Opinion
2:20-cv-02269-JR
05-17-2021
ROBERT LEE ERKSINE, Plaintiff, v. ALL STATE, FEDERAL AGENCIES THAT REGULATE THE MANUFACTURE, SALE AND DISTRIBUTION OF ALCOHOL and ALL U.S. DEPARTMENT OF JUSTICE, in their individual and personal capacities, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Pro se plaintiff Robert Erksine initiated this action against all corporations and private individuals that participate in the manufacturing, sales, and distribution of alcohol. On March 22, 2021, the Court granted plaintiff’s application to proceed in forma pauperis but instructed the Clerk of the Court not to issue process until further order pursuant to 28 U.S.C. § 1915(e). In addition, the Court denied plaintiff’s request for pro bono counsel and granted leave to file an amended complaint that complies with the requirements of Fed. R. Civ. P. 8(a). For the reasons stated herein, plaintiff’s amended complaint fails to state a claim upon which relief may be granted.
DISCUSSION
Under 28 U.S.C. § 1915(e), the district court must dismiss an in forma pauperis complaint, either sua sponte or pursuant to a motion made by the opposing party, if it “is frivolous or malicious,” or “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B) ; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). To avoid dismissal under 28 U.S.C. § 1915(e), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the plaintiff need not detail all factual allegations, the complaint must nonetheless provide “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se plaintiffs do not have the benefit of legal counsel, therefore their pleadings are “held to less stringent standards” than pleadings drafted by lawyers. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011). Even construing plaintiff’s amended complaint in the most favorable and liberal light, dismissal is warranted.
Initially, plaintiff’s amended complaint is conclusory and devoid of factual support. Plaintiff generally describes alcohol’s dangerous propensities dating back to the end of prohibition “throughout the entire U.S.” Am. Compl. pg. 2 (doc. 21). Plaintiff then asserts that the legalization of alcohol caused or contributed to “all my crimes,” including “4 non-victim D.U.I.[s].” Id. at 3. As relief, plaintiff requests “2 trillion dollars in monetary damages” and a court order “mandating warning labels on all alcohol containers – U.S. wide.” Id.
It therefore remains unclear from plaintiff’s factual assertions how and when each defendant caused him harm. See McHenry v. Renne, 84 F.3d 1172, 1176-78 (9th Cir. 1996) (each averment of a pleading must be simple, concise, and direct, stating which defendant is liable for which wrong). Without such allegations it is impossible for the Court to reasonably infer that plaintiff’s claims fall within the statute of limitations or are otherwise redressable. This is especially true considering the far-ranging and vague nature of plaintiff’s allegations, dating back decades and involving several unidentified events and individuals/entities.
Moreover, to the extent the amended complaint is premised on negligence, 42 U.S.C. § 1983, or the Americans with Disabilities Act, plaintiff once again fails to plead the requisite elements. Concerning negligence, plaintiff does not allege any facts demonstrating that defendants owed him a duty, the breach of which caused some legally cognizable damage. See Brennen v. City of Eugene, 285 Or. 401, 405, 591 P.2d 719 (1979) (outlining the elements of a negligence claim under Oregon law). Regarding § 1983, plaintiff fails to allege the “violation of a right secured by the Constitution and laws of the United States and . . . that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Rather, plaintiff broadly names “all state, federal agencies” who regulate alcohol as defendants and concludes that their “consumer product violations” relating to insufficient labeling – namely, failing to warn that alcohol is “extremely addictive” and “destroys lives” – constitutes “cruel and unusual punishment.” Am. Compl. pgs. 1-2 (doc. 21). Finally, plaintiff’s invocation of the Americans with Disabilities Act is confusing since no specific facts are alleged that appear to pertain to this statute, except plaintiff’s assertion he is a person with a disability and that “consumers with mental illness” are susceptible to alcohol’s negative effects. Id.
Plaintiff also renews his request for the appointment of pro bono counsel because he is “severely mentally ill . . . with no understanding of federal law, federal rules of civil procedure or federal civil limitation.” Id. at pg. 1. As this Court previously explained, there is generally no right to counsel in a civil case; yet the court may, under “exceptional circumstances,” request pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citations omitted). In determining whether “exceptional circumstances” exist, a court considers the plaintiff’s likelihood of success on the merits and ability to articulate claims pro se in light of the complexity of the legal issues involved. Id. (citations omitted).
As addressed herein, the amended complaint suffers from many of the same deficiencies as plaintiff’s original complaint. That is, due to the sparse factual allegations regarding unidentified defendants’ actions and plaintiff’s injury, the amended complaint fails to state a plausible claim for relief in accordance with Fed. R. Civ. P. 8(a). Indeed, the Court lacks jurisdiction to preside over many of the issues raised by plaintiff, including the management of his disability outside of the courthouse. Stated differently, based on the amended complaint, plaintiff is unlikely to succeed on the merits of his claims. And plaintiff’s lack of familiarity with federal litigation does not, in and of itself, qualify as an “exceptional circumstance.” Cf. Carter v. Comm’r of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986) (pro se litigant is expected “to abide by the rules of the court in which he litigates”).
The Court nonetheless cannot conclude that plaintiff is unable to state a claim as a matter of law at this stage in the proceedings, especially in light of his pro se status. However, plaintiff has been informed of the deficiencies surrounding his pleadings, but continues to assert them without significant substantive change. As such, plaintiff is limited to one final opportunity to amend his complaint. In sum, plaintiff’s request for pro bono counsel is denied without prejudice and dismissal of the amended complaint with leave to amend is appropriate.
RECOMMENDATION
Plaintiff’s amended complaint (doc. 21) should be dismissed without prejudice. Any motion to amend the complaint must conform with the Court’s prior decisions and Rule 8(a), and be filed within 30 days of the District Judge’s order. Failure to file an amended complaint as ordered will result in the dismissal of this action with prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court’s judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party’s right to de novo consideration of the factual issues and will constitute a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.