Case 4:21-cv-01721-YGR Document 272 Filed 06/06/22 Page 1 of 7
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`DEBORAH COONEY,
`
`Plaintiff,
`
`v.
`
`
`CITY OF SAN DIEGO, ET AL.,
`
`Defendants.
`
`Case No. 4:21-cv-01721-YGR
`
`
`ORDER DISMISSING CASE WITHOUT LEAVE
`TO AMEND; DENYING MOTION FOR
`PRELIMINARY INJUNCTION AS MOOT
`
`
`
`
`
`Pro se plaintiff Deborah Cooney has filed a motion for preliminary injunction seeking to
`
`prevent all of the defendants from wrongfully arresting, detaining, imprisoning, or involuntary
`
`hospitalizing plaintiff. (Dkt. No. 268 at 1.) In filing this sweeping motion, plaintiff requests that
`
`the Court take judicial notice of “all documents filed in [the underlying lawsuits implicated in her
`
`complaint], all federal and state habeas, civil, criminal, restraining order, eviction, and other
`
`proceedings related to the Complaint.” (Id. at 3.)
`
`As the parties are aware, there are over thirty pending motions to dismiss in this case.
`
`Those motions raise myriad meritorious defenses, including without limitation, lack of personal
`
`jurisdiction or improper venue, preclusion, and failure to state a claim. While plaintiff diligently
`
`responded to the motions, her oppositions extensively copied one another. Familiar with the
`
`pending motions, the allegations in the First Amended Complaint (“FAC”), and having considered
`
`plaintiff’s pending motion for preliminary injunction, the motion improperly seeks to litigate the
`
`pending motions to dismiss in the guise of a motion for preliminary injunction. Since the
`
`deficiencies with plaintiff’s FAC are ripe for determination, the Court HEREBY ORDERS that
`
`plaintiff’s case is DISMISSED WITHOUT LEAVE TO AMEND and the pending motion for
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:21-cv-01721-YGR Document 272 Filed 06/06/22 Page 2 of 7
`
`
`
`preliminary injunction is denied as MOOT.1
`
`I.
`
`BACKGROUND
`
`In short, plaintiff’s FAC identifies over 140 defendants, including former governors,
`
`businesses, law firms, lawyers, public agencies and officials, unions, cities and counties, landlords,
`
`and judicial officers. While not entirely clear from the face of the FAC, defendants are primarily
`
`from Florida, California, and West Virginia. One defendant also appears to be a resident of
`
`Mexico.
`
`Based upon a liberal and generous construction of plaintiff’s shotgun pleading, especially
`
`given her pro se status, the Court is hard-pressed to find a plausible common glue amongst the
`
`sprawling, confusing, and conclusory allegations. Plaintiff’s FAC and opposition briefs
`
`demonstrate her intent to allege what she has deemed “intrinsic and extrinsic fraud on the courts.”
`
`(FAC ¶ 1.) Pursuant to the FAC, “[a]ll of the Defendants participated in all of the wrongdoing and
`
`crimes stated herein” in the FAC “because all of the Defendants worked together to defraud the
`
`Courts, to injure and harm the plaintiff, and to abridge her rights.” (Id. ¶ 33.) As alleged, those
`
`wrongdoings are extensive. For instance, “[a]ll of the defendants conspired to deprive Plaintiff of
`
`liberty, work, health, housing, mail delivery, legal representation, police protection, justice,
`
`transportation, communication, access to telephone and computer, libraries, food, gasoline, water,
`
`electricity, and other goods and services.” (Id. ¶ 25.) How were these allegations carried out? As
`
`alleged, all defendants subjected “Plaintiff to illegal stop and frisk, false arrest, false
`
`imprisonment, malicious prosecution, battery, radiation injury, and forcible drugging” through
`
`“trespass, theft, burglary, vandalism, extortion, racketeering, [] mail fraud . . . defam[ation] and
`
`slandering, [as well as] lying about her health, words, and actions.” (Id.)
