Susan Polk v. John Polk

Ninth Circuit

Susan Polk v. John Polk

667 F. App'x 651

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 18, 2016

Docket13-16584

StatusUnpublished

This text of 667 F. App'x 651 (Susan Polk v. John Polk) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Susan Polk v. John Polk, 667 F. App'x 651 (9th Cir. 2016).

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Opinion

MEMORANDUM **

Susan Polk appeals pro se the dismissal of her Racketeer Influenced and Corrupt *652 Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, and civil rights conspiracy, 42 U.S.C. § 1986, claims against various individuals who allegedly conspired to take control and liquidate for their own benefit the assets of her husband’s estate and a trust holding her real property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), and affirm.

There was no error in dismissing Polk’s RICO claims. Her complaint was filed outside of RICO’s four-year statute of limitations, and she alleges no facts supporting equitable estoppel or tolling. Grimmett v. Brown, 75 F.3d 506, 513 (9th Cir. 1996) (limiting “separate accrual rule” to “new and independent act[s] that [are] not merely a reaffirmation of a previous act”) (emphasis omitted). Polk’s claims also fail because she did not adequately allege that Defendants engaged in a pattern of “racketeering activity.” See 18 U.S.C. § 1961(1) (exhaustive list of crimes that may constitute racketeering activity).

Polk’s § 1985 claims were properly dismissed. Polk did not allege interference with any federal court proceeding, as required to state a claim under the first part of § 1985(2). Bagley v. CMC Real Estate Corp., 923 F.2d 758, 763 (9th Cir. 1991). Nor did she plausibly allege that Defendants were motivated by “class-based, invidiously discriminatory animus,” as required to state a claim under the second part of § 1985(2) and under § 1985(3). Id. (citation and internal quotation marks omitted); see also Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).

Finally, there was no abuse of discretion in denying Polk more time to amend her complaint because further amendment would have been futile. U.S. ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001).

Polk’s request for judicial notice, filed November 26, 2013, is denied as unnecessary.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM **

Susan Polk appeals pro se the dismissal of her Racketeer Influenced and Corrupt *652 Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, and civil rights conspiracy, 42 U.S.C. § 1986, claims against various individuals who allegedly conspired to take control and liquidate for their own benefit the assets of her husband’s estate and a trust holding her real property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), and affirm.

There was no error in dismissing Polk’s RICO claims. Her complaint was filed outside of RICO’s four-year statute of limitations, and she alleges no facts supporting equitable estoppel or tolling. Grimmett v. Brown, 75 F.3d 506, 513 (9th Cir. 1996) (limiting “separate accrual rule” to “new and independent act[s] that [are] not merely a reaffirmation of a previous act”) (emphasis omitted). Polk’s claims also fail because she did not adequately allege that Defendants engaged in a pattern of “racketeering activity.” See 18 U.S.C. § 1961(1) (exhaustive list of crimes that may constitute racketeering activity).

Polk’s § 1985 claims were properly dismissed. Polk did not allege interference with any federal court proceeding, as required to state a claim under the first part of § 1985(2). Bagley v. CMC Real Estate Corp., 923 F.2d 758, 763 (9th Cir. 1991). Nor did she plausibly allege that Defendants were motivated by “class-based, invidiously discriminatory animus,” as required to state a claim under the second part of § 1985(2) and under § 1985(3). Id. (citation and internal quotation marks omitted); see also Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).

Finally, there was no abuse of discretion in denying Polk more time to amend her complaint because further amendment would have been futile. U.S. ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001).

Polk’s request for judicial notice, filed November 26, 2013, is denied as unnecessary.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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