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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

HOWARD ALAN ZOCHLINSKI,

Plaintiff,

v.

THE UNIVERSITY OF CALIFORNIA, 

et al.,

Defendants.

CIV S-04-1702 DFL PAN PS

Findings and Recommendation

—NFN—

On August 19, 2004, defendants removed this action from

Yolo County Superior Court and moved to dismiss the complaint. 

On November 30, 2004, the court vacated the hearing on

defendants’ motion and ordered plaintiff to show cause why the

action should not be dismissed for plaintiff’s failure to oppose. 

Plaintiff thereafter filed a motion to remand, an opposition, and

a “pleading to show cause for not granting motion to dismiss.” 

The order to show cause is discharged. 

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1 Plaintiff’s challenges are without merit nevertheless. Plaintiff

asserts that service upon defendants was effected July 19, not July 20, and

defendants’ removal August 19 was therefore one day past the statutory

deadline of 28 U.S.C. § 1446(b). Plaintiff has submitted not a proof of

service but a partial Superior Court docket which provides in pertinent part,

“Served: University of California, Davis Campus with Summons, Complaint,

2

Removal of this action pursuant to 28 U.S.C. §§ 1331 and

1441(b) more than one year after it was filed in state court on

July 25, 2003, satisfied the requirement of section 1446(b) that

“[t]he notice of removal of a civil action or proceeding shall be

filed within thirty days after the receipt by the defendant,

through service or otherwise, of a copy of the initial pleading.

. .” The Regents of the University of California, the first

defendants served in this action, were served with the summons

and complaint on July 20, 2004. See Notice of Removal and

Exhibit B thereto.

Plaintiff’s motion to remand, presented 104 days after

removal, is untimely. The court may consider a motion to remand

filed more than 30 days after removal only for lack of subject

matter jurisdiction. See 28 U.S.C.A. § 1447(c) (“A motion to

remand the case on the basis of any defect other than lack of

subject matter jurisdiction must be made within 30 days after the

filing of the notice of removal under section 1446(a)”). “[A]

district court exceeds its authority in remanding on grounds not

permitted by § 1447(c).” Maniar v. F.D.I.C., 979 F.2d 782, 785

(9th Cir. 1992) (citations and internal quotations omitted). The

court may not consider plaintiff’s untimely procedural

challenges.1

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Notice of Inclusion by Serving Jean Seaton, Legal Office Clerk on 7-19-04.” 

Defendants persuasively argue that plaintiff’s purported service upon a “legal

office clerk” for the “University of California, Davis Campus” was ineffective

“since U.C. Davis is not a separately incorporated entity and therefore not an

appropriate defendant or entity authorized to accept service on behalf of the

Regents or other individual defendants and Ms. Seaton, an employee of the

Regents, is also not authorized to accept service on behalf of the Regents or

the other individual defendants.” Defendants’ December 7, 2004, Response, at

p. 2; Fed. R. Civ. P. 4(h) (requiring service upon an authorized agent). In

contrast, the copy of the summons provided by defendants bears a handwritten

notation on the top right, “DMR 7/20 11:33 accepted for Regent M’y.” 

Plaintiff’s second argument is that defendants’ waived their right to

removal because their legal counsel was informed of this action when plaintiff

filed it. Service of process, not informal notice, is required by the Federal

Rules. See Fed. R. Civ. P. 4(m), 12(b)(5) and (6).

3

Plaintiff’s motion to remand is denied.

Plaintiff’s 70-page complaint alleges civil rights and

other violations by the University of California, eleven of its

“subdivisions” and nearly one hundred past and present officers,

employees and regents. The factual recitation spans a 34-year

period commencing 1971 when plaintiff was a student at U.C. Santa

Barbara, allegedly arrested and beaten by University police for

anti-war activities and his Jewish ancestry and religion, and

gang raped while incarcerated at the behest of defendant

University Officer John Jones, Jr. Plaintiff asserts these

incidents caused him severe clinical depression and posttraumatic stress disorder which continue in varying degree to the

present. 

