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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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11 GEORGE JARVIS AUSTIN, Case No. 4:20-cv-6363-YGR

12 Plaintiff, ORDER OF DISMISSAL WITH PREJUDICE

13 vs. Re: Dkt. Nos. 152, 156, 160, 163, 167, 171, 173, 179, 180, 187, 196, 198, 210, & 212 14 LISA NHU, ET AL.,

15 Defendants.

16 17 On February 7, 2022, pro se plaintiff George Jarvis Austin filed his second amended 18 complaint (“SAC”) alleging causes of action for intentional discrimination, invasion of privacy, and 19 whistleblower retaliation.1 Once again, plaintiff names as defendants: (1) Gallagher Bassett 20 Services, Inc. (“GB”), incorrectly sued as Gallagher Bassett; (2) U.S. Department of Health and 21 Human Services (“HHS”); (3) Dr. Lisa Nhu, incorrectly sued as Lisa Nhu Atlina; (4) Sean Ducar; 22 (5) Maribeth Arendt; (6) Everest National Insurance Company (“Everest”), incorrectly sued as 23 Everestre; (7) County of San Joaquin, sued as San Joaquin General Hospital (the “County”); and (8) 24 Guido Gaiteri. 25 26

27 1 Plaintiff’s filing of the SAC was untimely. Since plaintiff filed two second amended 28 complaints, the Court ordered that the SAC at Docket Number 149 was the operative complaint. 1 Currently pending are seven motions to dismiss brought by all named defendants as well as 2 plaintiff’s “motion[s] for judgment” filed concurrently with his responses to defendants’ motions.2 3 Although some of plaintiff’s motions are styled as motions for summary judgment, the Court 4 construes each of his motions as those for judgment on the pleadings given the posture of this case. 5 Having carefully reviewed the pleadings and the briefing on the motions, the Court hereby GRANTS 6 the motions to dismiss WITHOUT LEAVE TO AMEND. Plaintiff’s motions for judgment on the 7 pleadings are DENIED AS MOOT. 8 DISCUSSION 9 As a preliminary issue, the Court addresses its jurisdiction given plaintiff’s appeal. Plaintiff 10 has filed several notices of appeal. “The Ninth Circuit follows the general rule, with some 11 exceptions, that the filing of a notice of appeal divests the district court of jurisdiction over the 12 matters appealed.” Donovan v. Mazzola, 761 F.2d 1411, 1414 (9th Cir. 1985). Nevertheless, the 13 “filing of a notice of appeal does not divest a district court of its jurisdiction over matters ancillary to 14 the appeal[.]” Brennan v. Opus Bank, 796 F.3d 1125, 1134 (9th Cir. 2015). The Court understands 15 that plaintiff has sought to appeal the denial of his IFP application and the denial of default. In his 16 notices, he admits that the Ninth Circuit does not have jurisdiction. (See Dkt. Nos. 216 & 223.) 17 Indeed, the Ninth Circuit dismissed his appeal for lack of jurisdiction and plaintiff frivolously filed 18 an amended notice which the Court construes as an attempt to preserve appeal rights following a 19 final determination of the pending motions. The Court addresses the pending motions because they 20 do not concern the specific matters appealed. 21 Rule 12(b)(5) of the Federal Rules of Civil Procedure authorizes a defendant to move for 22 dismissal of an action for insufficient service of process. Fed. R. Civ. P. 12(b)(5). When a 23 defendant challenges service, the plaintiff bears the burden of establishing the validity of service as 24 governed by Rule 4. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). Personal 25 jurisdiction is lacking since plaintiff has failed to serve the complaint and summons as previously 26 2 Plaintiff moved to remove his objection filings in connection with the motion. (Dkt. No. 27 196.) That motion is granted and the objections are not considered. At Docket Number 198, plaintiff 28 also requested the e-filing guide and direction to pro se resources. Plaintiff was provided with this information at the initial stages of the litigation. (See Dkt. No. 24.) 1 ordered. See Direct Mail Specialists Inc. v. Eclat Computerized Tech., 840 F.2d 685, 688 (9th Cir. 2 1988) (“A federal court does not have jurisdiction over a defendant unless the defendant has been 3 properly served under Fed. R. Civ. P. 4.”). Plaintiff has not attempted to demonstrate that any of the 4 defendants were properly served with the summons and complaint. His suggestion that the 5 defendants were served by receiving notice of the complaint on ECF is insufficient. While Rule 4 6 “is a flexible rule that should be liberally construed,” neither “actual notice[ of an action,] nor simply 7 naming the person in the caption of the complaint, will subject defendants to personal jurisdiction if 8 service was not made in substantial compliance with Rule 4.” Crowley v. Bannister, 734 F.3d 967, 9 975 (9th Cir. 2013) (internal citations, quotation marks, and alterations omitted). Thus, service is 10 improper as to the defendants.3 11 Even if service was proper, the SAC fails to comply with Federal Rules of Civil Procedure 8 12 and 10 and can be dismissed on this basis. Federal Rule of Civil Procedure 8(a) provides that a 13 “pleading that states a claim for relief must contain . . . a short and plain statement of the claim.” 14 Fed. R. Civ. P. 8(a). Courts routinely dismiss complaints such as plaintiff’s that are convoluted and 15 difficult to follow for failure to comply with that rule. See, e.g., McHenry v. Renne, 84 F.3d 1172, 16 1179-80 (9th Cir. 1996) (“Prolix, confusing complaints such as the ones plaintiffs filed in this case 17 impose unfair burdens on litigants and judges.”); Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 18 2013) (recognizing that complaints can be dismissed for failure to comply with Rule 8(a) and noting 19 the plaintiff’s complaint had been dismissed for failure to comply); Nevijel v. N. Coast Life Ins. Co., 20 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming dismissal where complaint was “verbose, confusing 21 and almost entirely conclusory”). Additionally, Federal Rule 10(b) provides that “[a] party must 22 state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set 23 of circumstances.” 24 Throughout the duration of these proceedings, plaintiff’s complaint has been shortened from 25 over 180 pages to 40 pages without any specific numbered paragraphs. However, the entire 40-page

