Washington v. Paca

• Court: District Court, E.D. California
• Decided: August 17, 2023
• Docket: 1:23-cv-00673
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PERRY KENJI WASHINGTON, Case No. 1:23-cv-00673-JLT-SKO 12 Plaintiff, FIRST SCREENING ORDER 13 v. ORDER FOR PLAINTIFF TO: 14 MARY L. PACA, et al., (1) FILE A FIRST AMENDED COMPLAINT; OR 15 Defendants. (2) NOTIFY THE COURT THAT HE 16 WISHES TO STAND ON HIS COMPLAINT 17 (Doc. 1) 18 THIRTY-DAY DEADLINE 19 ORDER DENYING MOTION FOR 20 APPOINTMENT OF COUNSEL 21 (Doc. 5) 22 23 24 Plaintiff Perry Kenji Washington, proceeding pro se and in forma pauperis, filed a 25 complaint on May 2, 2023. (Doc. 1.) Upon reviewing the complaint, the Court concludes that the 26 complaint fails to state any cognizable claims. 27 Plaintiff has the following options as to how to proceed. He may file an amended complaint, 28 which the Court will screen in due course. Alternatively, Plaintiff may file a statement with the 1 Court stating that he wants to stand on this complaint and have it reviewed by the presiding district 2 judge, in which case the Court will issue findings and recommendations to the district judge 3 consistent with this order. If Plaintiff does not file anything, the Court will recommend that the 4 case be dismissed.1 5 Also pending before the Court is Plaintiff’s motion for appointment of counsel (Doc. 5), 6 which is denied without prejudice for the reasons set forth below. 7 I. SCREENING REQUIREMENT 8 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 9 each case and shall dismiss the case at any time if the Court determines that the allegation of poverty 10 is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which 11 relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 12 28 U.S.C. § 1915(e)(2); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district 13 court has discretion to dismiss in forma pauperis complaint); Barren v. Harrington, 152 F.3d 1193 14 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). If the Court determines 15 that a complaint fails to state a claim, leave to amend may be granted to the extent that the 16 deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 17 (9th Cir. 2000) (en banc). 18 In determining whether a complaint fails to state a claim, the Court uses the same pleading 19 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and 20 plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 21 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of 22 a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 23 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A 24 complaint may be dismissed as a matter of law for failure to state a claim based on (1) the lack of 25 a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri 26 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). The plaintiff must allege a minimum

27 1 The Court observes that Plaintiff filed an addendum on May 25, 2023, in which Plaintiff appears to request placement into a witness protection program. (Doc. 4.) Because Plaintiff’s complaint is the operative pleading 28 before the Court for screening, the Court declines to address this filing at this time. 1 factual and legal basis for each claim that is sufficient to give each defendant fair notice of what 2 the plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep’t of 3 Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 4 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept 5 as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 6 (2007). The Court, however, need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. 7 at 678. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it 8 stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting 9 Twombly, 550 U.S. at 557) (internal quotation marks omitted). 10 II. SUMMARY OF PLAINTIFF’S COMPLAINT 11 Plaintiff prepared the complaint on a form titled “Complaint for a Civil Case.” (Doc. 1.) 12 The complaint lists seven Defendants: (1) Mary L. Paca, also known as Mary Barber or Mary Lynne 13 Paca (“Defendant Mary Paca”); (2) Marcus L. Paca, also known as Marcus Paca (“Defendant 14 Marcus Paca”); (3) Jeremiah Avatar Ford; (4) Robyn Ford; (5) Tony Muhammed Rucker, also 15 known as Spider (“Defendant Tony Rucker”); (6) Willie Rucker, also known as Lil Spider 16 (“Defendant Willie Rucker”); and (7) Herman Jr. Rucker. (Id. at 1–5.) Plaintiff claims Defendant 17 Mary Paca is a senior consultant, extortionist, ringleader, con artist, and prostitute. (Id. at 2.) 