Plaintiff pursued his education elsewhere until 1984 when

he enrolled in a Ph.D. program at U.C. Davis. He asserts that

from 1984 to 1992 the University systematically discriminated and

retaliated against him, unfairly limited his campus activities

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4

and prevented him from completing his degree or obtaining

employment with the University. Plaintiff alleges that in

November 1992 he was again arrested by Officer Jones, who had

transferred to the Davis campus and plaintiff was charged with

but not prosecuted for stalking. Plaintiff asserts the arrest

“was a strictly race-based invidious action, without probable

cause” and triggered “[p]laintiff’s relapse in severe clinical

depression.” Complaint, p. 11. Plaintiff was disqualified from

pursuing further studies at the University, administrative holds

were placed on his records, and plaintiff met with unsatisfactory

results in appealing to the administration.

Plaintiff states that in 1993 he experienced yet “another

false and malicious arrest and prosecution” resulting in trial

and acquittal; the charge is not identified but plaintiff states

the “perpetrator . . . had been protected from prosecution by the

U.C. authorities.” Complaint, p. 12. In 1994, University police

allegedly assaulted plaintiff while he stood in line to meet the

Chancellor.

The next 38 pages of the complaint purport to recount

plaintiff’s attempts from August 2000 to July 2003 to seek

reinstatement as a graduate student at U.C. Davis. 

Plaintiff asserts without citation that defendants may be

sued for conduct that occurred within the three years preceding

the filing of plaintiff’s complaint. However these purportedly

current facts are replete with incidents from the preceding 34

years. Plaintiff claims, for example, that the Graduate Student

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2 Plaintiff names the following causes of action at the beginning of

his complaint (Complaint, at pp. 1-4): “Complaint for Injuries/Damages and

Suit in Equity for: Civil Rights Violations, Harassment, Discrimination & on

Basis of Race, Religion, Sex, Disability and Perceived/Alleged Disability;

General Retaliation; Retaliatory Actions for Past Complaints to Government

Officials & the Press (“Whistle Blowing”), and for Filing Suits for Various

Past Civil Rights; Police Threat & Intimidation & Abusive/Illegal Use of

Police Power; Interference with Education and Career; Conspiracy to Harass and

Discriminate on the Basis of Race, Religion, Sex Disability and Perceived

Disability; Harassment and Discrimination of the Basis of Non-White Status;

Deliberate/Intentional and/or Negligent Infliction of Emotional/Psychological

Stress/Distress & Mental Suffering; Cruel and Unusual Punishment;

Deliberate/Intentional and /or Negligent Damage to, Interference with and

Destruction of the Plaintiff’s Intended Educational Prospects, Goals &

Opportunities and Deliberate/Intentional and/or Negligent Damage to,

Interference with and Destruction of Plaintiff’s Job Prospects, Career &

Career Goals with Associated Violations of Plaintiff’s Liberty and Property

Rights; Medical Damages, Psychological Damages; Obstruction of Justice’

Extortion Under Color of Authority; Contract Violations; Fraud of All Types;

Violation of the Rights of Freedom of Speech and Assembly; Crime Victim

Restitution; RICO Violations & Criminal Actions Under Color of Authority;

Deliberate and/or Negligent Misuse of Personnel under Color of State

Authority; Deliberate and/or Negligent Mistraining of Personnel; Harassment

and Discrimination of the Basis of Disability; False Imputation of Metal [sic]

Disability to Interfere with Educational and Employment Prospects; Retaliatory

Actions Designed to Accomplish Any of the Above; General Retaliation;

Conspiracy [to] Harass, Discriminate Against & Violate the Civil Rights of

Plaintiff and Conspiracy to do Any and/or All of the Above; Punitive and

Exemplary Damages and Other Damages and Penalties as the Court see Fit to

Award; Equitable Damages in the Form of Ph.D. Degree, Tenured Professorship

with No Responsibilities Other Than Pure Research, A Fully Equipted [sic]

Molecular Genetics Lab with Funding at Suitable Levels for the Remainder of

5

Handbook in place from 1977 to 2001 permitted his readmission

despite adverse interpretation by the University, and that its

rewording in 2001 to expressly forbid readmission of disqualified

graduate students was both retaliatory and an ex poste facto law

as applied to plaintiff. Plaintiff also claims that since 2001

University officials have made libelous statements about

plaintiff and his past activities.

