any facts showing any Defendant engaged in official 19 conduct that shocks the conscience. 20 21 IX. Dismissal with Leave to Amend 22 As the Complaint does not state a claim upon which relief may be granted, the Court 23 will dismiss the Complaint with leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 24 (9th Cir. 1987) (leave to amend is liberally granted unless absolutely clear deficiencies cannot 25 be cured by amendment). Lamb will be afforded an opportunity to amend his Complaint to 26 set forth a valid claim upon which relief may be granted. Bank v. Pitt, 928 F.2d 1108, 1112 27 (11th Cir. 1991) (if a court determines dismissal is appropriate, a plaintiff must be given at 28 1 least one chance to amend a complaint when a more carefully drafted complaint might state 2 a claim). Additionally, the Court has discussed herein the reasons for dismissal so Lamb can 3 make an intelligent decision whether to file an amended complaint. Bonanno v. Thomas, 309 4 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987). 5 Lamb is advised that all causes of action alleged in the original Complaint which are 6 not alleged in any Amended Complaint will be waived. Hal Roach Studios v. Richard Feiner 7 & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); 8 King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Further, any Amended Complaint that 9 references other documents without setting forth factual allegations in the Amended 10 Complaint itself does not sufficiently state a claim upon which relief may be granted. 11 Lamb is advised that any Amended Complaint filed by him must be retyped or 12 rewritten in its entirety and may not incorporate any part of the original complaint by 13 reference. Any Amended Complaint submitted by Lamb shall be clearly designated as an 14 Amended Complaint on the face of the document. Additionally, Lamb is advised civil pro 15 se forms, including Complaints, are available on the District of Arizona's website: 16 https://www.uscourts.gov/forms/civil-pro-se-forms. 17 18 X. Warnings to Lamb 19 A. If Lamb's address changes, Lamb must file and serve a notice of a change of 20 address in accordance with LRCiv 83.3(d). Lamb must not include a motion for other relief 21 with a notice of change of address. Failure to comply may result in dismissal of this action. 22 B. Lamb must submit an additional copy of every filing for use by the Court. See 23 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 24 to Lamb. 25 C. If Lamb fails to timely comply with every provision of this Order, including these 26 warnings, the Court may dismiss this action without further notice. See Fed.R.Civ.P. 41(b); 27 see also Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may dismiss action for 28 1 failure to comply with any order of the Court), cert. denied, 506 U.S. 915 (1992). 2 3 Accordingly, IT IS ORDERED: 4 1. The Application to Proceed in District Court Without Prepaying Fees or Costs 5 (Doc. 2) is GRANTED. 6 2. Lamb's Complaint is DISMISSED WITHOUT PREJUDICE, WITH LEAVE 7 TO AMEND. Lamb shall have until July 8, 2024, to file an Amended Complaint. 8 3. Any Amended Complaint must be retyped or rewritten in its entirety and may 9 not incorporate any part of the prior Complaint or subsequent pleadings by reference. All 10 causes of action alleged in the original complaint which are not alleged in any amended 11 complaint will be waived. Any Amended Complaint submitted by Lamb should be clearly 12 designated as an amended complaint on the face of the document. 13 4. The Clerk of Court is DIRECTED to enter a judgment of dismissal, without 14 prejudice, without further notice to Lamb, if Lamb fails to file an Amended Complaint on or 15 before July 8, 2024. 16 5. A clear, legible copy of every pleading or other document filed SHALL 17 ACCOMPANY each original pleading or other document filed with the Clerk for use by the 18 District Judge to whom the case is assigned. See L.R.Civ. 5.4. Failure to submit a copy 19 along with the original pleading or document may result in the pleading or document 20 being stricken without further notice to Lamb. 21 6. At all times during the pendency of this action, Lamb shall immediately advise 22 the Court of any change of address and its effective date. Such notice shall be captioned 23 "NOTICE OF CHANGE OF ADDRESS". The notice shall contain only information 24 pertaining to the change of address and its effective date. The notice shall not include any 25 motions for any other relief. Lamb shall serve a copy of the Notice of Change of Address on 26 all served opposing parties. Failure to file a NOTICE OF CHANGE OF ADDRESS may 27 result in the dismissal of the action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). 28 1 7. The Court's staff shall redact the exhibits to Lamb's Complaint pursuant to the 2 ||Fed.R.Civ.P. 5.2(a) and the Clerk of Court shall docket Lamb's original exhibits under seal 3 |jand shall publicly file the redacted document prepared by the Court's staff. Lamb may submit 4 ja more-redacted document for the Court's review if he feels further redactions are 5 |Ineeded/appropriate. 6 8. The Clerk of Court shall mail a copy of this Order, the redacted document, and 7 \the Complaint for Violation of Civil Rights (Non-Prisoner) form to Lamb. 8 DATED this 3rd day of June, 2024. 10 Lan ety JO Jer gereonee 11 United States Dermat Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21-