`
`Construing the FAC with a liberal lens, plaintiff tries to tie various categories of events
`
`together to raise an inference that there is intrinsic and extrinsic fraud on the court. Tying these
`
`categories together based upon the allegations demonstrates how sprawling and disconnected
`
`
`1 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court
`finds that the motions are appropriate for decision without oral argument.
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:21-cv-01721-YGR Document 272 Filed 06/06/22 Page 3 of 7
`
`
`
`many events are. First, plaintiff alleges that she was entitled to relief in four “Underlying Cases”
`
`that she had filed in various courts of law, including in California, Florida, and West Virginia. (Id.
`
`¶ 20-24.) Some allegations suggest that there are other lawsuits, however, the scope, timing, and
`
`outcome of those proceedings are incomprehensible as alleged. Without limiting the allegations in
`
`the FAC, plaintiff alleges that court orders were unlawfully issued without authorization, false
`
`statements were made in those proceedings by the parties or their counsel, judicial officers were
`
`unduly influenced, and counsel failed to sufficiently represent her interests. Second, plaintiff
`
`challenges her prior arrests and/or prosecutions, including without limitation, that they lacked
`
`probable cause and were based upon false information. Third, plaintiff challenges the conditions
`
`of her confinement while she was incarcerated, including without limiting, being subjected to
`
`defective telephone equipment that caused her radiation injury, being deprived access to showers,
`
`being injected with unknown substances, and being exposed to other personal injury. Fourth,
`
`plaintiff’s FAC alleges that various utility companies caused her harm through radiation exposure
`
`and/or denied her access to telephone services. Fifth, plaintiff asserts that retailers blocked her
`
`access to various goods and services and that she was subjected to false arrest or detention
`
`stemming from plaintiff’s efforts to access or use the various services. Sixth, various insurance
`
`carriers allegedly denied plaintiff coverage for damages causes from the defendants. Seventh,
`
`plaintiff alleges that various prospective and current employers wrongfully terminated or denied
`
`plaintiff employment based upon false information concerning her background. Eighth, landlords
`
`allegedly prevented her from using her home, which included accessing important court
`
`documents and other valuables, which plaintiff alleges were improperly retained.
`
`In light of the foregoing, plaintiff alleges that she brings her suit pursuant to 42 U.S.C. §§
`
`1983, 1985, and 1986, as well as 18 U.S.C. § 1964. It also alleges that the defendants’ conduct
`
`was criminal conduct proscribed by 18 U.S.C. §§ 201, 241-2, 1341, 1343, 1346, 1347, 1349, and
`
`1961-2.
`
`II.
`
`LEGAL STANDARD
`
`A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in
`
`the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199 (9th Cir. 2003). To survive a motion to
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:21-cv-01721-YGR Document 272 Filed 06/06/22 Page 4 of 7
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`dismiss, “a 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) (quoting Bell Atl.
`
`Corp. v. Twombly, 550 U.S. 544, 557, (2007)). That requirement is met “when the plaintiff pleads
`
`factual content that allows the court to draw the reasonable inferences that the defendant is liable
`
`for the misconduct alleged.” Id. In evaluating a motion to dismiss under Rule 12(b)(6), the Court
`
`takes all allegations of material fact as true and construes them in the light most favorable to the
`
`plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). Even under the
`
`liberal pleading standard of Federal Rule of Civil Procedure 8, “a plaintiff’s obligation to provide
`
`the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
`
`recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned
`
`up). The Court will not assume facts not alleged, nor will it draw unwarranted inferences. Iqbal,
`
`556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief [is] a
`
`context-specific task that requires the reviewing court to draw on its judicial experience and
`
`common sense.”).
`
`Claims sounding in fraud must further meet the particularity requirements of Federal Rule
`
`of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009).
