Schleining v. Potts Law
1:25-cv-00056
D. Mont.May 13, 2025Check TreatmentDocket
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CHAD MICHAEL SCHLEINING,
CV 25-56-BLG-SPW
Plaintiff,
ORDER
POTTS LAW PLLC,
Defendant.
Plaintiff, Chad Michael Schleining, a self-represented litigant, filed a
Complaint on April 25, 2025, pursuant to 18 U.S.C. § 1343, § 371, and § 1512(b).
(Doc. 2). Schleining alleges that, Potts Law PLLC (“Potts Law”), via its attorney,
Adrianna Potts, executed a scheme to defraud him of his rightful workers
compensation benefits stemming from an injury sustained at Signal Peak Energy,
LLC’s Bull Mountains Coal Mine in Roundup, Montana. (Jd. at 6).
I. Motion to Proceed in Forma Pauperis
Schleining has moved to proceed in forma pauperis. He has adequately shown
that he is unable to pay the $402 filing fee. His motion (Doc. 1) will be granted and
the filing fee waived.
Screening
When a litigant proceeds in forma pauperis, the Court must dismiss the case
if it is determined that the action (1) is frivolous or malicious, (2) fails to state claim
on which relief may be granted, or (3) seeks monetary relief against defendants who
are immune. 28 U.S.C. § 1915(e)(2). A complaint is frivolous if it “lacks an
arguable basis either in law or in fact,” Neitzke v. Williams, 490 U.S. 319, 325 (1989)
and is malicious if it is “filed with the intention or desire to harm another,” Andrews
v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).
A complaint fails to state a claim upon which relief may be granted if a
plaintiff fails to allege “the grounds of his entitlement to relief.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and alteration
omitted). Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Jd. (internal
quotation marks omitted).
Rule 8 of the Federal Rules of Civil Procedure provides that a complaint “that
states a claim for relief must contain . . . a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy
the requirements in Rule 8, a complaint’s allegations must cross “the line from
conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009).
There is a two-step procedure to determine whether a complaint’s allegations
cross that line. See id. at 690; Twombly, 550 U.S. at 556. First, the Court must
identify “the allegations in the complaint that are not entitled to the assumption of
truth.” Igbal, 556 U.S. at 680. Factual allegations are not entitled to the assumption
of truth if they are “merely consistent with a defendant’s liability,” or “amount to
nothing more than a formulaic recitation of the elements” of a constitutional claim.
Id. at 678, 681 (internal quotation marks omitted). A complaint stops short of the
line between probability and the possibility of relief where the facts pled are merely
consistent with a defendant’s liability. Jd. at 678.
Second, the Court must determine whether the complaint states a “plausible”
claim for relief. Id. at 679. A claim is “plausible” if the factual allegations, which
are accepted as true, “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Jd. at 678. This inquiry is “a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” /d. at 679 (citation omitted). If the factual
allegations, which are accepted as true, “do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not
shown—that the pleader is entitled to relief.” Jd. (citing Fed. R. Civ. P. 8(a)(2))
(internal quotation marks and alteration omitted).
“A document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardu, 551 U.S. 89, 94 (2007) (internal
quotation marks omitted); cf Fed. R. Civ. P. 8(e) (“Pleadings must be construed so
as to do justice.”). Courts must briefly explain deficiencies that may be cured by
amendment, see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), but “need not
provide great detail or . . . act as legal advisors” to the plaintiff, Noll v. Carlson, 809
F.2d 1446, 1448-49 (9th Cir. 1987).
For the reasons described below, Schleining’s Complaint fails to satisfy the
requirements of 28 U.S.C. § 1915(e)(2). As currently pled, the Complaint does not
comply with the pleading requirements under Rule 8 and fails to state a claim upon
which relief may be granted. These deficiencies might be cured by realleging the
claims under an appropriate statute that gives Schleining a private right of action.
Schleining will be given an opportunity to file an amended complaint.
Ill. Schleining’s Claims
Schleining brings claims against Potts Law under 18 U.S.C. § 1343 (Fraud by
wire, radio, or television), 18 U.S.C. § 371 (Conspiracy to commit fraud), and 18
U.S.C. § 1512(b) (Tampering with a witness, victim, or an informant).
Federal criminal statutes that provide for punishment by fine or imprisonment
generally do not create privately enforceable rights or give rise to civil liability.
Keyter v. McCain, 207 Fed. Appx. 801, 802 (9th Cir. 2006); Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980). “When deciding whether to recognize an implied
cause of action, the ‘determinative’ question is one of statutory intent.” Ziglar v.
Abbasi, 582 U.S. 120, 133 (2017) (quoting Alexander v. Sandoval, 532 U.S. 275,
286 (2001)). A cause of action may only be recognized under a statute where the
language Congress uses “displays an intent to create not just a private right but also
a private remedy.” Sandoval, 532 U.S. at 286. This “interpretive inquiry begins
with the text and structure of the statute and ends once it has become clear that
Congress did not provide a cause of action.” Jd. at 288 n.7. Thus, if the statutory
language “itself does not ‘display an intent’ to create ‘a private remedy,” then ‘a
cause of action does not exist and courts may not create one, no matter how desirable
that might be as a policy matter, or how compatible with the statute.’” Ziglar, 580
U.S. at 133 (quoting Sandoval, 532 U.S. at 286-87). It is Schleining’s burden to
establish that a statute confers a private right of action on him. Kraft v. Old Castle
Precast Inc., LA CV 15-00701, 2015 WL 4693220 (C. D. Cal. Aug. 5, 2015); Opera
Plaza Residential Parcel Homeowners’ Ass’n v. Hoang, 376 F.3d 831, 835 (9th Cir.