18 Plaintiff claims Defendant Marcus Paca is an “econ. dev.,” “mother’s Heiman,” drug dealer, 19 extortionist, and pimp. (Id.) Plaintiff claims Defendant Jeremiah Avatar Ford is a gang leader, 20 drug dealer, pimp, “asst. to mother,” police informant, or snitch. (Id. at 3.) Plaintiff claims 21 Defendant Robyn Ford is a snitch, drug dealer, murder for hire specialist, con artist, and computer 22 programmer. (Id.) 23 Under “Basis for Jurisdiction,” Plaintiff checked the box for “Federal Question.” (Doc. 1 24 at 3.) Under the heading which asks Plaintiff to list the specific federal statutes that are at issue in 25 this case, Plaintiff states Defendant Mary Paca acted as a ringleader to “oust” him out of the family. 26 (Id. at 6.) Plaintiff also lists identity theft, “RICO,” “Defendants did premeditate, and carry out,” 27 embezzlement, extortion, grand larceny, “grand theft of money left to me of amount over 100,000 28 value in grandfather’s will who is named Perry Rucker,” and “they also attempted to murder me at 1 his funeral.” (Id.) On the Civil Cover Sheet, Plaintiff checked several boxes as the nature of the 2 suit, including real property, other fraud, patent, and taxes (U.S. Plaintiff or Defendant). (Id. at 8.) 3 Plaintiff states he is a citizen of California and Defendant Mary Paca is a citizen of 4 Connecticut. (Doc. 1 at 6.) Under “Amount in Controversy,” Plaintiff states: “250k-150k in 5 property taken out of his will left to me Perry Kenji Washington his namesake. With court cost, 6 pain & injury they owe 2 million dollars total cost.” (Id. at 5.) He provides another breakdown of 7 the two million dollars amount in controversy under the “Relief” heading of the complaint: one 8 million dollars for “legal fees, attempted murder, personal injury [and] hospital fees;” and one 9 million dollars in property loss from the grandfather’s house, including “clothes, guns, jewelry, 10 furniture[,] yard equipment, cleaning supplies, chemicals from laboratory as well as product, and 11 blueprint to design & manufacture beauty supplies etc.” (Id. at 7.) 12 Plaintiff alleges Defendants committed grand larceny, attempted murder, and grand theft. 13 (Doc. 1 at 5.) Plaintiff claims Defendant Mary Paca named herself “in charge of family” after 14 Plaintiff’s grandfather Perry Rucker died, and that she hired her son, Defendant Marcus Paca, to 15 assassinate Plaintiff “along with other goons to keep anyone from hearing the reading of his will 16 [which] was a access over 1 million 500 thousand dollars.” (Id.) Plaintiff alleges Defendants have 17 since sought to have him destroyed emotionally, financially, and physically. (Id.) Plaintiff claims 18 Defendants Robyn Ford and Jeramiah Avatar Ford “have helped them in California” in efforts to 19 assassinate Plaintiff and they stole all the property from Perry Rucker. (Id.) 20 III. DISCUSSION 21 For the reasons discussed below, the Court finds that the complaint does not state any 22 cognizable claims. Plaintiff shall be provided with the legal standards that appear to apply to his 23 claims and will be granted an opportunity to file an amended complaint to correct the identified 24 deficiencies. 25 A. Rule 8 26 Rule 8 of the Federal Rules of Civil Procedure states that a complaint must contain “a short 27 and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 28 8(a)(2). Here, Plaintiff’s complaint violates Rule 8 because it does not contain a short and plain 1 statement of the claims demonstrating that he is entitled to relief. 2 Although the Federal Rules use a flexible pleading policy, Plaintiff is required to give fair 3 notice to Defendants of the basis of his claims and must allege facts that support the elements of 4 the claims plainly and succinctly. A complaint must contain sufficient factual allegations to give 5 the defendant fair notice of the claim and the grounds upon which it rests. Twombly, 550 U.S. at 6 555. A complaint is also required to contain sufficient factual content for the Court to draw the 7 reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 8 678. 