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Case 1:13-cv-00734-AWI-SMS Document 11 Filed 07/30/13 Page 1 of 10



UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA





ROBERT JOHN VILLARINO II,


Plaintiff,



v.


SOCIAL SECURITY
ADMINISTRATION: MANAGER and
DOES 1 to 1,


Defendants.



Case No. 1:13-cv-00734 AWI-SMS

ORDER CONSOLDATING
CASE No. 1:13-cv-01021 LJO-SMS

ORDER GRANTING DEFENDANTS?
MOTIONS TO DISMISS



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I.

INTRODUCTION



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Plaintiff Robert John Villarino, II (“Villarino” or “Plaintiff”) has filed a total of five

complaints in Fresno County Superior Court against Defendants Social Security Administration and

the United States of America (“Defendants”) which have been removed to this Court. The Court

has already dismissed three of these, all for lack of subject matter jurisdiction and for failure to state

a claim, and all with prejudice. The latest two are Villarino IV (1:13-cv-00734 AWI-SMS) and

Villarino V (1:13-cv-01021 LJO-SMS). For the reasons that follow, the Court consolidates these

and grants Defendants? motions to dismiss.

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II.

FACTS

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Villarino I, II, and III

Villarino I alleged a wrongful withholding of Villarino?s Supplemental Security Income

(SSI) benefits and was dismissed for failure to exhaust administrative remedies and failure to state a

claim. Docket No. 6 in Case No. 1:12-0425. Because the Court lacked jurisdiction over Villarino?s

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claims, the Court did not grant leave to amend. Villarino II alleged the same wrongful withholding

of benefits and was dismissed on these same grounds, again with prejudice. Docket No. 5 in Case

No. 1:12-1225. The Court also cited res judicata. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956

(9th Cir. 2002) (“Res judicata, or claim preclusion, prohibits lawsuits on any claims that were

raised or could have been raised in a prior action”) (internal quotation marks omitted) (emphasis in

original). Villarino III again alleged a suspension of benefits, and included additional claims for

defamation, libel, eviction, and intentional infliction of emotional distress against the SSA and its

employees, Gomez and Yang. Docket No 1 in Case No. 1:13-212. The Court dismissed for the

same reasons as in Villarino II. Docket No. 9 in Case No. 1:13-cv-212 at 7:6-9, 7:27-8:8, 8:20-21.

Villarino IV

Villarino filed the civil complaint in Villarino IV with the Fresno County Superior Court on

April 12, 2013. It is unclear whether he paid a filing fee. On May 17, 2013, Defendants removed

the complaint to this district, paying the district court?s filing fee. See 28 USC § 1914.

On the Superior Court?s “Civil Case Cover Sheet,” Plaintiff checked the box indicating that

the nature of the case is for “Judicial Review,” specifically a “Petition re: arbitration award.” He

then filled out a generic Superior Court Complaint form which is designed for “Personal Injury,

Property Damage, or Wrongful Death” claims. On this, he wrote: “remittitur „solemnity?

„ceremony? circumstance & grant „removal?: remote,” and after this, “exceed omnibus motion.” As

damages, he wrote that he has suffered “intentional tort, intentional infliction of emotional distress,

defamation, libel, general personal rights,” for an amount totaling $14,000,000.00. Finally, in a

section of the complaint asking what paragraphs are alleged “on information and belief,” Plaintiff

offered this statement, apparently as the legal basis for his suit:


The Civil Code of the State of California Division I Persons § 43 General Personal
Rights. … [Also,] the right of protection from bodily restraint or harm, from personal
insult, from defamation, and injury to his personal relations.