The first four pages of plaintiff’s complaint caption

multiple causes of action.2 The conclusion of his complaint

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Plaintiff’s Active Life, with a Staff of, Minimum 10 Research Associates, Grad

Students, Technicians and a Secretary; This Suit is in the Nature of a Class

Action as well as a Personal Injury Suit, the Classes in Question Being

Ashkenazi Jews, Women, Africa-Americans, Hispanic-Americans, Individuals

Disabled by Clinical Depression and Other Emotional/Mental Conditions,

Particularly Graduate Students of the University of California in Any of the

Aforementioned Groups and U.S. Students in General Who Are in Need of

Protection. This Suit Also Challenges the Constitutionality of California

Government Code Section 821.6.”

3 Plaintiff formally asserts the following causes of action at the

conclusion of his complaint (Complaint, at pp. 62-68):

First Cause of Action–Intentional Tort: Deprivation of Civil

Rights: University Defendants–Interference with Educational and

Career Goals and Advancement; Breach of Contract

Second Cause of Action–Intentional/Negligent Tort: Deprivation of

Civil Rights: University Defendants–Interference with Educational

and Career Goals and Advancement; Breach of Contract

Third Cause of Action–Intentional Tort: Deprivation of Civil

Rights: University Defendants–Interference with Educational and

Career Goals and Advancement; Breach of Contract–Libel, Slander

and Defamation of Character

Fourth Cause of Action–Intentional Tort: Deprivation of Civil

Rights: University Defendants–Interference with Educational and

Career Goals and Advancement; Breach of Contract–Fraud, Libel,

Slander and Defamation of Character

Fifth Cause of Action–Deprivation of Civil Rights &

Discrimination: University Defendants

Sixth Cause of Action–Deprivation of Civil Rights, California C.C.

[Civil Code] §§ 51, 51.5, 51.7, 52, 52.1, and 52.3: All

Defendants

Seventh Cause of Action–As Court Deems Appropriate Based on the

Facts

Eighth Cause of Action–Special Allegation of Conspiracy

6

formally asserts causes of action for discrimination, retaliation

and deprivation of civil rights based on tort and contract law,

and asks the court to fashion appropriate additional causes of

action.3 Complaint, at pp. 62-68. 

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Ninth Cause of Action–Declaratory Relief: That California

Government Code § 821.6 is Unconstitutional

4 Plaintiff makes the following additional demands for relief

(Complaint, at pp. 68-69):

a. That this Court assume jurisdiction over the University of

California or, in the alternative order the University of

California to reinstate Plaintiff subject to the rules as

they existed prior to the false accusations, and allowed to

complete his dissertation, or awarded his Ph.D. without

further requirements; 

b. That, as equitable relief for damage to Plaintiff’s career,

he be given a tenured professorship at the U.C. campus of

his choice, with a completely equipped and staffed molecular

biology lab no duties other than research and training of

graduate students–no bureaucratic or teaching duties.

c. That this Court issue an injunction enjoining defendants

from continuing their discriminatory conduct toward minority

students and Plaintiff in particular;

d. That the University of California be enjoined from further

violations of Plaintiff’s rights of due process and equal

protection under the law, and the University be ordered to

hold full, open and public hearings on the issues Plaintiff

has demanded as his right, and that clear, concise

guidelines be published as to the rights of students that

U.C. officials must adhere to regardless of the students[’]

category, political beliefs, race, financial or class

status; 

e. That the University be ordered to cease it[s] campaign of

retaliatory actions toward plaintiff and pay damages for

7

Plaintiff seeks $350 million in damages, the court’s

“assumption of jurisdiction over the University of California,” a

tenured professorship “with a completely equipped and staffed

molecular biology lab[,] no duties other than research and

training of graduate students–no bureaucratic or teaching

duties,” and a restraining order proscribing defendants’ entry on

or proximity to plaintiff’s property. Complaint, at pp. 68-69.4

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past actions as prayed for infra;

f. That, in the interest of justice and for the protection of

the students and faculty of the University of California, a

system of civilian–i.e. faculty and student–review of

complaints against UCDPD officers be established, with full

rights to fire police officers found to be a danger to the

rights and safety of members of the student community;

g. That Plaintiff be permitted to re-enroll in his former field

of study with full credit for past accomplishments under the

rules as published during his time at the University and,

further, that a system be established to assure that all

students had equal rights under the bylaws of the University

and are informed accordingly.

