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Silver v. Wolfson

United States District Court, D. Nevada

September 30, 2019

FREDERICK O. SILVER, Plaintiff
v.
STEVEN B. WOLFSON, et al., Defendants

          ORDER (1) GRANTING MOTIONS TO DISMISS, (2) GRANTING LEAVE TO AMEND, AND (3) DENYING AS MOOT MOTIONS TO AMEND [ECF NOS. 14, 40, 83, 90, 95, 116]

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiff Frederick O. Silver filed this lawsuit seeking monetary, declaratory, and injunctive relief, claiming that the defendants violated his due process rights, violated his Fourth Amendment rights through an unreasonable seizure, and engaged in mail fraud. ECF No. 8 at 8-9. His amended complaint lists numerous statutes in the caption and request for relief. Id. at 1, 9-11. His claims arise out of his contention that he is not the father of a minor child for whom he has been ordered to pay child support. Id. at 5-7. He names as defendants the child's mother (Candice Towner), along with various Clark County officials, the Nevada Department of Health and Human Services, the Nevada Attorney General, and the U.S. Department of Health and Human Services Regional Director. Id. at 1-4.

         Several of the defendants move to dismiss. I grant the defendants' various motions to dismiss as discussed below as to each motion. Because Silver is pro se, I grant him leave to amend to correct the deficiencies identified in this order, if facts exist to do so. Because I am granting him leave to amend, I deny as moot his two pending motions for leave to amend.

         I. LEGAL STANDARD

         A properly pleaded complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). The complaint must set forth coherently “who is being sued, for what relief, and on what theory, with enough detail to guide discovery.” See, e.g., McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. To survive a motion to dismiss, a complaint must “contain[] enough facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (internal quotation marks and citation omitted).

         Silver's fraud claim must also meet Federal Rule of Civil Procedure 9(b)'s particularity requirement. “Rule 9(b) requires a party to state with particularity the circumstances constituting fraud or mistake, including the who, what, when, where, and how of the misconduct charged.” Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (quotation omitted). Additionally, “[t]he plaintiff must set forth what is false or misleading about a statement, and why it is false.” Id. (quotation omitted). In sum, the plaintiff “must provide enough detail to give [the defendants] notice of the particular misconduct which is alleged to constitute the fraud charged so that [they] can defend against the charge and not just deny that [they have] done anything wrong.” Id. at 999 (quotation omitted).

         District courts must apply a two-step approach when considering motions to dismiss. Iqbal, 556 U.S. at 679. First, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences from the complaint in the plaintiff's favor. Id. at 678; Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247-48 (9th Cir. 2013). Legal conclusions, however, are not entitled to the same assumption of truth even if cast in the form of factual allegations. Iqbal, 556 U.S. at 679; Brown, 724 F.3d at 1248. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Iqbal, 556 U.S. at 678.

         Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal quotation marks and citation omitted). When the claims have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the [district] court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         II. Ritchie and Femiano's Motion to Dismiss (ECF No. 14)

         Defendants T. Arthur Ritchie (a state family court judge) and Jane Femiano (a state family court hearing master) move to dismiss the claims against them because they cannot discern what Silver allege they have done wrong. They also argue that to the extent Silver's claims against them are based on actions they took in their judicial and quasi-judicial positions in the family court, they are absolutely immune from damages and injunctive relief. They also request that I decline to consider declaratory relief against them because that would entangle this court in the state court proceedings. Finally, they argue that to the extent Silver is challenging the state court child support decisions, the Rooker-Feldman doctrine bars his claims.

         Silver filed several responses to these defendants' motion. See, e.g., ECF Nos. 26, 29, 41, 50.[1] Silver has no meaningful response, cites without explanation various constitutional amendments and exhibits, and argues that the Nevada state court lacked jurisdiction over him because he resides in Texas. ECF Nos. 26, 29. He also argues the Rooker-Feldman doctrine does not apply because there was only a state administrative proceeding so he is not effectively appealing a state court order. ECF No. 41.

         The amended complaint identifies Ritchie as a judge in the Family Division of the Eighth Judicial District Court in Las Vegas and Femiano as a hearing master for “Clark County D.A. Family Support and/or Clark County Child Support . . . or Clark County Family Court” in Las Vegas. ECF No. 8 at 2-3. Silver alleges that he received a notice in the mail that a child support order had been entered against him “by the Clark County D.A. Family Support Division and Clark County Child Support DA Family Enforcement Support Division.” Id. at 6. Although not entirely clear from the amended complaint, Silver appears to be asserting that the child support order came out of an administrative proceeding (rather than a court proceeding) for which Femiano acted as hearing master. See Id. Silver alleges that in response to the child support order, he challenged the “Jurisdiction of the administrative hearing” and requested a jury trial in a court but “Clark County D.A. Family Support Division and Clark County Child Support DA Family Enforcement Support Division has refused to produce it.” Id.

         Silver alleges that he “received a default notice in the mail from” Ritchie. Id. at 7. In response to the default notice, he told Ritchie that there was no controversy between himself and the child's mother, that he was not the child's father, that he was invoking his right to a jury trial, and that the judge lacked personal jurisdiction over him, but “the judge still continued.” Id. at 7.

         The amended complaint sets forth three claims that Silver apparently asserts against all defendants: (1) a due process violation, (2) an unreasonable seizure violation, and (3) mail fraud. Silver also lists a host of other statutes in his request for relief and caption, including 15 U.S.C. § 1692k, 42 U.S.C. §§ 1985 and 1986, and various federal criminal statutes. Id. at 1, 10-11. Silver requests damages. ECF No. 8 at 10. He also seeks declaratory and injunctive relief with respect to Ritchie and requests that “all judgments and orders entered and signed by” Ritchie be declared void. Id. at 10.

         As a general matter, Silver's amended complaint is defective because he does not identify “who is being sued, for what relief, and on what theory, with enough detail to guide discovery.” See, e.g., Renne, 84 F.3d at 1178. Additionally, Silver alleges a fraud claim in count three. To the extent he is asserting this claim against Ritchie or Femiano, he provides no ...


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