Opinion
2:23-cv-05785-ODW-PD
08-31-2023
Joseph Scott Alter v. Mitch McConnell
CIVIL MINUTES - GENERAL
Honorable: Patricia Donahue, U.S. Magistrate Judge
Proceedings: (In Chambers) Order to Show Cause Why Plaintiff's Complaint Should Not Be Dismissed
On July 14, 2023, Joseph Scott Alter (“Plaintiff”), a California resident proceeding pro se, filed a complaint for declaratory judgment and damages against Defendant Senate Minority Leader Mitch McConnell. [Dkt. No. 1.] Plaintiff's allegations concern Senator McConnell's failure to convict and impeach former President Donald Trump. [Id. at 2, 3.] Plaintiff asserts claims for “relief for abuse of power, violations of oath of office and other allegations.” [Id. at 5.]
The Court has screened the Complaint. [Dkt. No. 1.] The Court issues this Order to Show Cause directed to Plaintiff because the face of the Complaint suggests that it is barred by sovereign immunity and that Senator McConnell is immune from suit under the Speech or Debate Clause of the United States Constitution.
Magistrate Judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
A. Standard of Review
In civil actions where the plaintiff is proceeding in forma pauperis, Congress requires district courts to dismiss the complaint “at any time” if the court determines the complaint, or any portion thereof: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 n.7 (9th Cir. 2000) (en banc). Even when a plaintiff is not proceeding in forma pauperis, Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a claim sua sponte and without notice “where the claimant cannot possibly win relief.” See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987). When a complaint clearly does not state a claim upon which the court can grant relief, a court may dismiss the case on its own (“sua sponte”), at the outset, without leave to amend. See Reed v. Lieurance, 863 F.3d 1196, 120708 (9th Cir. 2017) (affirming district court's sua sponte dismissal of claim under Fed. R. Civ. P 12(b)(6)); Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981) (district court has authority under Rule 12(b)(6) to dismiss sua sponte for failure to state a claim).
In determining whether a complaint should be dismissed at screening, the Court applies the same standard as that in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). Under that standard, “a complaint must contain sufficient factual matter, accepted as true” and viewed in the light most favorable to the nonmoving party, “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This does not require “detailed factual allegations,” but it does require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. The Court does not, however, “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) as amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001). Because Plaintiff is proceeding pro se, the Court construes the Complaint liberally. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008) (per curiam).
B. Summary of Factual Allegations and Claims
Plaintiff alleges that on January 13, 2016, Majority Leader Nancy Pelosi signed the Second impeachment of Donald Trump and forwarded it to the Senate. [Dkt. No. 1 at 3. “After the hearing was completed in the Senate, (then) Majority Leader Mitch McConnell made the case that President Trump was guilty, though [McConnell] cited the fact that President Trump (who was [President] when he was impeached in the House), was no longer the President of the United States, and therefore could not be impeached, and fellow Republican members of the Senate likewise failed to convict him based on that same ‘belief.' ” [Id.] Plaintiff alleges that “this action violated their oaths of office and was an act of brazen political brute force orchestrated in their own self-interest.” [Id.] Plaintiff alleges “they were wrong. They absolutely could have convicted the President, and as they admitted that he was guilty, they had a Constitutional Obligation to do just that.” [Id. at 4.]
The Court uses the page numbers inserted on the pleadings by the electronic docketing system.
Plaintiff asserts claims for “relief for abuse of power, violations of oath of office and other allegations.” [Id. at 5.] He alleges that “McConnell and other conspirators (Defendant(s)) have put their personal and political interests ahead of all duties required in the action that caused this case to arise.” [Id.]
Plaintiff requests the Court to, among other things, “declare that this lawsuit is protected free ‘speech' under the First Amendment and or 303 Creative v Elenis, and is entitled to Fifth Amendment due process without fear, reprisal, or penalty; that Senate Republicans were wrong about their characterization of the law, that they could have convicted, and still can convict Former President Donald Trump in the Senate; that McConnell and other Republican Senators and Members of the House who did not vote to convict were not acting in their duties to the Senate, their Oaths of office, and can or possibly should, be held to personal account, and/or impeached; and grant other relief such as a “Billion Trillion Dollars.” [Id. at 5.]
303 Creative LLC v. Elenis, __ U.S.__, 143 S.Ct. 2298 (2023).
C. Discussion
1. Senator McConnell is Immune from Suit Under the Speech or Debate Clause of the United States Constitution
Individual Members of Congress are immune from suit under the Speech or Debate Clause of the United States Constitution, for conduct that falls within the sphere of legitimate legislative activity. U.S. Const., Art. I, § 6, cl. 1; also see, e.g., Doe v. McMillan, 412 U.S. 306, 311 (1973) (the Speech or Debate Clause “protects Members [of Congress] against prosecutions that directly impinge upon or threaten the legislative process”); McCarthy v. Pelosi, 5 F.4th 34, 39 (D.C. Cir. 2021). The Speech or Debate Clause provides that “for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place.” U.S. Const. Art. I, § 6, cl. 1. The Clause aims to protect “the integrity of the legislative process by insuring the independence of individual legislators.” Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 (1975). The Supreme Court has made clear in numerous cases that under the Clause, Members of Congress have absolute immunity for all matters that fall within the “sphere of legitimate legislative activity.” Gravel v. U.S., 408 U.S. 606, 625 (1972); Eastland, 421 U.S. at 501. Immunity for legislative acts reinforces the separation of powers by protecting the independence of Congress and “prevent[ing] intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.” Gravel, 408 U.S. at 617. 681 (1966) (same).