In addition . . .Plaintiff is entitled to reinstatement to

the doctoral program, or his doctoral degree, his work

having been completed and the minimum requirements

fulfilled. . . . As further equitable relief, Plaintiff

further asks that Defendants be restrained: (a) From

entering onto or approaching within 100 yards of Plaintiff’s

property; without a search warrant or other probable cause .

. .

8

The complaint includes a “motion for class certification”

for “Ashkenazi Jews, African-Americans, Asian-Americans,

Hispanic-Americans, women, individuals disabled by clinical

depression and other emotional/mental conditions, and sexual

minorities, particularly graduate students of the University of

California in any of the aforementioned groups and U.C. students

in general.” Complaint, at pp. 61-62.

This complaint is strikingly similar to plaintiff’s 

complaints filed in this court in two prior actions, both

dismissed after repeated opportunities to amend. 

The first case was Howard Alan Zochlinski v. County of

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5 Plaintiff initially lodged the complaint on June 5, 1995, in the U.S.

District Court for the Northern District of California. The Northern District

transferred the case to this district by order filed August 28, 1995.

6 Former 28 U.S.C. § 1915(d) provided that upon the filing of an

application to proceed in forma pauperis “[t]he court . . . may dismiss the

case . . . if satisfied that the action is frivolous or malicious.”

7 Judge Levy reasoned (January 22, 1996 Order at p. 2):

Plaintiff’s complaint is a rambling and unintelligible two-hundred

page document that names over sixty-one defendants and alleges

discrimination spanning three decades. The court has determined,

therefore, that the complaint does not contain a short and plain

statement of the claims as required by Fed. R. Civ. P. 8(a)(2). 

Although the Federal Rules adopt a flexible pleading policy, a

complaint must give fair notice and state the elements of the

claim plainly and succinctly. Jones v. Community Redevelopment

Agency of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984). Because

plaintiff has failed to comply with the requirements of Fed. R.

9

Yolo et al., Civ. S 95-1687 DFL DAD PS, filed in 19955 against the

Yolo County District Attorney’s Office, the U.C. Davis Police

Department, U.C. Davis administrators and regents, and others

alleging civil rights violations based on plaintiff’s 1993 and

1994 arrests and his disqualification from U.C. Davis commencing

December 1992. The initial 204-page complaint was lodged with an

application to proceed in forma pauperis. The Honorable David F.

Levi granted plaintiff’s application but dismissed the complaint

as frivolous under former 28 U.S.C. § 1915(d)6 for failure to

comply with Fed. R. Civ. P. 8(a)(2) (requiring “a short and plain

statement of the claim showing that the pleader is entitled to

relief”). Judge Levi found the complaint “a rambling and

unintelligible two-hundred page document that names over sixtyone defendants and alleges discrimination spanning three

decades.”7 

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Civ. P. 8(a)(2), the complaint must be dismissed as frivolous.

8 Judge Levi reasoned (April 3, 1996 Order, at pp. 2-3): 

A review of the complaint reveals that many of plaintiff’s

claims are frivolous because they are clearly time-barred. See

Cal. Code Civ. Proc. § 340 (one year statute of limitations for

claims of malicious prosecution, battery, intentional infliction

of emotional distress); DeAnza Properties, Ltd. v. County of Santa

Cruz, 936 F. 2d 1084, 1085 (9th Cir. 1991) (one year statute of

limitations for section 1983 claims in California). Further, it

is impossible to discern from plaintiff’s rambling complaint which

of the more than sixty named defendants are sued under the claims

that may be timely. The court will not order the Marshal’s

service to serve each and every named defendant when plaintiff has

again failed to submit a short and plain statement of his claim as

required by Fed. R. Civ. P. 8(a).

Accordingly, plaintiff’s application to proceed in forma

pauperis is denied, and his complaint dismissed without prejudice

under 28 U.S.C. § 1915(d). If plaintiff wishes to proceed upon

his complaint as currently filed, he may pay the filing fee and

serve the defendants at his own expense. If plaintiff persists in

his desire to obtain in forma pauperis status, he must file within

21 days a complaint that is reasonably succinct and that clearly

sets forth which defendants are sued under which causes of action.

