Opinion
6:22-cv-01304-MK
12-13-2022
MICHAEL SWANSON, Plaintiff, v. DEPARTMENT OF JUSTICE, et al. Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Pro Se Plaintiff Michael Ray Swanson filed this lawsuit and application to proceed in forma pauperis (“IFP”) in August 2022. See Compl., ECF No. 1; Application IFP, ECF No. 2. The Court granted Plaintiff's IFP application, but dismissed the Complaint without prejudice in October 2022. See ECF No. 8. Plaintiff timely filed an Amended Complaint. See Am. Compl., ECF No. 9. Plaintiff moved for appointment of counsel in November 2022. See Mot. Appointment Counsel, ECF Nos. 10, 11. Plaintiff file a motion for summary judgment in December 2022. See Mot. Summ. J., ECF No. 12. For the reasons that follow, Plaintiff's Amended Complaint should be DISMISSED with prejudice; Plaintiff's motion for summary judgement should therefore be DENIED as moot; and Plaintiff's motion for an appointment of counsel is DENIED.
BACKGROUND
According to the Amended Complaint, Plaintiff was exposed to toxic water while on active duty at Camp Lejeune in 1986. Am. Compl. at 4, 53. As a result, Plaintiff suffered health issues. Id. at 70. Beginning in 2014, Plaintiff filed claims with the United States Department of Veterans Affairs (“VA”), all of which were subsequently denied. Id. at 46-47, 53, 62-63, 76. Due to his health challenges, Plaintiff has suffered mental, physical, and emotional stress, as well as a loss of enjoyment of life. Id.
Plaintiff filed a series of lawsuits alleging that he was entitled to relief because of the drinking water at Camp Lejeune. Id. at 2. In February 2017, Plaintiff filed a lawsuit against the United Stated Attorney General alleging fraud. See Swanson v. Attorney General et al., 3:17-cv-00216-MO. Judge Mosman presided over and dismissed the case in July 2017. Id., ECF No. 13.
In July 2017, Plaintiff filed another lawsuit against an Assistant Attorney General, the United States Attorney General, and the United States also alleging fraud. See Swanson v. United States Attorney General, 3:17-cv-01164-MO. Judge Mosman dismissed that case in November 2018. Id., ECF No. 57.
In December 2018, Plaintiff filed a lawsuit under the Federal Tort Claims Act against a variety of defendants, including the United States and the United States Attorney General. See Swanson v. U.S. et al., 3:18-cv-02148-JR. Judge Russo presided over the case and issued a Findings and Recommendations (“F&R”) recommending dismissal that Judge Mosman adopted in January 2020. Id., ECF Nos. 36, 47.
In March 2021, Plaintiff filed a lawsuit against the United States alleging civil rights violations. See Swanson v. United States, 3:21-cv-00350-YY. Judge You presided over the case and issued an F&R recommending dismissal that Judge Mosman adopted in April 2021. Id., ECF Nos. 6, 12.
In May 2021, Plaintiff filed a lawsuit against the VA, alleging personal injury. See Swanson v. Veterans Affairs, 3:21-cv-00668-HZ. Judge Hernandez presided over and dismissed the case in May 2021. Id., ECF No. 5. In June 2021, Plaintiff filed an additional lawsuit against the VA alleging fraud. See Swanson v. Veterans Affairs, 3:21-cv-00923-HZ. Judge Hernandez also presided over and dismissed that case in August 2021. Id., ECF No. 5.
In August 2021, Plaintiff filed a lawsuit against the United States alleging personal injury. See Swanson v. United States of America, 3:21-cv-01230-AC. Judge Acosta presided over the case, and the case was dismissed in September 2021. Id., ECF No. 6.
In July 2022, Plaintiff filed a lawsuit against a variety of defendants, including the United States Congress and President Joe Biden. See Swanson v. Congress et al., 3:22-cv-00979-YY. Judge You presided over the case and issued an F&R recommending dismissal that Judge Mosman adopted in July 2022. Id., ECF Nos. 5, 8.
