(PS) Brosnan v. Newsom

• Court: District Court, E.D. California
• Decided: January 14, 2025
• Docket: 2:24-cv-03639
• Status: Unknown

Opinion

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4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 JOHN BROSNAN, No. 2:24-cv-03639-TLN-SCR 10 Plaintiff, 11 v. ORDER AND FINDINGS AND RECOMMENDATION 12 GAVIN NEWSOM, et al. 13 Defendants. 14 Plaintiff is proceeding pro se in this action, which was accordingly referred to the 15 undersigned pursuant to Local Rule 302(c)(21). Plaintiff has filed a motion for leave to proceed 16 in forma pauperis (“IFP”)1 and has submitted the affidavit required by that statute. See 28 U.S.C. 17 § 1915(a)(1). The motion to proceed IFP will therefore be granted. However, for the reasons 18 provided below, the Court finds Plaintiff’s complaint fails to state a claim upon which relief can 19 be granted and recommends this action be dismissed without leave to amend. 20 I. SCREENING 21 A. Legal Standard 22 The federal IFP statute requires federal courts to dismiss a case if the action is legally 23 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In 25 reviewing the complaint, the Court is guided by the requirements of the Federal Rules of Civil 26

27 1 The motion to proceed IFP was filed twice (ECF No. 5 & 8), as was a motion requesting permission for electronic filing (ECF No. 6 & 7). It is unclear why multiple copies were filed. 28 All four motions are dated 12/31/24, however two were filed on 1/2/25 and two on 1/6/25. 1 Procedure. Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short 2 and plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this 3 court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled 4 to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief 5 sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. 6 Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in 7 the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), 8 Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms. 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 11 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 12 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 13 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 14 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 15 denied, 564 U.S. 1037 (2011). 16 The court applies the same rules of construction in determining whether the complaint 17 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 18 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 19 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 20 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 21 (1972). However, the court need not accept as true conclusory allegations, unreasonable 22 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 23 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 24 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 25 556 U.S. 662, 678 (2009). 26 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 27 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has 28 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 1 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 2 678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 3 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Akhtar v. 4 Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). 5 B. The Complaint 6 Plaintiff’s complaint names as defendants, Gavin Newsom, in his official capacity as 7 Governor of California, and Robert Bonta, in his official capacity as Attorney General of 8 California. ECF No. 1 at 1. Plaintiff challenges the constitutionality of California’s Vexatious 9 Litigant Statute, California Code of Civil Procedure §§ 391-391.7, as violating his First 10 Amendment right to petition for redress of grievances. Id. at 2. Plaintiff alleges he is on the 11 vexatious litigant (“VL”) list “due to errors he made” while representing himself pro se. Id. at ¶ 12 8. Plaintiff alleges that the California State Bar routinely does not punish attorneys for errors, but 13 that pro se litigants are put on the VL list. Id. at ¶¶ 12-13. Plaintiff alleges that persons on the 14 VL list “are required to get approval prior to petitioning the Government for a redress of their 15 grievances or to hire an attorney.” Id. at ¶ 6. Plaintiff asserts that attorney fees are prohibitively 16 high for many typical households. Id. at ¶¶ 17-19. 17 Plaintiff then makes factual allegations about other litigation he has engaged in, or 18 attempted to engage in. He claims in 2020 he wanted to sue someone for stealing his $900 19 catalytic converter but he was not allowed to and the authorities would not arrest the person. Id. 20 at ¶¶ 43-46. He claims undescribed property was stolen by a certain “Surani” and he wanted to 21 sue Surani, but had to hire an attorney because he was on the VL list. Id. at ¶¶ 53-56, 72. 22 Plaintiff contends that the attorney he hired did not respond to a motion to dismiss which resulted 23 in the case being dismissed. Id. at ¶¶ 61-65. Plaintiff made a bar complaint against that attorney, 24 but the attorney was not disciplined. Plaintiff complains that attorneys should be required to have 25 malpractice insurance. Id. at ¶¶ 78-82. 26 Plaintiff contends that being on the VL list violates his First and Fourteenth Amendment 27 rights. Id. at ¶¶ 83-89. Plaintiff seeks an Order requiring the State to pay his attorney fees while 28 he is on the VL list, declare the Vexatious Litigant Statute unconstitutional, and to order all 1 attorneys to have malpractice insurance. ECF No. 1 at 9. Plaintiff also seeks $25 million dollars 2 in damages. Id. Plaintiff attaches to his complaint a 30-page 2019 report by the California State 3 Bar on the justice gap. ECF No. 1 at 10-42. 4 C. Analysis 5 Plaintiff seeks to challenge the constitutionality of California’s VL statute and argues it 6 violates his First and Fourteenth Amendment rights. The VL statute has already been challenged 7 on “numerous constitutional grounds.” See Wolfe v. George, 486 F.3d 1120, 1123 (9th Cir. 8 2007). In Wolfe, the plaintiff made several constitutional arguments including that it violated his 9 First Amendment right to petition and Fourteenth Amendment due process and equal protection 10 rights. Id. at 1124. The Ninth Circuit began by noting that the VL statute does not preclude all in 11 pro per litigation by a VL, as it “permits” a VL to file a lawsuit “if it appears that the litigation 12 has merit and has not been filed for the purpose of harassment or delay.” Id. (quoting Cal. Code 13 of Civ. P. § 391.7(b)). The Ninth Circuit stated: The California vexatious litigant statute is not unconstitutionally vague, because it 14 “give[s] ‘fair notice to those who might violate the statute.’” It is not overbroad, because 15 there is no constitutional right to file frivolous litigation. “Just as false statements are not immunized by the First Amendment right to freedom of speech, ... baseless litigation is 16 not immunized by the First Amendment right to petition.” Under the California statute, a vexatious litigant may file potentially meritorious claims not intended solely to harass or 17 delay, so the courthouse doors are not closed to him. 18 Id. at 1125 (citations omitted). 