Opinion
Case No. A04-0279 CV (JKS).
April 28, 2005
ORDER
Plaintiff Sherman Smith brings this action against a number of federal, state, and local officials, as well as some private citizens, alleging a conspiracy to violate Smith's state and federal constitutional rights, particularly his right to a jury trial in a number of state and federal criminal and civil cases. This case was originally brought in Alaska state superior court. But because Smith had joined as defendants federal officers and officials sued in their personal and official capacities for alleged acts and admissions within the course and scope of their federal authority and employment as federal officers and employees, the case was removed to this Court.
Various Defendants filed a number of motions to dismiss. In response this Court dismissed with prejudice Defendants Harold Brown, John Roberts, and H. Russel Holland in an order dated February 11, 2005. Docket No. 51. As to the rest of Defendants, the Court denied the motions to dismiss without prejudice and allowed Smith a final chance to amend his complaint to state claims cognizable in federal court. Smith has filed an amended complaint. Docket No. 53. His amended complaint has again spurred a number of motions to dismiss. Specifically, federal Defendants Mark Davis, Andrew Gifford, H. Russel Holland, John Roberts, and Geof Wilson move to have the case against them dismissed, Docket No. 54, as have State Defendants Harold M. Brown, Bruce Botelho, Kevin M. Saxby, Tony Knowles, Docket No. 55, Defendant Carol A. Brenckle, Docket No. 56, Defendants Roy Dudley, Donald Gilman, Machael Navarre, Lisa Parker, Docket No. 62, Jack M. Hession, Docket No. 63, and Defendant Cliff Eames, Docket No. 68. In apparent response to these motions to dismiss Smith has filed what he styles "Plaintiff's Opposition to the Defendant's [sic] 'Motion to Dismiss Amended Complaint as to Claims Against Federal Defendants Mark Davis, Andrew Gifford, H. Russel Holland, John Roberts and Geof Wilson' and all other future Motions to Dismiss." Docket No. 57. He also requests the Court remand this case back to state court, Docket No. 59; a request that has drawn an opposition from several Defendants, see Docket Nos. 64; 65; 66; 67. These motions are all ripe for a ruling.
As explained above, the Court has already dismissed with prejudice Judges Holland and Roberts. Docket No. 51 at 6. The Court's prior ruling is the binding law of this case.
Like Judges Holland and Roberts, the Court previously dismissed Judge Brown with prejudice. Docket No. 51 at 6. As with Judges Holland and Roberts, the Court's prior ruling is the binding law of this case.
Smith's complaint clearly invokes the federal constitution, as well as this Court's jurisdiction under 28 U.S.C. § 1331, and brings claims against former federal officials. Because federal courts have original jurisdiction for such claims, his motion for remand will be denied.
Generally, Smith alleges that Defendants "jointly and severally" have violated his right to engage in interstate commerce, his right to "not have his contract obligations and benefits impaired," his right to due process, his right to a grand jury, and his right to "freely associate with whom he chooses"; rights all secured under the United States Constitution. See Docket No. 53 at 15. He also contends that Defendants have violated his rights and "privileges and immunities secured under the Constitution of the State of Alaska, Article I, Sections 1, 3, 5, 7, 16, 18 21 and Article VIII, Sections 2, 4, 16." Id. He alleges that he suffered monetary damages, in addition to "social stigma, mental anguish, and loss of opportunity." Id.
With regard to Defendant Mark Davis, a former United States Assistant Attorney, Smith alleges that Davis "perpetuated a fraud" in a 1985 federal civil case by filing a "stipulation." Docket No. 53 at 10. As the Court's February 11 order pointed out, individuals are immune from suit based upon pleading and affidavits filed in litigation. Docket No. 51 at 4; see Briscoe v. LaHue, 460 U.S. 325, 334-35 (1983); Burns v. County of King, 883 F.2d 819, 821-23 (9th Cir. 1989). Moreover, to the extent that Davis was acting as a prosecutor in the case, he further enjoys absolute immunity. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999) ("Prosecutors engaged in traditional prosecutorial functions, those activities 'intimately associated with the judicial phase of the criminal process' are absolutely immune from suits under § 1983."). And finally, it is hard to see how any claims Smith would have relating to conduct in July 1985 would survive the applicable statutes of limitations. Accordingly, Davis will be dismissed with prejudice from this suit.