`
`Rule 9(b) states that “[i]n alleging fraud or mistake, a party must state with particularity the
`
`circumstances constituting fraud or mistake.” Rule 9(b) “requires . . . an account of the time,
`
`place, and specific content of the false representations as well as the identities of the parties to the
`
`misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal quotation
`
`marks omitted). In other words, “[a]verments of fraud must be accompanied by ‘the who, what,
`
`when, where, and how’ of the misconduct charged.” Kearns, 567 F.3d at 1124. Furthermore,
`
`“Rule 9(b) does not allow a complaint to . . . lump multiple defendants together but require[s]
`
`plaintiffs to differentiate their allegations when suing more than one defendant.” Destfino v.
`
`Reiswig, 630 F.3d 952, 958 (9th Cir. 2011) (citation and quotation marks omitted)
`
`Leave to amend must be granted to a pro se litigant unless it is clear that the complaint’s
`
`deficiencies cannot be cured by amendment. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir.
`
`1995).
`
`4
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:21-cv-01721-YGR Document 272 Filed 06/06/22 Page 5 of 7
`
`
`
`III. DISCUSSION
`
`As demonstrated by many of the motions to dismiss, plaintiff’s entire FAC can be
`
`dismissed for violating Federal Rule of Civil Procedure 8(a). That rule provides that a “pleading
`
`that states a claim for relief must contain . . . a short and plain statement of the claim.” Fed. R.
`
`Civ. P. 8(a). Courts routinely dismiss complaints such as plaintiffs that are convoluted and
`
`difficult to follow for failure to comply with that rule. See, e.g., McHenry v. Renne, 84 F.3d 1172,
`
`1179-80 (9th Cir. 1996) (“Prolix, confusing complaints such as the ones plaintiffs filed in this case
`
`impose unfair burdens on litigants and judges.”); Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir.
`
`2013) (recognizing that complaints can be dismissed for failure to comply with Rule 8(a) and
`
`noting the plaintiff’s complaint had been dismissed for failure to comply); Nevijel v. North Coast
`
`Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming dismissal where complaint was
`
`“verbose, confusing and almost entirely conclusory”).
`
`Notably, plaintiff is well aware of this rule. In 2018, plaintiff filed a similar complaint
`
`spanning ninety defendants, approximately ten years, three states, and one foreign country. Her
`
`complaint was dismissed against all defendants. See, e.g., Cooney v. City of San Diego, Case No.
`
`18-cv-01860-JSW, 2019 WL 11340107 (N.D. Cal. March 18, 2019). The Ninth Circuit
`
`subsequently dismissed her appeal as frivolous. Cooney v. City of San Diego, No. 19-16180, 2019
`
`U.S. App. LEXIS 31368 (9th Cir. Oct. 21, 2019). Disagreeing with the outcome of that case,
`
`plaintiff now seeks to attack it through subsequent litigation, claiming that it contributed to the
`
`fraud on the court. Plaintiff is precluded from relitigating her claims. “Res judicata, also known
`
`as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could
`
`have been raised in the prior action . . . whenever there is (1) an identity of claims, (2) a final
`
`judgment on the merits, and (3) identity or privity between parties.” Owens v. Kaiser Found.
`
`Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (cleaned up). “Suits involve the same claim
`
`(or cause of action) when they aris[e] from the same transaction, or involve a common nucleus of
`
`operative facts.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589,
`
`1595 (2020) (cleaned up). The Court has no doubt that plaintiff’s theory of fraud on the court is
`
`identical to her prior litigation.
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:21-cv-01721-YGR Document 272 Filed 06/06/22 Page 6 of 7
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Even construing plaintiff’s claim liberally, her fraud on the courts claim, which the Court
`
`construes as an effort to bring a RICO claim, also fails. Under federal law, civil liability can be
`
`imposed on persons and organizations engaged in a “pattern of racketeering activity.” 18 U.S.C. §
`
`1962(c). In general, racketeering activity includes a number of generically-specified criminal acts,
`
`as well as the commission of various predicate offenses. 18 U.S.C. 1961(1). The elements of a
`
`civil RICO claim are: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
`
`activity (known as ‘predicate acts’) (5) causing injury to the plaintiff’s ‘business or property.’”