10

After repeated extensions of time, plaintiff filed a 50-

page amended complaint on March 14, 1996, which Judge Levi again

dismissed as frivolous under former 28 U.S.C. § 1915(d) for

failure to comply with Rule 8(a). Judge Levi noted that some

claims were clearly time-barred and “it is impossible to discern

from plaintiff’s rambling complaint which of the more than sixty

named defendants are sued under the claims that may be timely.” 

The dismissal was without prejudice to further amendment under

the in forma pauperis statute or payment of the filing fee.8

Plaintiff lodged a second amended complaint (captioned

“First Amended Complaint”) on June 3, following additional

extensions of time, which Judge Levi again dismissed pursuant to

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9 The final complaint dismissed in Howard Alan Zochlinski v. County of

Yolo et al., Civ. S 95-1687 DFL DAD PS, named approximately 67 defendants and

captioned nearly 30 causes of action distilled in the text to the following

nine: 

First Cause of Action–Intentional Tort: 

Plaintiff v. Yau [graduate student who accused plaintiff of stalking]

Second Cause of Action–Deprivation of Civil Rights: 

Yau, University and County Defendants

Third Cause of Action–Deprivation of Civil Rights: 

University and Yolo County 

Fourth Cause of Action–Deprivation of Civil Rights: 

University Defendants Only 

Fifth Cause of Action–Discrimination and Civil Rights:

University Defendants and UC Regents

Sixth Cause of Action–California Civil Rights: 

C.C. [Civil Code] §§ 51, 51.5, 51.7, 52, and 52.1: 

All Defendants

Seventh Cause of Action–False Arrest:

Govt. Code §§ 815.2, 815.6, 820, 820.4 & C.C. § 43.55

All Defendants

Eighth Cause of Action–Declaratory Relief and Injunctive Relief:

Government Code § 821.6 is Unconstitutional

Ninth Cause of Action–Deprivation of Civil Rights & Discrimination: 

City of Davis Defendants

11

former 28 U.S.C. § 1915(d) for failure to comply with Rule 8(a).9

Judge Levi ruled, “The court will entertain no further requests

from plaintiff to proceed in forma pauperis. If plaintiff seeks

to proceed further in the action, he must pay the filing fee and

serve defendants.” February 14, 1997, Order, at p. 2. 

Plaintiff appealed to the Ninth Circuit which denied

plaintiff’s application to proceed there in forma pauperis and

ruled, “The district court properly denied Zochlinski’s request

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10 28 U.S.C. § 1915(e)(2)(as amended 1996) provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that

may have been paid, the court shall dismiss the case at any time

if the court determines that . . .

(B) the action or appeal--

(I) is frivolous or malicious;

(ii) fails to state a claim on which relief may be

granted; or

(iii) seeks monetary relief against a defendant who is

immune from such relief.

12

to proceed in forma pauperis and dismissed his second amended

complaint because his second amended complaint is unintelligible. 

See Neitzke v. Williams, 490 U.S. 319, 324, 327-28 (1989).” 

Plaintiff did not further pursue the matter.

In April 2002, plaintiff commenced Howard Alan Zochlinski

v. The University of California et al., Civ. S 02-2336 LKK DAD

PS. That complaint, both as originally filed and as amended, is

virtually identical to the pending complaint. The court granted

plaintiff’s application to proceed in forma pauperis but

dismissed the complaint with leave to amend pursuant to 28 U.S.C.

§ 1915(e)(2)10 for failure to comply with Rule 8(a)(2), finding

the allegations of the complaint “so vague and conclusory that

[the court] is unable to determine whether the current action is

frivolous or fails to state a claim for relief.” October 23,

2002, Order of Magistrate Judge Dale A. Drozd, p. 4. The court

thereafter granted plaintiff’s request for extension of time to

file an amended complaint but dismissed the complaint pursuant to

28 U.S.C. § 1915(e)(2) “without further leave to amend” because

it was both frivolous and failed to state a claim. 

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13

As adopted April 21, 2003, by the Honorable Lawrence K.

