Opinion
3:23-cv-00349-JR
06-29-2023
EUGENIA K. SONG, Plaintiff, v. M. WARNER BURKE and RICK ANTLE, Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Eugenia K. Song brings this action against defendants W. Warner Burke and Rick Antle. On March 21, 2023, plaintiff's application to proceed in forma pauperis was granted, however, the Clerk of the Court was instructed not to issue process until further order of the Court due to plaintiff's failure to state a plausible claim for relief under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915(e).
On April 18, 2023, plaintiff lodged her amended complaint. She also moves for a preliminary injunction and to have this case reassigned to a different judge, on the grounds that she “has not consented to change of courtroom from the Honorable Michael Simon” and “the Defendants from Columbia University, namely Warner Burke [have been] sending messages to Judge Russo.” Pl.'s Am. Suppl. Compl. 1 (doc. 11); Pl.'s Mot. to Am./Correct Docket Entry 1 (doc. 12).
I. Failure to State a Claim
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 pleadings in the most favorable and liberal light, her amended complaint is dismissed for three reasons.
First, plaintiff's amended complaint suffers from many of the same defects as her initial complaint. In her amended complaint, plaintiff alleges that, in 2009 and 2010, she had interactions with defendants through a work environment and Ph.D. program, which eventually led to Burke using a “military tool” against her to “involuntarily terminate a student he simply did not like” and make “slanderous” allegations. Am. Compl. ¶¶ 6-22, 25, 27-31 (doc. 5). As a result of defendants' actions, plaintiff alleges further that she “was sent by ambulance to the hospital emergency, primarily at Providence St. Vincent's in Portland, Oregon, over fifty-five times in 2019.” Id. at ¶ 23. Based on these facts, plaintiff maintains that “defendants' action violated 18 U.S. Code 2255 and 28 U.S. Code 5001.” Id. at ¶ 32.
“Title 18 U.S.C. Section 2255(a) allows for civil recovery by victims of certain enumerated statutes prohibiting child molestation, exploitation, and pornography.” AMY v. Curtis, 2021 WL 1391463, *7 (N.D. Cal. Apr. 13, 2021). Thus, to state a claim under this statute, the plaintiff must, among other elements, “establish victimhood” and allege they were a minor at the time of that victimhood. Id.; see also Unknown v. Webb, 2015 WL 13914794, *3 (C.D. Cal. Apr. 16, 2015) (“[c]ourts that have addressed this issue agree” that a § 2255(a) claim “is available to any person who, as a minor, was a victim of a child pornography offense and suffered personal injury, even if the injury did not occur until the person reached the age of majority”) (collecting cases).
The remaining statute invoked by plaintiff - i.e., 28 U.S.C. § 5001 - is “an exception to the Federal Enclave Doctrine.” Andersen v. Lewis McChord Cmties. LLC, 2022 WL 874774, *3 (W.D. Wash. Mar. 24, 2022). That is, “28 U.S.C. § 5001 provides a civil action for death or injury governed by the law of the State in which the federal enclave is located . . . The statute envisions the application of the current substantive law of the surrounding state in actions for death or personal injury occurring within a federal [building or geographical area].” Id. (citation and internal quotations and emphasis omitted).
The amended complaint is not suggestive of any child molestation or exploitation, and plaintiff otherwise does not allege that she was a minor when the underlying events transpired circa 2010. She likewise does not allege that her injury occurred within a federal building or geographical area. As a result, her claims under 18 U.S.C. § 2255 and 28 U.S.C. § 5001 fail at the pleadings level. To the extent plaintiff continues to assert FOIA and RICO claims, they fail for the same reasons articulated in District Judge Simon's March 21, 2023, Order (and Magistrate Judge You's May 2, 2023, Order in plaintiff's related case (i.e., Case No. 3:23-cv-00372-YY)).