9 Plaintiff does not allege any specific facts relating to Defendants Tony Rucker, Willie 10 Rucker, and Herman Jr. Rucker, and the allegations as to the remaining four Defendants are vague 11 and conclusory. In short, it is unclear to the Court how the alleged conduct by Defendants 12 establishes the claims set forth in Plaintiff’s complaint. “It is Plaintiff’s duty to articulate his 13 claim[s]—neither the Court nor the [D]efendants are required to try to decipher what claims 14 Plaintiff is asserting in the action.” Zavala v. Regiosa, No. 1:21-cv-01631-NONE-SKO, 2022 WL 15 428158, at *2 (E.D. Cal. Feb. 11, 2022). 16 To the extent Plaintiff intends to bring criminal claims against Defendants, such claims are 17 also not cognizable. None of the named Defendants appear to be “state actors” for purposes of 18 triggering liability under 42 U.S.C. § 1983. See Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 19 (9th Cir. 2006). The complaint raises a number of criminal claims, such as identity theft, 20 embezzlement, extortion, grand larceny, grand theft, and attempted murder. (See Doc. 1 at 5–6.) 21 Given that these claims appear to arise under state law, such allegations do not give rise to federal 22 claims. Furthermore, Plaintiff provides no authority for the proposition that he has a private right 23 of action to assert a violation of criminal statutes, and no such right generally exists. See Aldabe v. 24 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (holding specific criminal provisions in the United 25 States Code “provide no basis for civil liability”); Ellis v. City of San Diego, Cal., 176 F.3d 1183, 26 1189 (9th Cir. 1999) (“sections of the California Penal Code . . . do not create enforceable individual 27 rights”). Unless there is a clear congressional intent to provide a civil remedy, a plaintiff cannot 28 recover civil damages for an alleged violation of a criminal statute. Federal Sav. & Loan Ins. Corp. 1 v. Reeves, 816 F.2d 130, 138 (4th Cir. 1987) (where there is no affirmative indication that Congress 2 intended to furnish a civil remedy, no civil cause of action exists). Accordingly, the criminal claims 3 raised by Plaintiff are not cognizable. 4 In light of these deficiencies, the Court will grant Plaintiff leave to amend his complaint and 5 set forth his claims more clearly. If Plaintiff elects to amend his complaint, he must state the legal 6 basis for the claim, and identify how the facts alleged support and show that the defendant 7 committed the violation asserted as the legal basis for the claim. See Fed. R. Civ. P. 8(a). The 8 failure to do so shall result in dismissal of this action. 9 B. Legal Standards 10 In the event Plaintiff amends his complaint, the Court provides the following legal standards 11 that may be relevant to his action: 12 1. Federal Subject Matter Jurisdiction 13 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Federal courts are 14 presumptively without jurisdiction over civil actions, and the burden to establish the contrary rests 15 upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 16 (1994). Generally, there are two bases for subject matter jurisdiction: federal question jurisdiction 17 and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. 18 Pursuant to 28 U.S.C. § 1331, federal district courts have federal question jurisdiction over 19 “all civil actions arising under the Constitution, laws, or treaties of the United States.” “A case 20 ‘arises under’ federal law either where federal law creates the cause of action or ‘where the 21 vindication of a right under state law necessarily turn[s] on some construction of federal law.’” 22 Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting 23 Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983)). The presence 24 or absence of federal question jurisdiction is governed by the “well-pleaded complaint rule.” 25 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under this rule, “federal jurisdiction exists 26 only when a federal question is presented on the face of the plaintiff’s properly 27 pleaded complaint.” Id. 28 1 Pursuant to 28 U.S.C. § 1332, district courts have diversity jurisdiction only over “all civil 2 actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest 3 and costs,” and the action is between: (1) “citizens of different States;” (2) “citizens of a State and 4 citizens or subjects of a foreign state;” (3) “citizens of different States and in which citizens or subjects of a foreign state are additional parties;” and (4) “a foreign state . . . as plaintiff and citizens 5 of a State or of different States.” 