Anne Block v. Snohomish County ( 2018 )

FILED
NOT FOR PUBLICATION
APR 27 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNE BLOCK, Esquire, an individual, Nos. 15-35569
16-35515
Plaintiff-Appellant,
D.C. No. 2:14-cv-00235-RAJ
v.
SNOHOMISH COUNTY, a Washington MEMORANDUM*
County and Municipal Government; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted April 13, 2018**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and TEILBORG,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James A. Teilborg, United States District Judge for the
District of Arizona, sitting by designation.
In appeal No. 15-35569, Plaintiff Anne Block (“Block”) appeals the dismissal
with prejudice of her second amended complaint against Snohomish County, the City
of Gold Bar, and various individual defendants. In appeal No. 16-35515, Block
appeals the attorneys’ fees order, in which the court determined Block’s claims were
frivolous and in bad faith and awarded fees to the defendants. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
I. Case Management Order
Block argues that the court’s July 28, 2014 order staying the case demonstrated
bias by Judge Jones in order to keep himself on the case and was essentially a
preliminary injunction prohibiting pure speech. The court issued the order in response
to a motion for sanctions against Plaintiff, which indicated Plaintiff, who was
representing herself at the time, had been verbally abusive to opposing counsel,
surreptitiously recorded conversations, and attempted to contact defendants directly
about the case.
The court has the inherent authority to manage the case before it. United States
v. Grace, 526 F.3d 499, 509 (9th Cir. 2008); see Fed. R. Civ. P. 16. Confronted with
litigious parties who were filing competing motions for sanctions before it had even
ruled on the pending motion to dismiss, the district court noted:
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The record before the court reflects that this litigation threatens to spiral
out of control. It also reflects that Plaintiff’s communications with
opposing counsel and opposing parties in this case falls well below the
standards of civility that this court expects from litigants.
This action effectively ensured a time-out to deal with the potentially dispositive
motion without further disruption.
Contrary to Block’s suggestion, the court’s order did not prohibit protected First
Amendment speech in any way, except to preclude “communication between Plaintiff
and any Defendant about this lawsuit,” unless the communication involved a
settlement offer or a good faith request for a stipulation/stipulated motion. There was
no abuse of discretion in entering the stay. See Aloe Vera of America v. United States,
376 F.3d 960, 964–65 (9th Cir. 2004) (“All federal courts are vested with inherent
powers enabling them to manage their cases and courtrooms effectively . . . . We defer
to the determination of courts on the front lines of litigation [that a particular course
of action is required] because deference will enhance these courts’ ability to control
the litigants before them.” (internal quotation marks and citation omitted)).
II. Recusal
Block further argues that Judge Jones should have recused himself because he
was a member of the Washington State Bar Association (“WSBA”). In a joint status
report in June 2014, Block mentioned wanting to add counsel for the County, the
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WSBA, and WSBA disciplinary counsel as additional defendants, and the existing
defendants indicated their belief that Block lacked a basis in law or fact to add these
defendants. Approximately a month later, Block filed an amended complaint which
did not attempt to add such parties, but sought to amend claims in the complaint
against Snohomish County employee Kevin Hulten. Thus, at the point the court
issued the litigation stay discussed above, the WSBA was not actually a party to the
case, and the judge had no financial interest in the subject matter in controversy, and
thus there was no basis for the judge even to consider whether to recuse himself. See
28 U.S.C. § 455(b)(4).
III. Rule 12(b)(6) Dismissal
We review de novo a dismissal for failure to state a claim. N. Cnty. Cmty.
Alliance, Inc. v. Oviatt, 573 F.3d 738, 741 (9th Cir. 2009). Although we must
generally accept allegations in the complaint as true, we are not “required to accept
as true allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009). In her second amended
complaint, Block attempted to state claims for retaliation, RICO and Sherman Act
violations.