Following the form complaint is the Notice of Removal from Villarino III dated February 8,

2013. This is the same date identified by Villarino on the Fresno City Claim for Damages form that

accompanies the complaint. This form states the injury occurred at the address of the federal

courthouse, that the causes of action are “prejudice, intentional tort, intentional infliction of

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Case 1:13-cv-00734-AWI-SMS Document 11 Filed 07/30/13 Page 3 of 10



emotional distress, civil rights,” and that Plaintiff seeks damages of $42 million dollars. When

asked to describe the injury in full detail, Plaintiff wrote:


„Power? Code General Provisions
Edition: Native American Indians: Social Justice Issue: Deific
Nature: Homeopathy Homeostasis

Next, Villarino provides a copy of a November 2011 letter, written by him and directed to

the “Secretary of the Executive Committee, Superior Court of California.” It is captioned “motive

for defense.” This letter refers to a separate document (not included) “from the federal court of

Baltimore, Maryland” which was delivered by an “agent for the Rabbinic League Center, the

Jewish Assembly, sponsored by a corporate entity, conglomerate, a private government: Israeli

Command League, and they are anti-Christ.” It says that “these Goddamned Anti-Christs” have

acted against his “properties” because “they believe I am the Jewish Messiah.” Villarino says he is

“invoking my Constitutional authority and issuing a directive” to have this matter investigated.

Finally, there are two California form “Attachment” forms accompanying the complaint. In

the first of these, in a section labeled “reasons for liability,” Plaintiff states:


No fault: of, relating to, or being a patent plan (Deific) under which plaintiff injured in
plan accident (calamity) is compensated by indemnity up to stipulated compensation for
actual and compensated losses. Direct

The second form offers this as the “reason for liability”:


Defamation: Obloquy. Censure, blame, or abusive language aimed at a person or thing, especially by
numerous persons or by the general public. Discredit, disgrace, or bade repute resulting from public
blame, abuse, or denunciation (arbitrary court action) by defendant.

The Court notes that this is a quotation of the definition for obloquy from dictionary.com.

Villarino V

Villarino filed the civil complaint in Villarino V with the Fresno County Superior Court on

May 2, 2013. It is unclear whether he paid a filing fee. On July 2, 2013, Defendants removed the

complaint to this district, paying the district court?s filing fee. See 28 USC § 1914.

Villarino V again uses the California form complaint and, as in previous lawsuits, lists the

claims on the civil cover case sheet as “professional negligence;” the form complaint alleges

“intentional infliction of emotional distress” on the first page and general negligence on page three.

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He again seeks $14 million dollars and alleges “fees Overdrawn Account, Intentional

Infliction of Emotional Distress.” He again describes his claims as including “Civil Code of the

State of California Division I Persons § 43 General Personal Rights…the right of protection from

bodily restraint or harm, from personal insult, from defamation, and injury to his personal

relations.” The complaint contains one state form “cause of action” attachment for general

negligence alleging that on May 2, 2013, at Bank of America at Fresno City Center, “disclosed

follow,” but the only other documentation in the Fresno Superior Court file are two pages from his

Bank of America statement regarding an overdraft in May 2013.

Defendants’ Declarations

According to declarations submitted by Defendants, a search of Villarino?s SSA records

demonstrates that he has been paid all SSI benefits to which he is entitled. Declaration of Joan

Woo, ¶ 4-5. The SSA expressly advised Villarino per letter dated April 17, 2013, that his May

benefits were being suspended because the SSA needed “correct information about your name,

address, or bank account.” Exhibit “1” to Woo Decl. Despite having almost two weeks to correct

the problem, Villarino did not provide the requested information until May 3, 2013, at which time

his benefits were reinstated for that month. Woo Decl., ¶ 4-5; Exhibit “2” to Woo Decl. Any

overdraft charge claimed by Villarino was the result of his failure to correct this issue before May

1, 2013. He filed no administrative appeal of his benefits payment, nor has he taken any other steps

to exhaust his administrative remedies. Woo Decl. at ¶ 7. Similarly, he has not pursued any

administrative remedies for any tort claims against the SSA. Declaration of Mark Ledford, ¶ 2-4.

III. CONSOLIDATION

“If actions before the court involve a common question of law or fact, the court may ...

consolidate the actions.” Fed.R.Civ.P. 42(a)(2). The court may do so sua sponte. Devlin v. Transp.

