Opinion
3:24-cv-00196-AR
03-18-2024
GUS WHO MARSHALL, Plaintiff, v. STATE OF CALIFORNIA, UNITED STATES GOVERNMENT, VALLEY WATER, a State owned company, and TOWN OF LOS GATOS, Defendants.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Plaintiff Gus Who Marshall, proceeding under a pseudonym and representing himself, filed this lawsuit on January 29, 2024, alleging unspecified claims against defendants the State of California, the United States Government, Valley Water, and the Town of Los Gatos. (Compl., ECF No. 1). On February 7, 2024, the court issued an Order to Amend advising Marshall that his complaint contained numerous deficiencies, and that he must file an amended complaint correcting those deficiencies by March 7, 2024. (Order to Amend, ECF No. 4.) The court also informed Marshall that failure to do so could result in the court recommending that his lawsuit be dismissed. (Id. at 10.) Marshall filed a document on March 7 entitled “Reply Brief: Amending Complaint,” which the court construes as his Amended Complaint. (ECF No. 8.) After carefully reviewing his Amended Complaint, the court concludes that it fails to cure any of the identified deficiencies, This lawsuit should be dismissed.
DISCUSSION
In Marshall's original complaint, he alleged that his brother lives in the Town of Los Gatos, and that PG&E owns an easement that runs behind his brother's home. According to Marshall, the easement floods easily and he maintains it to minimize potential water damage. In January 2023, he was informed by a Valley Water employee that the land is owned by Valley Water, and that Valley Water later sent several legal notices to his brother. Marshall further alleged that the Town of Los Gatos has planned a pedestrian walkway near the easement on Lynn Avenue, that he has opposed the walkway at local meetings, and that proposed walkway is unsafe for children. (Compl. ECF No. 1.)
As discussed in greater detail in the Order to Amend, the court advised Marshall that his Complaint failed to set out facts establishing that this court has subject matter jurisdiction (federal question or diversity), is the proper venue, and that he failed to allege specific facts against specific defendants under any particular legal theory that satisfied Federal Rule of Civil Procedure 8. The court also instructed Marshall that he could not proceed under a pseudonym without permission, could not pursue claims on behalf of others because he is not an attorney, and that the State of California and U.S. Government are immune from suit under the Eleventh Amendment and he must show that they have waived their sovereign immunity or dismiss them as defendants. (Order to Amend, ECF No. 4.)
In his Amended Complaint, Marshall repeats his allegations concerning the disagreement with the Town of Los Gatos and Valley Water about PG&E's easement behind his brother's home and the proposed pedestrian walkway along Lynn Avenue. He again alleges that the proposed walkway is unsafe for children, that his complaints about the walkway at Town Council meetings have gone unanswered, and that he is requesting a federal investigation. (Am. Compl., ECF No. 8 at 1-9.) His new allegations (beginning at page 10), assert that he has established that § 1443 applies because “the State of California put Gus Who on their ‘Vexatious Litigant List'” in 1998, that he disqualified a divorce judge, and that Lynn Avenue needs a sidewalk. (Id. at 10.) As for the “[v]enue issue,” Marshall attests that he meant to file this action in federal court in California, but received an arrest warrant, so he “hastily filed this class action lawsuit” because it was unsafe to proceed in California. (Id. at 11.) Two photographs of the easement and a fence are attached to the Amended Complaint, as are “ex parte” documents that appear to have been filed in California and the Ninth Circuit Court of Appeals. (Id. at 17-26.) In Marshall's view, he “has presented enough evidence to show The State of California is sued under RICO ACT.” (Id. at 26.)
Confusingly, Marshall has attached a Topps baseball card of Seattle Mariners Mark Langston to his original complaint and his Amended Complaint to “help resolve the issue.” (Compl., ECF No. 1 at 13; Am. Compl., ECF No. 8 at 12.)
Marshall's Amended Complaint does not cure any of the deficiencies previously identified by the court. He has not included additional factual allegations that establish this court's subject matter jurisdiction under either federal question or diversity, and he has not included additional factual allegations that establish venue is proper in the District of Oregon. SeeIn re Ford Motor Co./Citibank (S.D.), N.A., 264 F.3d 952, 957 (9th Cir. 2001) (“The party asserting federal jurisdiction bears the burden of proving the case is properly in federal court.”). His allegations continue to involve the State of California issuing an arrest warrant, that Valley Water is harassing him by enforcing an ordinance, and that the Town of Los Gatos is proposing an unsafe pedestrian walkway. Marshall provides a California address and three of the defendants appear to be California citizens. The Amended Complaint also contains no facts showing that any of the events about which he complains occurred in Oregon, that defendants reside in Oregon, or that defendants would be subject to personal jurisdiction here. Thus, Marshall has not satisfied his burden to show that this court may hear his lawsuit.
The Amended Complaint also fails to comply with Rule 8's directive to contain a short and plain statement of his claims showing that he is entitled to relief and fails to contain any plausible inferences that defendants are liable for any misconduct. Marshall's assertion that he is suing the State of California under RICO falls woefully short of his Rule 8 obligations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Mashiri v. Epsten Grinnell &Howell, 845 F.3d 984, 988 (9th Cir. 2017) (“The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” (quotation marks omitted)).
Finally, contrary to the court's directive, Marshall continues to allege that he is bringing a class action, he has not requested or obtained the court's permission to proceed using a pseudonym, and he fails to demonstrate that the State of California and U.S. Government have waived their sovereign immunity.
In short, because Marshall was given an opportunity to correct the identified deficiencies previously, most critically - that this court has subject matter jurisdiction and is the proper venue - and he was unable to do so, the court recommends that this lawsuit be dismissed without leave to amend and that his application for IFP be denied as moot.
CONCLUSION
For the above reasons, this lawsuit should be DISMISSED WITHOUT LEAVE TO AMEND, and the Motion for IFP (ECF No. 2) should be DENIED as MOOT.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.