Karlton, Judge Dale A. Drozd found in his Amended Findings and

Recommendations filed March 14, 2003 (pp. 3-4):

The amended complaint contains essentially the same

allegations as plaintiff’s initial attempt to state a

claim, which the undersigned found to be deficient. It

alleges that plaintiff “has been involved with the

University of California as a student and/or employee from

1971 through 1976 and 1984 through 1992.” (Am. Compl. At

8.) According to the amended complaint, plaintiff’s

efforts to attend and/or work at the University have been

thwarted by the more than one hundred named defendants,

including the Regents of the University of California and

various departments and faculty, staff and students

associated with the University of California system over

the past thirty years. Plaintiff’s amended complaint is

fifty-five pages long and difficult to decipher. It

contains the same litany of purported federal claims,

including a purported claim under the Thirteenth Amendment. 

It also repeats the same list of alleged state law claims,

such as conspiracy and defamation, and attempts to allege a

claim under the California Penal Code. Finally, in his

amended complaint plaintiff again prays that this court

“assume jurisdiction over the University of California” and

order that plaintiff “be given a tenured professorship at

the UC campus of his choice.” (Am. Compl. At 54). In his

amended complaint plaintiff seeks $150 million in damages.

. . . The undersigned finds that plaintiff’s complaint is

legally frivolous and fails to state a claim upon which

relief can be granted.

Judge Karlton opined that plaintiff’s subsequent appeal

to the Ninth Circuit was “not taken in good faith for the reasons

expressed in the magistrate judge’s findings and

recommendations.” Order filed May 30, 2003. Plaintiff paid the

filing fee on appeal and the Ninth Circuit affirmed without

discussion on June 28, 2005. 

Plaintiff filed the present action in state court on July

25, 2003, three months after this court dismissed Civ. S 02-2336

LKK DAD PS and while his appeal on that matter was pending in the

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14

Ninth Circuit.

Defendants move to dismiss pursuant to Fed. R. Civ. P.

12(b)(6) on the ground plaintiff has failed to state a claim upon

which relief can be granted.

As a general rule, on a motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(6), the court must accept plaintiff’s

allegations as true, read the complaint most favorably to

plaintiff, give plaintiff the benefit of every reasonable

inference that appears from the pleading and argument of the case

and dismiss the complaint only if it is clear that no relief

could be granted under any set of facts that could be proved

consistent with the allegations. Wheeldin v. Wheeler, 373 U.S.

647, 658 (1963); Retail Clerks International Association, Local

1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754, n. 6 (1963);

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). “A Federal

Rule 12(b)(6) dismissal is inappropriate unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

the claim entitling plaintiff to relief. The district court’s

dismissal of a complaint without leave to amend . . . is improper

unless it is clear that the complaint could not be saved by any

amendment.” Livid Holdings Ltd. v. Salomon Smith Barney, Inc.,

__ F. 3d___, 2005 WL 1803885, *3 (9th Cir. 2005) (citations

omitted). 

The pending complaint is substantively distinguishable

from the complaint dismissed in Civ. S 02-2336 LKK DAD PS in only

the following negligible ways: (1) the pending complaint

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11 The final complaint dismissed in Howard Alan Zochlinski v. The

University of California et al., Civ. S 02-2336 LKK DAD PS formally asserted

the following causes of action (Complaint, at pp. 45-53) (note the

similarities of these causes of action with those of the present complaint as

set forth in note 3, supra):

First Cause of Action–Intentional Tort: Deprivation of Civil

Rights: University Defendants–Interference with Educational and

Career Goals and Advancement & Breach of Contract

Second Cause of Action–Intentional/Negligent Tort: Deprivation of

Civil Rights: University Defendants–Interference with Educational

and Career Goals and Advancement; Deny & Prevent Employment &

Breach of Contract

Third Cause of Action–Intentional Tort: Deprivation of Civil

Rights: University Defendants–Interference with Educational &

Career Goals & Advancement; Breach of Contract; Deny & Prevent

Employment & Breach of Contract:–Libel, Slander and Defamation of

Character

15

includes as defendants the category “Former Regents” while the

prior complaint listed former regents by name; (2) the pending

complaint names two new defendants--“V. Chancellor Judy Sakaki”

and “Douglas Minnis”--both of whom are U.C. Davis administrators;

(3) the pending complaint includes more recent “facts,” and (4)

the introductory caption of the pending complaint lists “new”

claims of “abusive/illegal use of police power,” “violations of

plaintiff’s liberty and property rights,” “fraud,” “deliberate

and/or negligent misuse of personnel under color of state

authority,” and “deliberate and/or negligent mistraining of

personnel;” dropped were “libel and slander,” “harassment and

discrimination,” and “conspiracy.” ALL of these allegations were

included in some form in Civ. S 02-2336 LKK DAD PS, the

allegations of abusive police practices more specifically in Civ.