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A. Retaliation
To prove a § 1983 claim for retaliation, Block needed to establish that her
speech is protected by the First Amendment, that the defendants took an adverse
action against her that was reasonably likely to deter speech, and that the adverse
action was prompted by the exercise of her First Amendment rights. See, e.g.,
Sorrano’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989); Skoog v.
County of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006). She also needed to show
that the conduct complained of was taken by defendants acting under color of state
law. Soranno’s, 874 F.2d at 1313–14.
As the district court explained, Block’s complaint fails to adequately allege a
claim of retaliation. It is often unclear which defendants she alleges took which
actions against her; where it is clear who allegedly took the action, she fails to
adequately link the alleged action to an exercise of her First Amendment rights, or
create a plausible inference that the actions were taken for a retaliatory purpose as
opposed to making a legitimate complaint about her to the police or the state bar
organization. In other instances, the conduct she alleged, such as spreading
misinformation about her criminal or mental health history, or putting articles on
Wikipedia about her, is more aptly described as defamation, for which Block might
have a tort remedy under state law, but which is not actionable retaliation under §
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1983. See Gini v. Las Vegas Metropolitan Police Dep’t, 40 F.3d 1041, 1045 (9th Cir.
1994).
B. RICO
To establish a civil RICO violation, a plaintiff must plead conduct of an
enterprise through a pattern of racketeering activity causing injury to plaintiff’s
business or property. Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996); see also
18 U.S.C. § 1961 (describing acts that qualify as racketeering activity).
However, Block failed to plead a requisite predicate act for a RICO violation.
Although Block attaches a conclusory “extortion” label to a number of alleged
acts–including destroying records, writing a negative letter about her, and filing a bar
complaint–extortion as used in the RICO context requires showing that the defendant
received something of value which can be “exercised, transferred or sold.” United
States v. McFall, 558 F.3d 951, 956 (9th Cir. 2009) (conduct which merely interferes
with or deprives someone of property is not sufficient to constitute Hobbs Act
extortion); 18 U.S.C. § 1951(b); Wash. Rev. Code § 9A.56.110. Block does not allege
what property or thing of value was wrongfully obtained from her as a result of the
alleged extortion. She similarly failed at her attempt to allege a predicate act of
“bribery,” in which she contends the City “bribed” a city water employee who was
stealing from it by paying him $10,000 to keep quiet. We agree that this is not a bribe
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of a public official to induce an official act or omission, see 18 U.S.C. § 201, and,
moreover, that this allegation is wholly implausible, as a person committing a crime
needs no incentive to keep quiet.
C. Sherman Act
Block’s antitrust claim invokes § 1 of the Sherman Act, and she must plead
evidentiary facts which would prove a contract or conspiracy among two or more
persons or entities, with the intent to harm or restrain trade, and which actually injures
competition. Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008).
Block’s claim again fails for many reasons, including that it is primarily directed at
a non-party, there is no plausible allegation that the WSBA conspired with any of the
named defendants for this or any other purpose, and there are no evidentiary facts pled
that would support Block’s allegation that the WSBA targets solo practitioners and
minorities in disciplinary proceedings in order to steer services toward favored groups
or that this targeting has resulted in higher costs for legal services.
For these reasons, Block’s complaint was properly dismissed for failure to state
a claim.
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IV. Attorneys’ Fees
A ruling on attorneys’ fees is generally reviewed for abuse of discretion. Maag
v. Wessler, 993 F.2d 718, 719 (9th Cir. 1993). We review the court’s analysis of the
law de novo and its factual determinations for clear error. Corder v. Gates, 104 F.3d
247, 249 (9th Cir. 1996).
We find no error in the assessment of Block’s claims as “entirely groundless
and frivolous,” which supplies an adequate basis for a fee award under § 1988. Tutor-
Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006). On appeal, Block
does not contest the court’s calculation of applicable fees.
For the foregoing reasons, we affirm both appeals.
AFFIRMED.
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