As the Government points out, § 1983 claims are limited by the applicable state personal injury statute of limitations, see Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991), which is two years in this case, Alaska Stat. § 09.10.070.
Also in connection with the 1985 civil case, Smith alleges that Defendant Geof Wilson, a former Forest Service District Ranger, prepared affidavits alleging trespass, for which a citation was later issued, and failed to approve a "plan of operations" in 1982 related to what appears to be a mining claim owned by Smith. Docket No. 53 at 11. For the reasons outlined above, Smith's allegations related to the affidavits will be dismissed and each of his claims against Wilson are beyond the statute of limitations. Wilson will be dismissed with prejudice.
As to the remaining federal Defendant, Andrew Gifford, Smith alleges that in a related criminal suit Gifford issued Smith a petty offense citation. The criminal suit is a 1990 case, putting any conduct by Gifford leading to the suit beyond the two-year statute of limitations. Gifford will be dismissed with prejudice.
Smith's conviction was eventually affirmed in an unpublished decision by the Ninth Circuit Court of Appeals. United States v. Smith, 952 F.2d 408, 1991 WL 270720 (1991).
Next, State Defendants Bruce Botelho, Kevin M. Saxby, and Tony Knowles move to have Smith's claims dismissed. As the State points out, the amended complaint fails to mention any of these Defendants in the section of the complaint outlining the factual circumstances of Smith's claims. He alleges only that these Defendants are residents of Alaska and government employees. As the Court's February 11 order outlined, to survive dismissal Smith's complaint must "identify each defendant ( who), state only the facts indicating what happened, where it happened, when it happened . . . why he believes it was done, and how it affects his (Smith's) rights." Docket No. 51 at 5. Smith's amended complaint, as to these Defendants, fails this burden. See also Fed.R.Civ.P. 8(a). Defendants Botelho, Saxby, and Knowles will be dismissed with prejudice.
Next, Carol Brenckle moves, pro se, to have Smith's claims against her dismissed. As with the State Defendants, Smith fails to mention Brenckle outside of the caption and a section alleging she is a resident of Alaska and a government employee. Brenckle will be dismissed with prejudice.
The subsequent motion to dismiss is from Defendants Donald Gilman, Michael Navarre, Lisa Parker, and Roy Dudley, all of whom were employed by the Kenai Peninsula Borough. Like many of the above Defendants, Smith makes only passing reference to Parker, alleging only that she was a government employee and that she was a resident of Alaska. Smith makes no factual allegations regarding Parker. She will be dismissed with prejudice. Similarly, Smith alleges only that Dudley, a Kenai Peninsula Borough Planning Department employee, was a resident of Alaska, a government employee, and had "CONSTITUTIONALLY MANDATED OBLIGATIONS TO THE PEOPLE AND TO THE STATE." Docket No. 53 at 5-6. Smith does not otherwise mention Dudley. Under this Court's February 11 order and the federal rules, such allegations are plainly deficient. Dudley will be dismissed with prejudice.
As to Defendants Gilman and Navarre, both former mayors of the Kenai Peninsula Borough, Smith alleges that they delayed what appears to be development plans and transfers of title related to property in which Smith had an interest. Id. at 12-13. However, aside from captioning that section with Navarre's name, Smith does not allege how Navarre was involved in the delay. Indeed, he does not mention Navarre at all. Navarre will be dismissed with prejudice. As to Gilman, Smith alleges that over the course of what appears to be some twenty plus years, beginning in the 1970s, Gilman made a number of decisions that adversely affected Smith's property interests. However, the last date to which Smith points is early 1994. Again, Smith's allegations fall beyond the two-year statute of limitations, and he provides no reason as to why he did not file suit earlier. Gilman will be dismissed with prejudice.