Commc’ns Int’l Union, 175 F.3d 121, 130 (2d Cir.1999). The court should weigh the interest of

judicial convenience against the potential for delay, confusion, and prejudice caused by

consolidation. Southwest Marine, Inc., v. Triple A. Mach. Shop, Inc., 720 F. Supp. 805, 807 (N.D.

Cal. 1989). The court has “broad discretion” in exercising this rule. Investors Research Co. v. U.S.

Dist. Court for Cent. Dist. of California, 877 F.2d 777 (9th Cir. 1989).

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The Court finds that the two cases can be consolidated. At heart, both complaints apparently

relate to alleged wrongdoing in the issuance of Social Security benefits by the same federal

defendants. Beyond that, their allegations are unclear.

While Villarino IV?s motion to dismiss has been fully briefed and ready for a decision, there

is still time for Plaintiff to oppose the motion in Villarino V. Nevertheless, the Court deems both

motions to be ripe for decision. This follows from the consolidation of the actions, as well as from

the Court?s inherent power to control its docket “with economy of time and effort for itself, for

counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). As Plaintiff has not

made an appearance or a single filing in Villarino I-IV, a response in Villarino V seems unlikely.

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IV.

LEGAL STANDARDS

Failure to state a claim – FRCP 12(b)(6)

Failure to state a claim is defined in Fed.R.Civ.P. 12(b)(6), and includes failure to satisfy the

pleading standards in Fed.R.Civ.P. 8. Under Fed. R. Civ. P. 8(a), a pleading that states a claim for a

relief must include a statement demonstrating the Court?s jurisdiction, “a short and plain statement

of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which

may include relief in the alternative or different types of relief.” It must give the defendant fair

notice of the claims against him and state their elements plainly and succinctly. Jones v. Cmty.

Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984); Swierkiewicz v. Sorema N.A., 534 U.S.

506, 512 (2002). The Supreme Court noted,


The pleading standard Rule 8 announces does not require detailed factual allegations, but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a
cause of action will not do. Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement. … [¶] [A] complaint must contain sufficient
factual matter, accepted as true, to … allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted).

Although a court assumes the truth of well-pled factual allegations, legal conclusions are not

entitled to the same assumption of truth. Id.






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Lack of subject matter jurisdiction – FRCP 12(b)(1)

Under Fed.R.Civ.P. 12(b)(1) the court must dismiss any action sua sponte if the court lacks

subject-matter jurisdiction. The plaintiff, as the party seeking to invoke the court?s jurisdiction,

always bears the burden of establishing subject matter jurisdiction. Tosco Corp. v. Cmty. for Better

Env’t, 236 F.3d 495, 499 (9th Cir. 2001). The court presumes a lack of subject matter jurisdiction

until the plaintiff proves otherwise. See Kokkonen v. Guardian Life Ins. Co. of America, 114 S. Ct.

1673, 1675 (1994). In a facial attack, the allegations in the complaint are insufficient on their face

to invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

In a factual challenge, the truth of the allegations, which would otherwise invoke subject matter

jurisdiction, is challenged. In this circumstance, this Court “is not restricted to the face of the

pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual

disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560

(9th Cir. 1988). Here, Defendants present a factual challenge to Mr. Villarino?s complaint. “Once

the moving party has converted the motion to dismiss into a factual motion by presenting affidavits

or other evidence properly brought before the court, the party opposing the motion must furnish

affidavits or other evidence necessary to satisfy its burden of establishing subject matter

jurisdiction.” Savage, 343 F.3d at 1039-40 n.2.

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V.

ANALYSIS

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In dismissing the three prior lawsuits against Defendants, this Court found that Plaintiff

either failed to invoke federal subject matter jurisdiction or failed to state any viable claim.

Plaintiff?s two latest complaints must be dismissed for the same reasons.