In his Amended Complaint, Plaintiff claims he is entitled to two-hundred and forty million dollars. Am. Compl. at 12-14, 18, 19, 21, 22, 24-26, 28, 29, 31, 34, 37, 45, 48. Plaintiff alleges that each Defendant improperly adjudicated his lawsuits, asserting that Defendants “concealed . . ., trick[ed], scheme[d], [made] false statement[s]/evidence, [and] misrepresent[ed] . . . facts” resulting in dismissals of Plaintiff's lawsuits. Id. at 2.
As a basis for this Court's jurisdiction, the Amended Complaint lists the following provisions of the United States Constitution and federal statutes: the Fifth and Fourteenth Amendments' Due Process clauses; 42 U.S.C. § 1983; 38 U.S.C. § 1131; 5 U.S.C. §§ 3331, 7311; 18 U.S.C. §§ 2381, 1001; and the United States Supreme Court's decision in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). Id. at 31-32.
DISCUSSION
I. IFP Screening
Pursuant to 28 U.S.C. § 1915(e)(2), courts must screen IFP applications and dismiss any case that is frivolous or malicious, or fails to state a claim upon which relief may be granted. In determining the sufficiency of a Pro Se complaint, the court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (in assessing whether a complaint fails to plead a claim, the court must accept all factual allegations as true); Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (allegations of material fact are taken as true and construed in the light most favorable to plaintiff).
In addition, a complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain statement of the claim showing the pleader is entitled to relief.” However,
[w]hile a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of [their] “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level ....Bell Atlantic Corp., 550 U.S. at 555 (citations altered). Moreover, the Supreme Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions-which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted-and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft, 556 U.S. at 678. In short, “a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id.
A. Analysis
Plaintiff lists as Defendants five judges in the District of Oregon: Chief Judge Hernandez, as well as Judges Acosta, Mosman, Russo, and You. Plaintiff also lists as Defendants Assistant United States Attorney (“AUSA”) Kevin Danielson, and the entirety of the Department of Justice (“DOJ”). For the reasons that follow, the Amended Complaint fails to state a cognizable claim against any of the named Defendants.
1. Judicial Immunity
Judges are absolutely immune from civil liability for their judicial acts. See Mullis v. U.S. Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir. 1987) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872) and Pierson v. Ray, 386 U.S. 547 (1967)). Judicial immunity would not apply in two narrow circumstances: (1) for nonjudicial actions; and (2) for actions, though judicial in nature, taken in complete absence of all jurisdiction. Id. at 11-12. To determine if an act is judicial in nature, courts consider whether: (1) the precise act is a normal judicial function; (2) the events occurred in the judge's chambers; (3) the controversy centered around a case then pending before the judge; and (4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity. Meek v. Cnty. of Riverside, 183 F.3d 962, 967 (9th Cir. 1999).
The first exception to the judicial immunity doctrine does not apply here. Each judge acted in their role as a judge for United States District Court for the District of Oregon. While Plaintiff alleges that the judges violated his rights under color of law, the judges plainly acted in their capacity as judicial officers when adjudicating Plaintiff's claims. The second exception to the judicial immunity doctrine also does not apply in this case. The specific allegations against each judge all concern actions within the judge's jurisdiction on a case before them in their official capacity. Meek, 183 F.3d at 967. Put differently, Plaintiff's allegations against the judges are based upon their judicial acts, such as dismissing his claims, denying his appeals, and denying motions for relief from judgment. As such, each of the judges listed in the Amended Complaint are entitled to absolute judicial immunity.
2. Department of Justice
Although Plaintiff has lists AUSA Danielson and the DOJ in the Amended Complaint, Plaintiff has failed to describe facts sufficient to demonstrate their personal involvement in a specific constitutional or statutory violation. Plaintiff has also failed to establish a causal connection between any of the Defendants' conduct and the specific harms he alleged occurred. Accordingly, the Complaint should be dismissed as to those named Defendants. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“The requisite causal connection can be established by setting in motion a series of acts by others, or by knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury.”); Ivey v. Bd. Of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (noting that although the “standard used to evaluate a motion to dismiss is a liberal one, particularly when the action has been filed Pro Se . . . [v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss”).
