Opinion
1:20-cv-01140-NONE-JLT (PS)
07-22-2021
TIMOTHY CLEVELAND and CLEVELAND HILL ENDOWMENT, INC., Plaintiffs, v. DONALD JOHN TRUMP, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFFS' THIRD AMENDED COMPLAINT BE DISMISSED, WITHOUT PREJUDICE
(DOC. NO. 18)
Plaintiff Timothy Cleveland, proceeding pro se and in forma pauperis, filed the complaint commencing this action in the District of Nevada on August 9, 2019, against the United States Department of Agriculture and Secretary of Agriculture George Ervin Purdue. (Doc. No. 4.) This action was transferred to this district on August 17, 2020. (Doc. No. 7.) It now proceeds on plaintiffs' third amended complaint (“TAC”), filed on April 7, 2021. (Doc. No. 17.) The named plaintiffs are plaintiff Cleveland and plaintiff Cleveland Hill Endowment, Inc., a California nonprofit entity. The named defendants are Donald John Trump, defendant Perdue, Kevin Owen McCarthy, Aubrey Bettencourt, Chris Keeler, Connie Conway, John Oosterman, Thomas C. Hunton, Lyanne Mendoza, and Karen Ross. (Id. at 1.)
This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 16, 2021, the assigned magistrate judge issued findings and recommendations recommending that plaintiff's TAC be dismissed, without prejudice. (Doc. No. 18.) Those findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within thirty (30) days after service. (Id. at 7.) Plaintiff filed objections on May 17, 2021. (Doc. No. 19.)
The objections assert that the screening statute of 28 U.S.C. § 1915A(a) concerns cases brought by prisoners. (Doc. No. 19 at 3.) However, the court is also permitted to screen claims brought by plaintiffs proceeding in forma pauperis under 28 U.S.C. § 1915(e)(2). Plaintiff Cleveland is proceeding in forma pauperis, and the court must therefore “dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted[.]” 28 U.S.C. § 1915(e)(2). The pending findings and recommendations recommend that the court find that the TAC fails to state a claim on which relief may be granted.
Plaintiffs' objections discuss at length an article written by the magistrate judge and published in the legal journal Law and Contemporary Problems. (Doc. No. 19 at 4-9.) Plaintiff's objections do not address the magistrate judge's reasoning set forth in the pending findings and recommendations. Plaintiff further argues in his objections that the magistrate judge lacks knowledge or experience concerning farming or racial discrimination. (Id. at 9-10.) Again, these conclusory assertions are not objections to the legal reasoning set forth in the pending findings and recommendations .
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court concludes that the magistrate judge's findings and recommendations are supported by the record and by proper analysis. In prior screening orders, the magistrate judge provided plaintiff with the relevant legal standards governing the claims it appears he is attempting to bring in this action. Nonetheless, plaintiffs' TAC continues to rest upon many conclusory assertions, including conclusory assertions regarding alleged racial discrimination by the named defendants. The magistrate judge's recommendation of dismissal is appropriate.
The court also notes that plaintiff Cleveland Hill Endowment, Inc., appears to be proceeding pro se in this action, as no attorney has made any appearance on its behalf. Entities cannot appear pro se. Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-02 (1993) (“It has been the law for the better part of two centuries, for example, that a corporation may appear in the federal courts only through licensed counsel.”); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1996) (a non-attorney pro se plaintiff may not represent any other party); United States v. High Country Broad Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993) (“A corporation may appear in federal court only through licensed counsel.”); CLD Const. Inc. v. City of San Ramon, 120 Cal.App.4th 1141, 1145 (2004) (“[A] corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.”). Accordingly, the claims of plaintiff Cleveland Hill Endowment, Inc. must be dismissed.
In addition, the TAC references a separate lawsuit plaintiff Cleveland filed against defendant Hunton and alleges the court erred in that action. (Doc. No. 17 at 4-5.) This lawsuit is not a proper method to attack orders or the judgment of a separate lawsuit. See Mullis v. U.S. Bankr. Court for Dist. of Nev., 828 F.2d 1385, 1393 (9th Cir. 1987) (“[C]ollateral attacks on the judgments, orders, decrees or decisions of federal courts are improper.”).
The TAC's also asserts claims against defendant McCarthy related to defendant McCarthy's vote not to impeach defendant Trump. (Id. at 9-12.) Under the Constitution's Speech and Debate Clause, “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. “The Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or Senate in the performance of official duties and into the motivation of those acts.” United States v. Helstoski, 442 U.S. 477, 488 (1979) (quoting United States v. Brewster, 408 U.S. 501, 512 (1972)). The scope of the Speech or Debate Clause extends to the “act of voting.” Gravel v. United States, 408 U.S. 606, 617 (1972); accord Jenkel v. City & Cty. of San Francisco, No. C 06-2593 MHP, 2006 WL 2053502, at *8 (N.D. Cal. July 21, 2006) (dismissing claims brought against Congressperson Nancy Pelosi because plaintiffs “grievances against Congresswoman Pelosi stems from two votes cast in the House of Representatives”). Because the TAC asserts claims against defendant McCarthy based on the casting of his votes in the U.S. House of Representatives, the TAC clearly fails to state a cognizable claim against defendant McCarthy.
Finally, the TAC fails to state a claim under the Civil Rights Act because, as the findings and recommendations point out, plaintiff does not adequately allege that the allegedly unlawful conduct upon which he bases his claims was motivated by racial bias.
Accordingly, 1. The findings and recommendations issued on April 16, 2021, (Doc. No. 18), are adopted in full;
2. The third amended complaint (Doc. No. 17) is DISMISSED: and
3. The Clerk of the Court is directed to assign a district judge for the purpose of closing this case and to close this case.
IT IS SO ORDERED.