6 The complaint states that federal question exists in this action, but the basis for federal 7 jurisdiction is unclear. If Plaintiff elects to amend his complaint, he must allege facts establishing 8 the existence of subject matter jurisdiction to proceed in federal court. 9 2. RICO 10 Plaintiff also lists “RICO” as a cause of action and checked the box for Racketeer Influenced 11 and Corrupt Organizations (“RICO”) on his Civil Cover Sheet. (Doc. 1 at 6, 8.) This, however, is 12 insufficient to state a claim for RICO violations, and the complaint does not sufficiently allege facts 13 supporting such a claim. 14 To state a civil RICO claim, Plaintiff “must allege (1) conduct (2) of an enterprise 15 (3) through a pattern (4) of racketeering activity (5) causing injury to [Plaintiff’s] ‘business or 16 property.’” Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir. 2001) (citing 18 U.S.C. § 1964(c)). 17 “Racketeering activity” means, inter alia, any act or threat involving murder, kidnapping, 18 gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled 19 substance or listed chemical. See 18 U.S.C. § 1961(1). A “pattern of racketeering activity” requires 20 at least two acts committed within ten years of each other. 18 U.S.C. § 1961(5). A plaintiff “must 21 also allege that the two predicate acts are related and that they amount to or pose a threat of 22 continued criminal activity.” Eric-Ellis Dyer v. Ventura Cty. Sheriff’s Dep’t, No. 2:21-cv-02339- 23 GW-PD, 2021 WL 3202437, at *8 (C.D. Cal. Apr. 26, 2021) (citing H.J. Inc. v. Northwestern Bell 24 Telephone Co., 492 U.S. 229, 240–42 (1989)). “In addition, to demonstrate injury for RICO 25 purposes, a plaintiff must show concrete financial loss rather than mere injury to an intangible 26 property interest, and personal injuries are not compensable under RICO.” Id. (citing Ove, 264 27 F.3d at 825). 28 1 Plaintiff alleges Defendant Mary Paca acted as a ringleader to “oust” Plaintiff out of the 2 family, that she hired her son, Defendant Marcus Paca, along with other Defendants to assassinate 3 Plaintiff and prevent him from hearing the reading of his grandfather’s will, and that Defendants 4 have since sought to have him destroyed emotionally, financially, and physically. (See Doc. 1 at 5 5–6.) As pleaded, these allegations are insufficient to state a RICO claim. If Plaintiff wishes to 6 pursue a RICO claim, he must set forth specific facts alleging Defendants’ conduct of an enterprise 7 through a pattern of racketeering activity, which requires at least two acts of conduct indictable 8 under enumerated criminal statutes and which caused injury to Plaintiff’s business or property. See 9 Eric-Ellis Dyer, 2021 WL 3202437, at *8. 10 3. Real Property, Fraud, Patent, and Tax Allegations 11 On the Civil Cover Sheet, Plaintiff also checked several boxes as the nature of the suit, 12 including real property, other fraud, patent, and taxes (U.S. Plaintiff or Defendant). (Doc. 1 at 8.) 13 The complaint, however, does not contain any factual allegations to describe or support such 14 claims. Accordingly, the Court finds that Plaintiff’s allegations of real property, fraud, patent, and 15 tax violations, as pleaded in the operative complaint, are conclusory and insufficient to state a 16 cognizable claims. 17 4. Supplemental Jurisdiction 18 As provided above, Plaintiff has not alleged sufficient facts to state any cognizable federal 19 cause of action. “[U]ntil and unless Plaintiff states a cognizable claim under federal law, the Court 20 will not exercise supplemental jurisdiction over his state law claims.” Flores v. Soto, No. 1:14– 21 cv–01899-SKO (PC), 2015 WL 6555096, at *5 (E.D. Cal. Oct. 28, 2015) (citing 28 U.S.C. 22 § 1367(a); Herman Fam. Revocable Tr. v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001)); see also 23 28 U.S.C. § 1367(c)(3) (the Court may decline to exercise supplemental jurisdiction over a claim 24 if it “has dismissed all claims over which it has original jurisdiction”); Acri v. Varian Assoc., Inc., 25 114 F.3d 999, 1001 (9th Cir. 1997) (“in the usual case in which all federal-law claims are eliminated 26 before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the 27 remaining state-law claims.”). Thus, at this time, the Court declines to exercise supplemental 28 jurisdiction over Plaintiff’s state law claims. 