S 95-1687 DFL DAD PS.11

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Fourth Cause of Action–Intentional Tort: Deprivation of Civil

Rights: University Defendants–Interference with Educational and

Career Goals and Advancement; Breach of Contract–Libel, Slander

and Defamation of Character

Fifth Cause of Action–Deprivation of Civil Rights &

Discrimination: University Defendants–Policy, Custom and Practice

& Class Action

Sixth Cause of Action–Deprivation of Civil Rights, California C.C.

[Civil Code] §§ 51, 51.5, 51.7, 52, 52.1, and 52.3: All

Defendants

Seventh Cause of Action–Breach of Contract 

[dropped as separate cause of action in pending complaint but

incorporated in first, third and fourth causes of action]

Eighth Cause of Action–Relief as Court Deems Appropriate Based on

the Facts

Ninth Cause of Action–Special Allegation of Racial Animus

[dropped as separate cause of action in pending complaint] 

Tenth Cause of Action–Special Allegation of Continuing Harm

[dropped as separate cause of action in pending complaint] 

Eleventh Cause of Action–Special Allegation of Invasion of Privacy and

Animus Based on Disability

[dropped as separate cause of action in pending complaint]

Eleventh Cause of Action [sic]– Special Allegation of Conspiracy

Twelfth Cause of Action–Declaratory Relief: That California

Government Code § 821.6 is Unconstitutional

16

These minor variations in the complaints do not create

substantive distinctions or new causes of action.

Dismissal of plaintiff’s complaint without leave to amend

is therefore warranted on the following several grounds.

First, the pending complaint, like those previously

filed, fails to comply with Fed. R. Civ. P. 8(a)(2). Plaintiff 

again has failed to align his expansive claims with specific

defendants and time periods and thus failed to provide

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intelligible statements of his claims and entitlement to relief. 

The complaint fails to articulate any viable claim. 

The complaint should be dismissed without leave to amend. 

The determination that a complaint cannot be “saved by amendment”

depends upon the same factors underlying the court’s assessment

whether to deny leave to amend under Fed. R. Civ. P. 15(a). 

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-1052

(9th Cir. 2003). “If the underlying facts or circumstances

relied upon by a plaintiff may be a proper subject of relief, he

ought to be afforded an opportunity to test his claim on the

merits. In the absence of any apparent or declared reason-such

as undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, futility of amendment,

etc.--the leave sought should, as the rules require, be ‘freely

given.’” Foman v. Davis, 371 U.S. 178, 182 (1962) (Rule 15(a)). 

“Not all of the factors merit equal weight. As this circuit and

others have held, it is the consideration of prejudice to the

opposing party that carries the greatest weight. Prejudice is

the touchstone of the inquiry under Rule 15(a). Absent

prejudice, or a strong showing of any of the remaining Foman

factors, there exists a presumption under Rule 15(a) in favor of

granting leave to amend.” Eminence Capital, 316 F.3d at 1052

(citations and internal quotations omitted).

Applying these considerations to the pending complaint,

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it is clear that granting plaintiff leave to amend would be

futile. Plaintiff has demonstrated time and again his inability

to cure deficiencies in his complaints despite ample opportunity,

specific instructions and repeated extensions of time. It would,

moreover, be unduly prejudicial to defendants to permit further

amendment of the pending complaint. Defendants have been tasked

for more than ten years with defending the same set of facts in

state and federal court. Plaintiff’s repeated filings coupled

with his failure adequately to present his claims suggests

harassment as a motive this court should not further tolerate. 