26 3 There are “affidavits” of service that predated the actual issuances of summons on the docket. Others are subsequent to some summonses being issued. However, many of the affidavits 27 include unsigned documents and do not properly identify who was served, the method of, or indicate 28 that it was received. Plaintiff has made no effort to otherwise demonstrate that service was properly carried out despite his burden. 1 SAC is still conclusory, prolific, and substantively incomprehensible. It contains numerous 2 quotations from assorted books and songs and is heavy on legal citation without reference to facts 3 pertaining to his case. In several instances, he lumps all defendants together without distinguishing 4 between their specific actions. His failure to plausibly allege facts in support of his purported claims 5 is detrimental and his SAC is dismissed. Since plaintiff has been advised of the deficiencies on 6 several occasions and has failed to address them, dismissal without leave to amend is appropriate.4 7 The foregoing reasons are sufficient to dismiss plaintiff’s SAC in its entirety. However, 8 given his status as a pro se litigant, and in further support of futility, the Court notes several 9 deficiencies with the SAC. 10 To begin, the Court previously noted that workers’ compensation in California provides the 11 exclusive remedy for any claims within the “compensation bargain.” Fermino v. Fedco, Inc., 7 Cal. 12 4th 701, 713-14 (1994). Setting aside the fact that plaintiff fails to plausibly allege any entitlement 13 to workers’ compensation, much of his SAC concerns his failure to obtain or be paid workers’ 14 compensation for an accident that is devoid of any factual enhancement (despite the prolific nature 15 of the SAC). This failure to process his claims, including any allegations that the process was a 16 sham, frivolous, or fraudulent are still within the compensation bargain. Charles J. Vacanti, M.D., 17 Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800, 823 (2001). Thus, his SAC is barred in part. 18 Previously, the Court found that plaintiff’s invasion of privacy claim premised on the alleged 19 disclosure of his medical records in violation of HIPPA failed because there is no private right of 20 action under HIPPA. This has not changed. See Webb v. Smart Document Solutions, LLC, 499 F.3d 21 1078, 1081 (9th Cir. 2007) (“HIPAA itself provides no private right of action.”). As alleged, 22 plaintiff’s invasion of privacy claim is still premised upon an alleged violation of HIPPA. 23 As to HHS, the Court previously advised plaintiff that the Court lacks subject because any 24 purported failure to enforce HIPAA is barred by sovereign immunity. Furthermore, sovereign 25 immunity bars claims brought against the United States for violations of 42 U.S.C. § 1985. The 26 4 The oppositions to the motions illustrates how sprawling plaintiff’s SAC is and how he 27 fundamentally misunderstands his pleading obligations. For instance, he suggests that he has 28 defamation, theft, conversion, and fraud claims. There are no specific causes of action in the SAC to support such claims. 1 statute is directed at state action and is not a waiver as to the United States. A Bivens claim, while 2 not alleged, also fails since a federal agency is not a federal actor. FDIC v. Meyer, 510 U.S. 471, 3 484-86 (1994). Thus, the SAC against HHS fails in its entirety. 4 Defendant Ardent is also an administrative law judge for the State of California’s Workers’ 5 Compensation Appeals Board. While conclusory allegations suggest that she abused the process in 6 connection with plaintiff’s workers’ compensation proceedings by issuing a subpoena for plaintiff’s 7 medical records, “[i]t is well settled that judges are generally immune from suit for money 8 damages.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001); Romano v. Bible, 169 9 F.3d 1182, 1186-87 (9th Cir. 1999) (state officials presiding over hearings entitled to absolute 10 immunity).5 There is no indication in the SAC that defendant Ardent acted outside of her official 11 capacity as an administrative law judge. Therefore, the claims are barred by judicial immunity. 12 With respect to plaintiff’s claim for retaliation based upon California Health and Safety Code 13 section 1278.5, which the Court liberally construes as being asserted against Dr. Nhu and the 14 County,6 the statute does not create a claim against individual doctors. See Brenner v. Universal 15 Health Servs. of Rancho Springs, Inc., 12 Cal. App. 5th 589, 602 (2017). Thus, the claim fails as a 16 matter of law against Dr. Nhu. However, “when given its plain meaning, [section 1278.5] provides 17 protection, and a cause of action, solely to the person who himself or herself has engaged in the 18 protected whistleblowing activity (i.e., the patient, or employee or other staff member who presented 19 a grievance complaint or report about patient care, or initiated, cooperated with, or participated in an 20 investigation about patient care) and who suffered discriminatory or retaliatory acts by the health 21 care facility as a result of that whistleblowing activity.” Id. at 606 (emphasis in original).7 As to the 22