1 The Court finds that Plaintiff’s complaint, in its current form, does not adequately allege a 2 basis for federal question jurisdiction. If Plaintiff elects to amend his complaint, he must allege 3 facts establishing a cause of action “arising under” federal law in order to proceed in federal court. 4 C. Leave to Amend 5 The Court has screened Plaintiff’s complaint and finds that it fails to state any cognizable 6 claims. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “[t]he court should freely 7 give leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff with 8 time to file an amended complaint so he can provide additional factual allegations. Lopez, 203 F.3d 9 at 1130. 10 Plaintiff is granted leave to file an amended complaint within thirty days. He is cautioned 11 that an amended complaint supersedes all prior complaints filed in an action, Lacey v. Maricopa 12 Cty., 693 F.3d 896, 907 n.1 (9th Cir. 2012), and must be “complete in itself without reference to 13 the prior or superseded pleading,” Local Rule 220. Therefore, in an amended complaint, as in an 14 original complaint, each claim and the involvement of each Defendant must be sufficiently alleged. 15 The amended complaint should be clearly and boldly titled “First Amended Complaint,” 16 refer to the appropriate case number, and be an original signed under penalty of perjury. Although 17 Plaintiff has been given the opportunity to amend, it is not for the purpose of changing the nature 18 of this suit or adding unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 19 “buckshot” complaints). 20 Plaintiff has a choice on how to proceed. Plaintiff may file an amended complaint if he can 21 set forth a basis for subject matter jurisdiction such that this case may proceed in federal court. If 22 Plaintiff files an amended complaint, the Court will screen that complaint in due course. 23 Alternatively, Plaintiff may choose to stand on his complaint subject to the Court issuing findings 24 and recommendations to a district judge consistent with this order. 25 IV. MOTION FOR APPOINTMENT OF COUNSEL 26 With respect to Plaintiff’s motion for the appointment of counsel, Plaintiff does not have a 27 constitutional right to the appointment of counsel in this action. Palmer v. Valdez, 560 F.3d 965, 28 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The Court may 1 request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1), but it will do so 2 only if exceptional circumstances exist. Palmer, 560 F.3d at 970; Wilborn v. Escalderon, 789 F.2d 3 1328, 1331 (9th Cir. 1986). In making this determination, the Court must evaluate the likelihood 4 of success on the merits and the ability of Plaintiff to articulate his claims pro se in light of the 5 complexity of the legal issues involved. Palmer, 560 F.3d at 970 (citation and quotation marks 6 omitted); Wilborn, 789 F.2d at 1331. Neither consideration is dispositive, and they must be viewed 7 together. Palmer, 560 F.3d at 970; Wilborn 789 F.2d at 1331. 8 As set forth above, the complaint as currently pleaded fails to state any cognizable claims. 9 The Court cannot adequately assess the complexity of Plaintiff’s case to determine whether 10 exceptional circumstances exist that would justify seeking counsel willing to represent Plaintiff in 11 this action on a pro bono basis. Plaintiff’s motion to appoint counsel will therefore be denied 12 without prejudice subject to renewal at a later stage of this litigation. 13 V. ORDER 14 Based on the foregoing, IT IS ORDERED that: 15 1. Within thirty (30) days from the date of service of this order, Plaintiff shall either: 16 a. File a First Amended Complaint; or 17 b. Notify the Court in writing that he wishes to stand on this complaint. 18 2. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended 19 complaint “First Amended Complaint” and refer to case number 1:23-cv-00673- 20 JLT-SKO. 21 3. Failure to comply with this order may result in a recommendation that this action be 22 dismissed. 23 Plaintiff’s motion to appoint counsel (Doc. 5) is denied without prejudice. 24 IT IS SO ORDERED. 25 26 Dated: August 16, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 27