Plaintiff’s complaint should also be dismissed without

leave to amend based on principles of res judicata. Before the

1996 amendment of section 1915, dismissal of a complaint pursuant

to the in forma pauperis statute was without prejudice to the

court’s reconsideration of the complaint upon payment of the

filing fee. “Because a § 1915(d) dismissal [was] not a dismissal

on the merits, but rather an exercise of the court’s discretion

under the in forma pauperis statute, the dismissal [did] not

prejudice the filing of a paid complaint making the same

allegations. It could, however, have a res judicata effect on

frivolousness determinations for future in forma pauperis

petitions.” Denton v. Hernandez, 504 U.S. 25, 34 (1992). “A

dismissal under section 1915(d) . . . [was] not a dismissal on

the merits or a bar to the filing of a paid complaint: it

mean[t] only that the litigant may not file the complaint at

government expense.” Bator v. State of Hawaii, 39 F.3d 1021,

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12 Moreover, under section 1915(d), a complaint that failed to state a

claim was not automatically frivolous and could not be dismissed on that basis

alone. Neitzke v. Williams, supra, 490 U.S. at 331, 327 (section 1915(d)

“accords judges not only the authority to dismiss a claim based on an

indisputably meritless legal theory, but also the unusual power to pierce the

veil of the complaint’s factual allegations and dismiss those claims whose

factual contentions are clearly baseless”).

13 The Ninth Circuit held in Barren v. Harrington, 152 F.3d at 1194,

“The language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of

Civil Procedure 12(b)(6). We join our sister circuits and employ the same de

novo standard to review such dismissals as we use to review dismissals

pursuant to 12(b)(6).” 

14 Leave to amend should be afforded equally to pro se plaintiffs

proceeding in forma pauperis and on a fee-paid basis. Lopez v. Smith, 203

F.3d 1122, 1128 (9th Cir. 2000).

19

1026 (9th Cir. 1994), citing Denton.

12

In contrast, dismissal with prejudice after leave to

amend for failure to state a claim under section 1915(e)(2)(B)

(ii) appears to be res judicata for all further purposes. 

Section 1915(e)(2)(B)(ii) permits dismissal of an informa

pauperis complaint that “fails to state a claim on which relief

may be granted.” The Ninth Circuit applies the same de novo

standard in reviewing a dismissal under 28 U.S.C. §

1915(e)(2)(B)(ii) as it does in reviewing a dismissal under Fed.

R. Civ. P. 12(b)(6), Barren v. Harrington, 152 F.3d 1193, 1194

(9th Cir. 1998),13 and the same considerations are required by the

district courts in determining whether to dismiss under either

standard. Hence, after granting leave to amend,14 Judge Drozd in

Civ. S 02-2336 LKK DAD PS set forth the Rule 12(b)(6) standard

before recommending dismissal under section 1915(e)(2).

Since a dismissal for failure to state a claim under Fed.

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15 This conclusion is supported under these facts by the adversarial

process inherent in a 12(b)(6) motion. See Neitzke v. Williams, supra, 490

U.S. at 329-330 (under Rule 12(b)(6) a plaintiff is accorded notice of the

motion to dismiss and an opportunity to respond).

20

R. Civ. P. 12(b)(6) is a judgment on the merits (Federated

Department Stores, Inc. v. Moitie, 452 U.S. 394, 399, n. 3

(1981), and cases cited therein), the same is true of a 

dismissal for failure to state a claim under 28 U.S.C. §

1915(e)(2)(B)(ii).15 “Under res judicata, a final judgment on the

merits bars further claims by parties or their privies based on

the same cause of action. Res judicata prevents litigation of

all grounds for, or defenses to, recovery that were previously

available to the parties, regardless of whether they were

asserted or determined in the prior proceeding. Res judicata

thus encourages reliance on judicial decisions, bars vexatious

litigation, and frees the courts to resolve other disputes.” 

Brown v. Felsen, 442 U.S. 127, 131 (1979) (citations and internal

quotations omitted).

The two additional defendants named by plaintiff are both

U.C. Davis administrators and hence are in privity with the

defendants in Civ. S 02-2336 LKK DAD PS. The recaptioning and

reorganization of plaintiff’s claims assert nothing new or, more

generously, assert nothing that plaintiff was precluded from

asserting in the prior proceeding.

These findings and recommendations are submitted to the

Honorable David F. Levi, the United States District Judge

assigned to this case. 28 U.S.C. § 636(b)(l). Written

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objections may be filed within ten days after being served with

these findings and recommendations. The document should be

captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” The failure to file objections within the

specified time may waive the right to appeal the District Court’s

order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Dated: September 7, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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