“The United States can be sued only to the extent that it has waived its sovereign

immunity.” Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987), cert. denied, 487 U.S. 1204

(1988). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies

from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The Federal Tort Claims Act (“FTCA”) is

a “limited waiver of sovereign immunity, making the Federal Government liable to the same extent

as a private party for certain torts of federal employees acting within the scope of their

employment.” United States v. Orleans, 425 U.S. 807, 813 (1976). However, the waiver is

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expressly limited and must be strictly construed. Vacek v. United States Postal Serv., 447 F.3d

1248, 1250 (9th Cir. 2006).

Defendants point to Plaintiff?s specific claims, arguing that these are outside the FTCA?s

waivers of sovereign immunity and indicate a failure to exhaust administrative remedies. While this

is clearly true as to certain claims (for example, the nonpayment of benefits for two weeks, which

Defendants attribute to needing updated information), it is simply too difficult to make this

determination as to the majority of Plaintiff?s assertions. Under the FTCA, to determine the nature

of a cause of action, courts must “look beyond [the] characterization” of the cause of action, “to the

conduct on which the claim is based.” Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 (9th

Cir.1990). The complaints themselves are too unclear to permit this determination. This

shortcoming—the failure to state a claim—is the more substantial grounds for dismissal.

In Villarino I, after dismissing for lack of subject matter jurisdiction, the Court turned to

Plaintiff?s failure to state a claim. The Court dismissed for the following reasons (which would be

paraphrased in Villarino II and Villarino III):


In addition to lacking jurisdiction over Mr. Villarino?s claims, … Mr. Villarino also fails
to allege sufficient facts to make these claims plausible or recognizable. Moreover, part
of Mr. Villarino?s complaint is incomprehensible to this Court. … Construing these
allegations liberally, this Court cannot decipher these assertions. In addition, without
facts to support the claim, this Court finds that Mr. Villarino has failed to state a claim
against SSA for “loss of use of property/rental/eviction.” When a complaint is this
“vague, conclusory, and general and does not set forth any material facts in support of the
allegations,” dismissal is proper. North Star Int’l v. Ariz. Corp. Comm., 720 F.2d 578,
583 (9th Cir. 1983). Accordingly, Mr. Villarino?s complaint is dismissed on the
independent basis for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

The same is true of the instant complaints. The claims are “vague, conclusory, and general,”

so much so that the Court must again conclude that Plaintiff has not stated a claim for which relief

can be granted. Once again, the Court dismisses these with prejudice.

VI. VEXATIOUS LITIGANT STANDARD

The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power to

enter prefiling orders against vexatious litigants. Weissman v. Quail Lodge Inc., 179 F.3d 1194,

1197 (9th Cir.1999). Defendants have stated their intent to request such a prefiling order should

Villarino file a sixth similar lawsuit.

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Prefiling orders are an extreme remedy because they can impinge upon the ability of

litigants seeking redress with rightful claims to reach the court. Molski v. Evergreen Dynasty Corp.,

500 F.3d 1047, 1057 (9th Cir. 2007). Therefore the court should not exercise undue haste in

granting prefiling orders and should proceed “only after a cautious review of the pertinent

circumstances.” DeLong v. Hennessey, 912 F.2d 1144, 1148 (9th Cir.1990). Such a review should

be especially considered in light of the general policy of the courts to be protective of pro se

litigants. Pavilonis v. King, 626 F.2d 1075, 1076 (1st Cir.1980). However, there are also sound

policy reasons supporting the use of filing limitations against unrepresented parties when proper, as

they allow the courts to maintain their docket when other controls are often unavailable. Doran v.

Vicorp Restaurants, Inc., 407 F.Supp.2d 1115, 1118 (C.D.Cal.2005) (noting that unlike pro se

parties, attorneys are less likely to file frivolous claims because they both face the continuous threat

of malpractice and depend on their reputation in the community to sustain their careers).

