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Rose v. State

United States District Court, D. Idaho

August 15, 2016

DANA L. ROSE, Plaintiff,


          Honorable Ronald E. Bush Chief U.S. Magistrate Judge.

         Now pending before the Court are Defendant State of Idaho’s (1) Motion to Dismiss (Docket No. 3), (2) First Motion to Take Judicial Notice (Docket No. 4), (3) Motion to Declare Dana L. Rose a Vexatious Litigant (Docket No. 7), and (4) Second Request to Take Judicial Notice (Docket No. 8). Having carefully considered the record and otherwise being fully advised, the undersigned enters the following Report and Recommendation as to the first and third motions, and a Memorandum Decision and Order as to the remaining three motions.


         On December 11, 2015, United States District Judge Edward J. Lodge referred all matters to the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(A & B), Rule 72 of the Federal Rules of Civil Procedure, and Local Civil Rule 72.1. See Order of Reference (Docket No. 11).

         On January 4, 2016, Plaintiff Dana Rose responded to Judge Lodge’s Order of Reference, arguing:

Defendant Edward J. Lodge has now assigned/directed fellow defendant Ronald E. Bush, A magistrate not to have been given written permission by Dana Rose!
Defendant Edward J. Lodge DIRECTES defendant Ronald E. Bush to conduct evidentiary hearings and submit findings of fact and recommendations as to disposition back to his Court!
As a defendant Edward J. Lodge as absolutely no legal authority to direct anything!
As a required function of this court, it must request a judge in good standing from outside its borders!

         Resp. to Order of Reference (Docket No. 13) (emphasis and capitalization in original). Again, on January 12, 2016, Rose reiterated his apparent objection to Judge Lodge’s Order of Reference, arguing:

Defendant Edward J. Lodge has maliciously chosen to maintain jurisdiction, Edward J. Lodge DIRECTED Defendant Ronald E. Bush to falsify court records as he did with staff attorney Janis Dotson and B. Lynn Winmill did with Craig Durham, It appears the falsification of the documented facts has become policy!
We have a Jury Demand and a motion to set trial date, any “evidentiary” review of the documentation is to be conducted by that Jury and no one else!

Supp. Resp. to Order of Reference (Docket No. 14) (emphasis and capitalization in original). Rose’s objection is noted, but denied nonetheless.

         First, it is entirely proper for a United States district judge to refer matters to United States magistrate judges. See, e.g., 28 U.S.C. § 636(b)(1)(A & B); Fed.R.Civ.P. 72; Dist. Idaho Loc. Civ. R. 72.1. Such referrals are commonplace and, importantly, a necessary mechanism for efficiently handling civil matters despite heavy and increasing workloads. Judge Lodge’s December 11, 2015 Order of Reference aligns with these realities and, on its face, is absolutely permitted.

         Second (and more fundamentally) Rose’s objection to Judge Lodge’s Order of Reference implies that both Judge Lodge and the undersigned are somehow parties to the instant action. See supra. Rose’s Complaint and attachments, however, reveal otherwise. While Rose obliquely describes a dissatisfaction with the handling of various legal matters before different tribunals (state and federal), nowhere is there a reference to either Judge Lodge or the undersigned (beyond, simply, a reference to the “Judges of Idaho”). See Compl., p. 2 (Docket No. 1). Accordingly, Rose’s’s objections, while noted, are without merit and therefore denied.


         A. The State’s Motion to Dismiss (Docket No. 3)

         Through this action, Rose claims that the State of Idaho (the “State”) has “maliciously abus[ed] its legal process” stemming from his 1999 criminal conviction. See id. at p. 1. His Complaint contains a host of wrongs that he claims the State is responsible for: breaking and entering into his home, denying him the assistance of counsel, denying him an accurate court record, denying him the appeal process, etc. See id. at pp. 1-2. Rose claims that the “Judges of Idaho” have violated their oath of office and the terms of their employment, and have been negligent in the performance of their duties. See id. at pp. 2-4. Rose also claims that Idaho’s “department of corrections has violated access to courts.” See id. Rose ultimately asks this Court to void his 1999 criminal judgment of conviction and seeks an excess of $100 million. See id. at p. 4.

         The State now moves to dismiss Rose’s Complaint, arguing that (1) the claims asserted therein fail to state a claim upon which relief can be granted; (2) any claims are barred by the Eleventh Amendment; (3) this Court lacks subject matter jurisdiction to invalidate his state court judgments; and (4) Rose has not complied with a 2007 “pre-filing order.” See generally Mem. in Supp. of MTD (Docket No. 3, Att. 1). Each of these basis is discussed below.

         1. Rose’s Complaint is Unintelligible and Fails to State a Claim Upon Which Relief Can Be Granted

         Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. A complaint may be dismissed as a matter of law for one of two reasons: “(1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal claim.” Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984) (citation omitted). Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the plaintiff. See Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).

         A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). However, in providing grounds for relief, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556-57; see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (“[C]onclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.”) (citation omitted). “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Thus, “bare assertions amounting to nothing more than a formulaic recitation of the elements” of a claim “are not entitled to an assumption of truth.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[T]he non-conclusory ‘factual content, ’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”) (internal quotations and citations omitted).

         A court looks at whether the facts in the complaint sufficiently state a “plausible” ground for relief. See Twombly, 550 U.S. at 570. A plaintiff must include enough facts to raise a reasonable expectation that discovery will reveal evidence and may not just provide a speculation of a right to relief. See id. at 586. When a complaint fails to adequately state a claim, such deficiency should be “exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 586 (citation omitted).

         A court may also dismiss a complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Rule 8 mandates that a complaint include a “short and plain statement of the claim” and that each allegation “be simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2) & 8(d)(1). A complaint that is so confusing that its “true substance, if any, is well disguised” may be dismissed for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); Simmons v. Abruzzo, 49 F.3d 83, 86 (2nd Cir. 1995) (stating that district court has power to dismiss complaint for failure to comply with Rule 8 where complaint is so confused, ambiguous, or unintelligible that its true substance is well disguised); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (‚ÄúSomething labeled a complaint but written . . ., prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom ...

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