Moreover, plaintiff's claims appear to be time-barred. Although there is “no time limit for the filing of a complaint” under 18 U.S.C. § 2255, most other personal injury actions must be initiated within two to six years of the alleged violation. Even assuming the most generous of limitations periods, any claims emanating prior to March 2017 would still be time-barred. And the fact that plaintiff did not realize the full extent of her injuries until experiencing myriad hospitalizations in 2019 does not render those claims timely.
This is because the limitations period begins to accrue when the plaintiff has “a complete and present cause of action,” which means the “plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007); see also Two Rivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999) (a claim is “discovered” under federal law “when the plaintiff knows or has reason to know of the injury which is the basis of the action”). Antle and Burke's allegedly wrongful acts and plaintiff's hospitalizations are separated by years, and there does not appear to be any interplay between these events beyond plaintiff's broad and conclusory allegations surrounding Burke's “military tool” and “ticking.” See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (discrete acts “are not actionable if time barred, even when they are related to acts alleged in timely filed charges”); see also Weems v. Or. Univ. Sys., 2012 WL 4093539, *6 (D. Or. Sept. 17, 2012), aff'd, 569 Fed.Appx. 494 (9th Cir. 2014) (rejecting the plaintiff's contention that his claim was not time-barred because the full extent of his injury had yet to be discovered); Stanley v. Tr. of Cal. State Univ., 433 F.3d 1129, 1134 (9th Cir. 2006) (“[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful”) (citation and internal quotations omitted).
Second, there are no facts from which the Court could reasonably infer that venue in this District is proper. As this Judge Simon previously explained, 28 U.S.C. § 1391(b) governs venue and provides:
A civil action may be brought in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
Plaintiff's allegations specific to defendants relate to Connecticut, New York, and Washington, D.C. Am. Compl. ¶¶ 2-3, 6-32 (doc. 5). The first page of plaintiff's amended complaint expressly lists her as a resident of Dallas, Texas. Id. at pg. 1. Although she concludes, in other portions of her amended complaint, that she “is a resident of both Texas and Oregon,” the only factual allegations in support state: “Plaintiff has maintained an Oregon mobile phone area code since 1995, or nearly thirty (30) years, except for the years 2014 and 2015, or one or two years” and “[i]llicit and injurious activities occurred in many states.” Id. at ¶¶ 1, 4-5. The fact that plaintiff has maintained a cell phone with an Oregon area code (apparently while living in another state) and the allegedly wrongful activity took place in a multitude of other jurisdictions is insufficient to establish the requisite connection to the State of Oregon. See Alt. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 55-56 (2019) (if the action does not fall within one of the three categories of § 1391(b), “venue is improper, and the case must be dismissed or transferred under § 1406(a)”).
Third, plaintiff has not alleged adequate facts to establish personal jurisdiction over defendants. Federal courts ordinarily follow the state law of the forum to determine the bounds of personal jurisdiction. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (citation omitted). Under Oregon's long-arm statute, personal jurisdiction is authorized to the full extent permitted by the United States Constitution. Id. (citation omitted). The Due Process Clause of the Fourteenth Amendment, in turn, requires nonresident defendants to “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation and internal quotations omitted).
There are two types of personal jurisdiction a forum state may exercise over nonresident defendants: specific and general. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008). Where, as here, general jurisdiction appears to be lacking, a court may still exercise specific jurisdiction if the case arises out of the defendant's minimum contacts with the forum state. Int'l Shoe Co., 326 U.S. at 316; see also Daimler AG v. Bauman, 571 U.S. 117, 119 (2014) (general jurisdiction exists only if the defendant's “affiliations with the State are so ‘continuous and systematic' as to render [them] essentially at home in the forum State,” even when the cause of action has no relation to those affiliations) (quoting Goodyear Dunlop Tires Operations v. Brown, 564 U.S. 915, 919 (2011)). The plaintiff bears the burden of establishing that personal jurisdiction is proper. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).