2004).
Schleining fails to cite any precedential decision establishing that Congress
created a private cause of action under the wire-fraud, conspiracy to commit fraud,
or tampering with a witness statutes. District courts in the Ninth Circuit have held
that no private right of action exists under the wire-fraud statute (18 U.S.C. § 1343).
See Kraft, 2015 WL 4693220 at * 2 (“Plaintiff fails to identify any precedential
decision holding that Congress created a private cause of action under this federal
wire-fraud statute, and there is ample persuasive authority to the contrary.”) Further,
while Courts in the Ninth Circuit have yet to contemplate whether the conspiracy to
commit fraud statute (15 U.S.C. § 1512) or the witness tampering statute (18 U.S.C.
§ 371) create a private right of action, neither statute contains any rights-creating
language that manifests a congressional intent to create an accompanying private
right of action for the victims of such crimes. See Abcarian v. Levine, 972 F.3d
1019, 1026 (9th Cir. 2020). Instead, the statutes merely define the criminal offense
and prescribe the applicable punishment. Therefore, Schleining has failed to allege
a plausible claim for relief.
Schleining will be allowed to file an amended complaint to remedy this issue
and bring his claims under statutes that create a private right of action in civil
matters.
IV. Motion for Temporary Restraining Order and Expedited Review
On May 12, 2025, Schleining filed a Motion for Temporary Restraining Order
and a Motion for Expedited Review of Temporary Restraining Order. (Docs. 6,
7). Schleining motioned to prohibit all Defendants from contacting him, harassing
him, or terminating his workers' compensation benefits. Because this Court has
determined that Schleining has failed to plead a plausible claim for relief, both his
motions are denied as moot. Schleining may refile these motion after filing his
amended complaint, and if the Court determines that he has plead a plausible claim
in the amended complaint, the Court will consider the motions on the merits.
Conclusion
28 U.S.C. §§ 1915 and 1915A require the dismissal of a complaint that fails
to state a claim upon which relief may be granted but do not deprive the district court
of its discretion to grant or deny leave to amend. Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000). Leave to amend is liberally granted to pro se litigants unless
it is “absolutely clear that the deficiencies of the complaint could not be cured by
amendment.” Noll, 809 F.2d at 1448 (citing Broughton v. Cutter Labs., 622 F.2d
458, 460 (9th Cir. 1980)).
Schleining’s Complaint fails to state a claim upon which relief may be granted
and it is subject to dismissal. However, it may be possible to cure the defect by
bringing the claims under statutes that provide a private right of action. Accordingly,
Schleining will be given an opportunity to file an amended complaint to reallege his
allegations under a proper statute.
A, Amended Complaint
Any amended complaint must be retyped or rewritten in its entirety on the
court-approved form and may not incorporate any part of a previous complaint by
reference. Once Schleining files an amended complaint, it replaces the prior
complaint, which no longer serves a function in the case. Ferdik v. Bonzelet, 963
F.2d 1258, 1262 (9th Cir. 1992). If Schleining fails to use the court-approved form,
the Court may strike the amended complaint and recommend the dismissal of this
action. Schleining may not change the nature of this suit by adding new, unrelated
claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007).
B. Possible Dismissal
If Schleining fails to timely comply with the provisions of this Order, this
action may be dismissed. Ferdik, 963 F.2d at 1260-61 (court may dismiss an action
for failure to comply with any order of the court). The Court also notes that because
Schleining did not allege his claims under a proper statute, the Court was unable to
analyze whether the complaint “contain[ed] sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Fed. R. Civ. P. 8(a)(2).
If Schleining fails to allege sufficient facts that demonstrates he has a plausible claim
on its face, his amended complaint may also be subject to dismissal.
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ORDER
Based on the foregoing, IT IS HEREBY ORDERED as follows:
1. Plaintiffs Motion for Leave to Proceed in forma pauperis (Doc. 1) is
GRANTED.
2. Plaintiff's Motion for Temporary Restraining Order (Doc. 3) is DENIED
as moot; the Plaintiff may refile the motion following his filing of the
amended complaint.
3. Plaintiff's Motion for Expedited Review of Temporary Restraining Order
(Doc. 7) is DENIED as moot; the Plaintiff may refile this motion following
his filing of the amended complaint.
4. With Plaintiff's service copy of this Order, the clerk shall include a form
amended complaint.
5. Plaintiff may file an amended complaint within thirty (30) days of the entry
of this Order.
DATED this J iay of May, 2025.
Leow 2 Leben
SUSAN P. WATTERS
UNITED STATES DISTRICT JUDGE