Plaintiff's allegations concern Senator McConnell's failure to convict and impeach former President Donald Trump. [See Dkt. No. 1 at 2, 3.] Plaintiff alleges that Senator McConnell and Senate Republicans were “wrong about their characterization of the law, that they could have convicted, and still can convict Former President Donald Trump in the Senate” and that McConnell and other Republican Senators and Members of the House who did not vote to convict were not acting in their duties to the Senate, their Oaths of office, and can or possibly should, be held to personal account, and/or impeached.” [Id. at 5.] The Speech and Debate Clause recognizes speech, voting and other legislative acts as exempt from liability. Accordingly, Senator Mitch McConnell under the Speech and Debate Clause of the U.S. Constitution is immune from suit.
2. Plaintiff's Claims Appear Barred by the Doctrine of Sovereign Immunity
Plaintiff's claims against Senator Mitch McConnell appear barred by the doctrine of sovereign immunity. It is well settled that the United States, as sovereign, is immune from suit unless it waives immunity and consents to be sued. U.S. v. Sherwood, 312 U.S. 584, 586 (1941); see FDIC v. Meyer, 510 U.S. 471, 475 (1994). A waiver of the federal government's sovereign immunity “cannot be implied but must be unequivocally expressed.” U.S. v. Mitchell, 445 U.S. 535, 538 (1980). Any such waiver will be “strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996).
In general, agencies and officers of the United States of America cannot be sued unless Congress has waived the sovereign immunity of the United States. Munns v. Kerry, 782 F.3d 402, 412 (9th Cir. 2015). “[A]ny waiver must be unequivocally expressed in statutory text ... and will not be implied.” Id. (citation omitted; alteration and ellipsis in original). The plaintiff bears the burden of establishing the existence of such a waiver, absent which “courts have no subject matter jurisdiction over cases against the [federal] government.” Id. (alteration in original). The bar of sovereign immunity “applies alike to causes of action arising under acts of Congress and to those arising from some violation of rights conferred upon the citizen by the Constitution.” Lynch v. United States, 292 U.S. 571, 582 (1934) (citations omitted).
The Declaratory Judgment Act, 28 U.S.C. § 2201, does not provide a waiver of sovereign immunity. See e.g., Pine Bar Ranch LLC v. Acting Regional Director, Bureau of Indian Affairs, 2011 WL 2268480, at *2 (D. Mont. June 7, 2011); Grondal v. U.S., 682 F.Supp.2d 1203, 1218 (E.D. Wash. 2010). Likewise, the Mandamus Act, 28 U.S.C. § 1361, does not waive sovereign immunity. See Hou Hawaiians v. Cayetano, 183 F.3d 945, 947 (9th Cir. 1999); Smith v. Grimm, 534 F.2d 1346, 1353 n. 9 (9th Cir. 1976). The All Writs Act, 28 U.S.C. § 1651, also does not contain a grant of jurisdiction or a waiver of sovereign immunity. See e.g., Yapunich v. Yarlott, 2011 WL 4104879, at *2 (D. Mont. Sept. 14, 2011); Hall v. Richardson, 1997 WL 242765, at *2 (D. Ariz. Feb. 21, 1997).
Absent a waiver of sovereign immunity, Plaintiff's claims against Senator McConnell are barred and subject to dismissal.
D. Order
For the foregoing reasons, Plaintiff is ORDERED TO SHOW CAUSE why the Court should not recommend that the Complaint be dismissed for failure to state actionable claims. To discharge and satisfy this order, Plaintiff can either:
(1) File a first amended complaint (“FAC”), which would entirely supersede the Complaint, if he can cure the legal deficiencies outlined in this Order. Plaintiff is advised that a FAC would entirely replace the Complaint in this action. Any amended complaint must:
(a) be labeled “First Amended Complaint”;
(b) be complete in and of itself and not refer in any manner to prior complaints, i.e., it must include all of the claims on which Plaintiff seeks to proceed, Local Rule 15-2;
(c) contain a “short plain” statement of the claim(s) for relief, see Fed.R.Civ.P. 8(a);
(d) make each allegation “simple, concise and direct,” Fed.R.Civ.P. 8(d)(1);
(e) make allegations in numbered paragraphs, “each limited as far as practicable to a single set of circumstances,” Fed.R.Civ.P. 10(b);
(f) set forth clearly the sequence of events (including specific relevant dates) which allegedly gives rise to the claim(s) for relief, including what each defendant did and how each specific defendant's conduct injured each specific plaintiff; and
(g) not add defendants or claims without leave of court. or
(2) Voluntarily dismiss the action-without prejudice to refiling later if justified-using the attached form CV-09.
Plaintiff must do one of these things by no later than September 28, 2023. If, given the contents of this Order, Plaintiff elects not to proceed in this action, he may expedite matters by signing and returning the attached Notice of Dismissal by September 28, 2023, which will result in the voluntary dismissal of this action without prejudice.
Plaintiff is cautioned that, absent further order of the Court, his failure to timely file a First Amended Complaint or Notice of Dismissal may result in the dismissal of this action with or without prejudice on the grounds above or for failure to diligently prosecute.
Finally, the Clerk is directed to provide a Central District of California Civil Rights Complaint Form, CV-66, to Plaintiff to facilitate filing of a First Amended Complaint if he elects to proceed in that fashion.
Attachments:
--Notice of Voluntary Dismissal (CV-09)
--Civil Rights Complaint Form (CV-66)