Defendants are not requesting such an order at this time. However, Plaintiff should be aware

that such a restriction could be imposed in the future, and Plaintiff should understand the legal

requirements for imposing one. Four conditions must be met: (1) plaintiff is given adequate notice

to oppose a restrictive prefiling order before it is entered; (2) the court provides an adequate record

for review, including a listing of all the cases and motions that led the Court to conclude that a

vexatious litigant order was needed; (3) the Court makes substantive findings as to the frivolous or

harassing nature of the litigant?s actions; and (4) the Court order is narrowly tailored. DeLong at

1148. As an example of a possible order in this case, any case filed by Plaintiff against these named

Defendants in this district could be automatically dismissed unless Plaintiff pays the filing fee or

the Court determines that Plaintiff is likely to prevail.

VII. ORDER REGARDING FUTURE CASES

Defendants do, at this time, request an order that Villarino must file future similar lawsuits

in Federal court instead of in state court. The Court agrees that such an order would be appropriate

here and would serve the goals of the PLRA. However, the Court is unaware of authority allowing

it to issue such an order.

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The Court appreciates the problem that this poses for Defendants. As long as Plaintiff

continues to file complaints in state Court, it is the removing Defendants who are responsible for

filing fees in this court. 28 U.S.C. § 1914. Plaintiff, who is not a prisoner, thus need not seek IFP

status and avoids the screening provisions of 28 U.S.C. § 1915(e). See, e.g. Jae v. Stickman, 2012

WL 5830633 (W.D. Pa. Nov. 16, 2012) (although § 1915(e)(2) applies “[n]otwithstanding any

filing fee, or any portion thereof, that may have been paid,” it only governs in forma pauperis

proceedings where the plaintiff is allowed to make incremental payments until the filing fee is paid

in full); Robles v. Casey, 2011 WL 398203 (M.D. Pa. Feb. 3, 2011) (section not applicable where

plaintiff only applied for in forma pauperis status in state court, prior to removal). Meanwhile, it is

at least unclear whether there is any other source of authority (aside from a prefiling order,

discussed above) which would allow the Court to dismiss complaints sua sponte for failure to state

a claim. Compare Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (prior to enactment of

PLRA in 1996, courts lacked power to dismiss a complaint sua sponte for failure to state a claim)

with Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981) (in dismissing sua sponte for failure to

state a claim, Court must give notice and opportunity to respond, unless “the plaintiffs cannot

possibly win relief”). Complaints which lack subject matter jurisdiction may be easier to address.

“[S]ubject matter jurisdiction of the district court is not a waivable matter and may be raised at

anytime by one of the parties, by motion or in the responsive pleadings, or sua sponte by the trial or

reviewing court. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1200 (9th Cir. 1988); see also 28

U.S.C.A. § 1447, FRCP 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”)

In light of these considerations, the Court orders as follows. Should Plaintiff file any

complaint against these Defendants in superior court which Defendants then remove to this Court,

Plaintiff will have 30 days from service of the removal to inform this Court why the complaint

should not be dismissed for failure to state a claim and for lack of subject matter jurisdiction. After

30 days, Defendants need not answer or move to dismiss until the Court has addressed these issues

in a screening order. (To expedite this process, the court asks Defendant to direct the Court?s

attention to this order when filing the removal.)

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VIII. CONCLUSION AND ORDER

For the reasons discussed above, this Court:

1. Directs the Clerk to close Villarino V (1:13-cv-01021 LJO-SMS), to consolidate that case

into this case, Villarino IV (1:13-cv-00734 AWI-SMS), and to vacate the 8/20/2013 motion hearing

in Villarino V;

2. Grants the motions to dismiss in each case and dismisses these with prejudice; and

3. Directs the clerk to enter judgment in favor of Defendants Commissioner of Social

Security and the United States of America and against plaintiff Robert John Villarino II.

4. Orders Plaintiff to comply with the above-mentioned requirements for any cases against

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these Defendants that are removed to this Court in the future.

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IT IS SO ORDERED.

Dated: July 29, 2013


0m8i788




DEAC_Signature-END:









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SENIOR DISTRICT JUDGE

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