`
`Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996). Plaintiff must meet Rule 9(b)’s heightened
`
`pleading standard to state a RICO claim. Moore v. Kayport Package Express, Inc., 885 F.2d 531,
`
`541 (9th Cir. 1989). Plaintiff does not come remotely close to meeting this heightened standard,
`
`which even based upon the Court’s experience, is exacting in the context of RICO claims.
`
`In any event, plaintiff’s conclusory and inconsistent allegations do not sufficiently allege
`
`the existence of an enterprise. The Supreme Court has defined an associated-in-fact enterprise as
`
`“a group of persons associated together for a common purpose of engaging in a course of
`
`conduct.” United States v. Turkette, 452 U.S. 576, 583 (1981). “To establish the existence of
`
`such an enterprise, a plaintiff must provide both ‘evidence of an ongoing organization, formal or
`
`informal,’ and ‘evidence that the various associates function as a continuing unit.’” Odom v.
`
`Microsoft Corp., 486 F.3d 541, 553 (9th Cir. 2007) (en banc) (citation omitted). Each defendant
`
`here has engaged in disparate and independent activities spread out over years. There is simply no
`
`common glue apart from plaintiff, who alleges in a sprawling fashion that she has been harmed by
`
`anything and everything.
`
`Furthermore, to the extent plaintiff’s FAC is premised upon various criminal theories, such
`
`as obstruction of justice or perjury, there is no private right of action. See Najarro v. Wollman,
`
`No. C 12-1925 PJH, 2012 WL 1945502, at *3 (N.D. Cal. May 30, 2012) (dismissing claims of
`
`“obstruction of laws,” “obstruction of justice,” and “perjury” because “there is no private right of
`
`action for any of those claims”) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)
`
`(criminal statutes generally “provide no basis for civil liability”)).
`
`The above reasons are sufficient to dismiss plaintiff’s entire claim with prejudice. There is
`
`6
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:21-cv-01721-YGR Document 272 Filed 06/06/22 Page 7 of 7
`
`
`
`simply no basis for her to state the fraud on the court theory she believes in. This is evident by
`
`years of litigation rejecting her claims. Amendment would be futile and such a dismissal is
`
`appropriate even as to defendants that have yet to appear due to lack of service. See, e.g.,
`
`Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802 (9th Cir. 1995) (“We
`
`have upheld dismissal with prejudice in favor of a party which had not yet appeared, on the basis
`
`of facts presented by other defendants which had appeared.”).
`
`IV. CONCLUSION
`
`In light of the foregoing, plaintiff’s FAC is DISMISSED WITHOUT LEAVE TO AMEND.2
`
`Unable to state a claim, plaintiff’s motion for preliminary injunction is DENIED AS MOOT.
`
`This Order terminates all pending motions in the case. The Clerk is DIRECTED to close the
`
`case.
`
`IT IS SO ORDERED.
`
`Dated: June 6, 2022
`
`
`
`
`______________________________________
`
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
`
`
`2 Other deficiencies plague plaintiff’s FAC. For instance, the dozens of judicial officers
`and officials that she sues are entitled to absolute judicial immunity. As to many other defendants,
`there is simply no nexus to this forum at all. Personal jurisdiction is lacking. The Court raised
`these deficiencies for plaintiff in its first order and she simply disregard them and proceeded with
`her frivolous claim.
`
`The Court notes that a motion to set aside default was filed by pro se defendant Dominick
`Addario, M.D. (Dkt. No. 221.) That motion is GRANTED and he is similarly dismissed from the
`case. Doctor Addario was served through a CPA and his failure to respond was not culpable.
`There is a strong preference for resolving cases on their merits. See, e.g., Falk v. Allen, 739 F.2d
`461, 463 (9th Cir. 1984); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir.
`2009) (“As a general rule, default judgments are disfavored; cases should be decided upon their
`merits whenever reasonably possible.”).
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`