The Kenai Borough Defendants also point to two state statutes, namely Alaska Statutes §§ 09.65.070(d)(2) and .070(d)(3), that confer immunity on municipal officials for making decisions in the course of their official duties in defending against any state statutory or constitutional claims Smith may have made. Docket No. 62 (Mem.) at 4-9. While it is unclear the extent to which those statutes apply in federal court to defeat state claims, it is clear that they would not apply to defeat federal claims sounding in § 1983 liability. See Kimes v. Stone, 84 F.3d 1121, 1126-28 (9th Cir. 1996). In any case, given that Smith's claims are so clearly beyond the applicable statute of limitations, further analysis on this point is unnecessary.
As with many of the other Defendants described above, Smith's complaint is also deficient with regard to Defendant Jack Hession. As Hession's motion to dismiss points out, Smith alleges only that Hession is a member of "ITS PEOPLE," that he has "taken every advantage of that Constitutionally identified privilege," that he has "CONSTITUTIONALLY MANDATED OBLIGATIONS TO THE PEOPLE AND TO THE STATE," and that Hession's employer, the Sierra Club, had "nothing but ill intent for [Smith's] CREED and [Smith] himself for trying to live by it." Id. at 6, 10. These statements fail to meet the standards outlined by the Court's February 11 order and those of the federal rules, specifically Rule 8. Hession will be dismissed with prejudice. Defendant Cliff Eames points to the same reasons as Hession in moving for dismissal. Smith makes the same "allegations" with regard to Eames as Hession, indeed they are in the same paragraph. Like Hession, Smith's complaint fails as to Eames. Eames will be dismissed with prejudice.
Several final comments are in order. First, the Court has carefully laid out the procedures and standards that Smith must follow in order to outline claims cognizable in federal court. In so doing, the Court took into consideration the facts that Smith was proceeding without an attorney and that he may have a firm conviction that he has been wronged in some way. Nonetheless, litigation incurs costs both in time and money. Defendants should not be held to defend suits that are obviously legally insufficient on their face. Accordingly, Defendants Robert Baldwin, David Rhode, and William Stockwell will be dismissed with prejudice. As with the other Defendants, nowhere in the amended complaint does Smith allege conduct by these Defendants that would either put his complaint within the statute of limitations or explain why the statute should be tolled. See id. at 11-12.
Second, it does not appear that Smith is willing to follow the Court's directions. The Court, at some length, gave Smith specific direction and notice of the insufficiencies of his complaint. His amended complaint repeats those deficiencies in failing to describe legally cognizable claims linked to specific facts. It is apparent that further amendments to Smith's complaint would be futile. See generally Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir.), opinion amended by, 856 F.2d 111 (1988) (holding that district court has discretion to deny leave to amend, even if prior to responsive pleading, if amendment of plaintiff's complaint would be futile). In other words, given Smith's original and amended complaint, the Court is confident that "allegation of other facts consistent with [these pleadings] could not possibly cure the deficienc[ies]." See id. (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). Accordingly, the Clerk's Office is directed to not accept further filings from Smith outside of a notice of appeal. The Court will not accept or address a motion for reconsideration, to amend judgment, to remand, objecting to this Order, or otherwise from Smith. By the Court's count, this Order dismisses with prejudice each Defendant Smith names in this suit. Therefore, the Court will enter judgment against Smith in favor of Defendants. Should Smith be aggrieved by this Order, he may file an appeal with the Ninth Circuit and raise his objections with the appellate court.
IT IS THEREFORE ORDERED:
The motion at Docket No. 54 is GRANTED. Defendants Davis, Wilson, and Gifford are DISMISSED WITH PREJUDICE. The motion at Docket No. 55 is GRANTED. Defendants Botelho, Saxby, and Knowles are DISMISSED WITH PREJUDICE. The motion at Docket No. 56 is GRANTED. Defendant Brenckle is DISMISSED WITH PREJUDICE. The motion at Docket No. 62 is GRANTED. Defendants Gilman, Navarre, Parker, and Dudley are DISMISSED WITH PREJUDICE. The motion at Docket No. 63 is GRANTED. Defendant Hession is DISMISSED WITH PREJUDICE. The motion at Docket No. 68 is GRANTED. Defendant Eames is DISMISSED WITH PREJUDICE. The motion for remand at Docket No. 59 is DENIED. Finally, Defendants Baldwin, Rhode, and Stockwell are DISMISSED WITH PREJUDICE.