3. Criminal Statutes
In the Amended Complaint, Plaintiff asserts that Defendants have violated various criminal statutes under the United States Code. See Am. Compl. at 2, 4, 6, 14, 15, 22, 32, 53. However, as a private party, Plaintiff cannot bring a civil claim based on the violation of a federal criminal statute. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (explaining that criminal provisions under Title 18 of the United States Code “provide no basis for civil liability”) (citations omitted); see also Vrooman v. Armstrong, No. 3:16-cv-01109-YY, 2016 WL 6139953, at *2 (D. Or. Sept. 30, 2016) (“This court cannot resolve a criminal dispute brought by a private citizen. Criminal statutes are public in nature, prosecuted in the name of the United States.”), adopted, 2016 WL 6139924 (D. Or. Oct. 20, 2016). As such, to the extent Plaintiff seeks to invoke portions of the United States Code as a basis for this civil lawsuit, those claims fail.
B. Dismissal with Prejudice
In civil rights cases where the plaintiff appears pro se, courts must construe the pleadings liberally and must afford plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). Ordinarily, a pro se litigant is given leave to amend his or her complaint. Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623-24 (9th Cir. 1988). However, if it is “absolutely clear that the deficiencies of the complaint could not be cured by amendment,” leave to amend need not be given. Id. (internal quotation marks omitted). Furthermore, it is within “[t]he district court's discretion to deny leave to amend is particularly broad where a Plaintiff previously has amended the complaint.” World Wide Rush, LLC v. City of L.A., 606 F.3d 676, 690 (9th Cir. 2010).
Here, Plaintiff has been given a previous opportunity to state a claim and has failed to do so despite having the relevant law and complaint deficiencies explained to him. Because any amendment would be futile, the Court should exercise its discretion and dismiss the Amended Complaint with prejudice. See e.g., Delant-Cory v. Harris, 1:12-cv-00094-CL, 2012 WL 929855, at *3-5 (D. Or. Feb. 29, 2012) (recommending dismissing claims with prejudice and without leave to amend where defendant judges properly invoked judicial immunity), adopted, 2012 WL 929854 (D. Or. Mar. 19, 2012); Stone v. Van Wormer, No. 3:19-cv-00144-HZ, 2019 WL 7194565, at *4 (D. Or. Dec. 26, 2019) (dismissing with prejudice where the plaintiff had multiple opportunities to cure deficiencies).
II. Motion for Appointment of Pro Bono Counsel
There is generally no constitutional right to counsel in a civil case and a court may not “authorize the appointment of counsel to involuntary service.” See United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). A district court, however, may request an attorney to represent any person unable to afford counsel in limited circumstances. 28 U.S.C. § 1915(e)(1). The decision to appoint counsel is “within the sound discretion of the trial court and is granted only in exceptional circumstances.” Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (quotation marks and citation omitted). A finding of exceptional circumstances depends on two factors: the plaintiff's likelihood of success on the merits, and the plaintiff's ability to articulate his or her claims in light of the complexity of the legal issues involved. Id. Neither factor is dispositive and both must be viewed together before ruling on a request for counsel. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted).
The Court finds exceptional circumstances do not exist sufficient to justify appointment of counsel. See Agyeman, 390 F.3d at 1103. Critically, Plaintiff's claims lack merit, and he is therefore unlikely to succeed on the merits. Further, Plaintiff has demonstrated the ability to articulate his claims with sufficient precision in light of the legal issues involved. Plaintiff's motion for appointment of pro bono counsel (ECF Nos. 10, 11) is DENIED.
RECOMMENDATION
For the reasons explained above, the Amended Complaint (ECF No. 9) should be DISMISSED with prejudice. Given the Court's recommendation to dismiss the Amended Complaint with prejudice, Plaintiff's motion for summary judgment (ECF No. 12) should be DENIED as moot.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).