19 The Ninth Circuit also clearly addressed and rejected the Fourteenth Amendment 20 challenge: “The California statute does not violate equal protection. Frequent pro se litigants are 21 not a suspect class meriting strict scrutiny.” Id. at 1126. The Ninth Circuit additionally rejected 22 the due process argument that the VL statute created a financial barrier to accessing the courts, 23 stating, “the California vexatious litigant statute does not deprive [plaintiff] of the opportunity to 24 vindicate a fundamental right in court.” Id. 25 The Ninth Circuit has subsequently found First Amendment challenges to California’s VL 26 statute to be “foreclosed by Wolfe” and stated the argument that the statute “impermissibly chills 27 the First Amendment right to access the courts is meritless.” Sargent v. Cantil-Sakauye, 812 F. 28 1 App’x 682, 683 (9th Cir. 2020); see also Kobayashi v. Racho, 271 F. App’x 692 (9th Cir. 2008) 2 (“The district court properly dismissed for failure to state a claim [plaintiff’s] challenges to the 3 constitutionality of California’s vexatious litigant statutes because those statutes are 4 constitutional.”). 5 California’s state appellate courts agree that the VL statue is constitutional. In Caron v. 6 Cal. State Board of Pharm., 2022 WL 16943036, *11 (Cal. Ct. App. 2022), the Fourth District 7 Court of Appeal “reach[ed] the same conclusion numerous courts before us have reached: the 8 vexatious litigant statutes are constitutional.” (Internal quotation and citations omitted). The 9 Caron court also rejected an argument that the VL statute was an unconstitutional burden on 10 access rights for the indigent, stating “there is no merit to Caron’s contention that the vexatious 11 litigation statues impermissibly burden indigent litigants’ access to the court system or their right 12 to petition the government for redress.” Id. at *10; see also In re Marriage of Richards, 2023 WL 13 3243530, *9 (Cal. Ct. App. 2023) (“State and federal courts have repeatedly rejected 14 constitutional challenges to vexatious litigant statutes.”) (discussing four such cases). 15 In addition to seeking to declare the VL statute unconstitutional, Plaintiff seeks $25 16 million in damages. The only two named Defendants are Governor Newsom and Attorney 17 General Bonta and, as stated in the caption, both are sued in their “official capacity.”2 Plaintiff 18 cannot obtain damages under § 1983 against state officials sued in their official capacity. See 19 Cornel v Hawaii, 37 F.4th 527, 531 (9th Cir. 2022) (“Cornel cannot seek damages from Hawaii 20 and the parole office because they are not ‘persons’ under § 1983.”); see also Flint v. Dennison, 21 488 F.3d 816, 825 (9th Cir. 2007) (“[S]tate officials sued in their official capacities . . . . are not 22 ‘persons’ within the meaning of § 1983 and are therefore generally entitled to Eleventh 23 Amendment immunity.”). Defendants would be entitled to sovereign immunity from monetary 24 damages. See Lewis v. Clarke, 581 U.S. 155, 162 (2017) (“In an official-capacity claim, the relief 25 sought is only nominally against the official and in fact is against the official’s office and thus the 26 sovereign itself.”); see also Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995) (superintendent 27 2 See also paragraphs 23 & 24. Plaintiff also includes what appears to be a boilerplate paragraph 28 (¶ 26) about Doe defendants, but there are no specific allegations against Doe defendants. 1 of state agency sued in his official capacity was entitled to Eleventh Amendment immunity). 2 Pursuant to 28 U.S.C. § 1915(e)(2), the court “shall dismiss” the case if it determines the 3 action fails to state a claim upon which relief can be granted, or seeks monetary relief against a 4 defendant immune from such relief. As stated above, the Ninth Circuit has rejected challenges to 5 California’s vexatious litigant statute as “foreclosed” by existing precedent and “meritless.” The 6 Court finds that the complaint fails to state a claim upon which relief can be granted, and 7 impermissibly seeks monetary relief from state officials named in their official capacity. The 8 Court recommends that the action be dismissed. 9 II. AMENDING THE COMPLAINT 10 The Court has considered whether Plaintiff should be granted leave to amend. The Court 11 has liberally construed Plaintiff’s pro se complaint and considered that generally pro se litigants 12 are given an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) 13 (“[a] district court should not dismiss a pro se complaint without leave to amend unless it is 14 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”). Here, 15 granting leave to amend would be futile. See Lockheed Martin Corp. v. Network Solutions, Inc., 16 194 F.3d 980, 986 (9th Cir. 1999) (“Where the legal basis for a cause of action is tenuous, futility 17 supports the refusal to grant leave to amend.”). It is well-established in caselaw, as discussed 18 supra, that California’s vexatious litigant statute is constitutional and does not violate the First or 19 Fourteenth Amendments. Further, Defendants Newsom and Bonta, sued in their official capacity, 20 are immune from Plaintiff’s claims for monetary damages. 21 III. CONCLUSION 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s motions to proceed in forma pauperis (ECF Nos. 5 & 8) are GRANTED; 24 and 25 2. Plaintiff’s motions for permission for electronic filing (ECF No. 6 & 7) are DENIED. 26 IT IS FURTHER RECOMMENDED THAT: 27 1. Plaintiff’s complaint be dismissed without leave to amend and this case be closed. 28 These findings and recommendations are submitted to the United States District Judge 1 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen (14) 2 || days after being served with these findings and recommendations, Plaintiff may file written 3 || objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 4 | Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 5 || objections within the specified time may waive the right to appeal the District Court’s order. 6 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 7 | SOORDERED. 8 || DATED: January 14, 2025. 9 md 10 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE

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