United States District Court, D. Idaho
DANA L. ROSE, Plaintiff,
THE STATE OF IDAHO, 100 DEFENDANTS, Defendants.
AND RECOMMENDATION RE: DEFENDANT STATE OF IDAHO’S
MOTION TO DISMISS (DOCKET NO. 3) DEFENDANT STATE OF
IDAHO’S MOTION TO DECLARE DANA L. ROSE A VEXATIOUS
LITIGANT (DOCKET NO. 7) MEMORANDUM DECISION AND ORDER RE:
DEFENDANT STATE OF IDAHO’S FIRST MOTION TO TAKE
JUDICIAL NOTICE (DOCKET NO. 4) DEFENDANT STATE OF
IDAHO’S SECOND REQUEST TO TAKE JUDICIAL NOTICE (DOCKET
Honorable Ronald E. Bush Chief U.S. Magistrate Judge.
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
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).
January 4, 2016, Plaintiff Dana Rose responded to Judge
Lodge’s Order of Reference, arguing:
Defendant Edward J. Lodge has now
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!
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
Supp. Resp. to Order of Reference (Docket No. 14) (emphasis
and capitalization in original). Rose’s objection is
noted, but denied nonetheless.
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.
(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.
The State’s Motion to Dismiss (Docket No. 3)
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.
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
Rose’s Complaint is Unintelligible and Fails to
State a Claim Upon Which Relief Can Be Granted
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).
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).
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).
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)
(“Something labeled a complaint but written . . .,
prolix in evidentiary detail, yet without simplicity,
conciseness and clarity as to whom ...