23 5 The Court takes the allegation that ALJ Ardent issued the subpoena as true, however, the briefing suggests that another ALJ from a different office issued the subpoena. Plaintiff also suggests 24 that he is seeking injunctive relief to fall outside of judicial immunity, however, the SAC requests 25 damages. In any event, there is no plausible indication that ALJ Ardent abused her authority.

26 6 The Court notes that the SAC broadly refers to defendants, without distinguishing between 27 the defendants’ specific conduct. This pleading tactic violates Rule 8.

28 7 The County places substantial emphasis on the fact that the Court previously cited to cases concerning employee complaints to suggest that only an employee can be protected as a 1 County, plaintiff does not plausibly state a claim for retaliation or discrimination resulting from 2 protected activity. Plaintiff alleges that he set up appointments, weeks in advance, and when he 3 arrived in person they were canceled. Nearly contemporaneous with the cancellation, plaintiff 4 alleges that he called the administrative office of the hospital to complain about an employee’s 5 behavior while officers were called to the scene to remove him from the hospital. However, the 6 cancellation of plaintiff’s appointment, as well as the request to bring officers to remove him from 7 the hospital, predated this communication and there is no indication that he was denied care as a 8 result of his complaint to the administrative office. In fact, plaintiff alleges that he has not gone back 9 for services since the cancellation. There is no indication that he was denied service as a result of 10 the County’s conduct or continues to be denied care. Thus, plaintiff does not plausibly allege that he 11 was discriminated or retaliated against by the County for any protected activity. His claim also fails 12 against the County. 13 Plaintiff also alleges that defendants intentionally discriminated against plaintiff, “a Black 14 man who was temporarily disabled due to car accident, under Federal, and State law.” (Dkt. No. 149 15 at 14.) Plaintiff’s theory of the case is that he was deprived the right to contract based upon his 16 claim for workers’ compensation. It is not entirely clear which laws plaintiff wishes to proceed 17 under. Liberally construing the SAC, it appears that plaintiff is proceeding under 42 U.S.C. § 1981 18 and the California Unruh Civil Rights Act, California Civil Code §§ 51, 52. Section 1981 claims 19 require a showing of intentional discrimination based on race, see Evans v. McKay, 869 F.2d 1341, 20 1344 (9th Cir. 1989), and race must be a but-for cause of a section 1981 plaintiff’s injury. Comcast 21 Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020) (vacating the Ninth 22 Circuit’s opinion that a section 1981 plaintiff need only “plead facts plausibly showing that race 23 played ‘some role’ in the defendant’s decisionmaking process”) (citation omitted). Claims under the 24 Unruh Civil Rights Act also require intentional discrimination. Munson v. Del Taco, Inc., 46 Cal. 25 4th 661, 671 (2009) (to state a claim under the Unruh Act premised on racial discrimination, a 26 plaintiff must plead intentional discrimination). However, plaintiff has not plausibly alleged that he 27

28 whistleblower. As noted, patients can be protected whistleblowers. The SAC alleges that plaintiff is a patient. 1 || was entitled to worker’s compensation, denied that accommodation while similarly situated 2 || individuals received such accommodation, or that his race played any role in the denial of a claim fc 3 || workers’ compensation. While plaintiff's SAC repeatedly suggests that it is “strange” he was denie 4 || benefits, that speculation does not satisfy the plausibility standard. 5 CONCLUSION 6 For the foregoing reasons, the pending motions to dismiss are granted without leave to 7 || amend and the motions for judgment on the pleadings are denied as moot. 8 The Clerk is DIRECTED to close the case and issue a judgment in favor of defendants against 9 || plaintiff. To the extent plaintiff wishes to appeal this final order, he may consult Rule 4 of the 10 || Federal Rules of Appellate Procedure. 11 This Order terminates Docket Numbers 152, 156, 160, 163, 167, 171, 173, 179, 180, 187, 12 || 196, 198, 210, and 212. 3 13 IT Is SO ORDERED. 14

15 || Dated: August 30, 2022

5 UNITED STATES DISTRICT COURT JUDGE 2 18 19 20 21 22 23 24 25 26 27 28