Here, the amended complaint specifies that Burke is a resident of New York and Antle is a resident of Connecticut. Am. Compl. ¶¶ 2-3 (doc. 5). As denoted above, all of the facts surrounding their actions are alleged to have occurred in either Connecticut, New York, or Washington, D.C. Accordingly, plaintiff has not demonstrated that either defendant “purposefully direct[ed] his activities” or “perform[ed] some act by which he purposefully avail[ed] himself of the privilege of conducting activities in the forum [state],” or otherwise that her claims “arise . . . out of or relat[e] to the defendant's forum-related activities.” Schwarzenegger, 374 F.3d at 802; see also Walden v. Fiore, 571 U.S. 277, 284-85 (2014) (“the plaintiff cannot be the only link between the defendant and the forum”). For these reasons, plaintiff's amended claims against the named defendants are not viable and dismissal is warranted.
II. Preliminary Injunction
A preliminary injunction, as a matter of equitable discretion, is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter v. Natural Res. Def. Council Inc., 555 U.S. 7, 24 (2008). The party seeking a preliminary injunction must demonstrate: “(1) likely success on the merits; (2) likely irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in [its] favor; and (4) that an injunction is in the public interest.” Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (citing Winter, 555 U.S. at 20). “The elements of [this] test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
Plaintiff seeks to enjoin “Mr. Burke and anyone he authorizes . . . from engaging in illicit activities related to the contents of this court case as per Privacy Act of 1974 (5 U.S.C. § 552a) and possibly Gramm-Leach-Bliley Act (15 U.S.C. § 6803).” Pl.'s Mot. Temporary Inj. 2 (doc. 10). As addressed in Section I, plaintiff's amended complaint does not allege a plausible claim for relief, which is fatal in this context. Cf.Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015) (“[w]hen a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have the authority to issue an injunction”). Furthermore, plaintiff's motion is silent as to the Winters factors, such that she failed to carry her burden. Plaintiff's motion for a preliminary injunction should be denied.
III. Request for Reassignment
The standard for disqualification or recusal is “[w]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” United States v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir. 1997) (per curium) (citation omitted); see also 28 U.S.C. §§ 144, 455. Because the alleged prejudice must result from an extrajudicial source, a judge's prior adverse rulings generally are not sufficient cause for recusal. Liteky v. United States, 510 U.S. 540, 555 (1994) (internal citation omitted).
As denoted above, plaintiff's contentions of misconduct surround unidentified emails from certain defendants in this case and a lack of consent to case reassignment. Initially, as a general matter, the parties do not have a right to proceed before the judge of their choosing. And aside from the fact there is no truth to plaintiff's assertion - in other words, defendants have not been in contact with the Court, nor has the Court been in contact with defendants (whether concerning this case or otherwise) - a broad allegation of wrongdoing is insufficient to show reliance on an extrajudicial source or reveal a sufficiently high degree of favoritism or antagonism to make fair judgment impossible. Indeed, the Court has twice granted plaintiff leave to file an amended complaint. If plaintiff disagrees with these rulings, the more appropriate course of action would be to file objections, as detailed below, or a subsequent appeal.
IV. Undocketed Correspondences
The Court has received a number of voicemails, emails, and/or letters from plaintiff concerning her case. As plaintiff has been previously notified, such correspondences are “are not filed, are not part of any complaint or other pleading, and are not part of the case's record.” Order (doc. 14, Case No. 3:23-cv-00372-YY). Accordingly, plaintiff shall not send any further substantive case correspondences “to the court as ex parte contact (meaning contact with the court without including the other party) is not allowed.” Id.
RECOMMENDATION
For the foregoing reasons, plaintiff's amended complaint (doc. 5) should be dismissed without prejudice and the Clerk of the Court shall not issue process until further order of this Court. Plaintiff's motion for a preliminary injunction (doc. 10) and requests for disqualification (docs. 11-12) should be denied. Plaintiff is allowed 30 days from the date of the District Judge's order to file a complaint that complies with the requirements of the Federal Rules of Civil Procedure and this Findings and Recommendation. 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.