(PC) Trotter v. Schwarzenegger, No. 1:2010cv01971 - Document 37 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 36 Plaintiff's Fourth Amended Complaint be DISMISSED, signed by Magistrate Judge Jennifer L. Thurston on 12/13/2012. Referred to Judge O'Neill. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES TROTTER, 12 Case No. 1:10-cv-01971 LJO JLT (PC) Plaintiff, 13 FINDINGS AND RECOMMENDATION ORDER DISMISSING FOURTH AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM vs. 14 ARNOLD SCHWARZENEGGER, et al., 15 Defendants. (Doc. 36) 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 I. 20 Screening Requirement When an individual seeks to proceed in forma pauperis, the Court is required to review 21 the complaint and identify “cognizable claims.” See 28 U.S.C § 1915(a)-(b). The Court must 22 dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or fails to state a 23 claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is 24 immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A claim is frivolous 25 “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not 26 there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 27 25, 32-33 (1992). 28 1 1 To state a claim on which relief may be granted, plaintiff must set forth “sufficient factual 2 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 3 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 4 A district court must liberally construe a pleading filed by a self-represented litigant to determine 5 if it states a claim and, before dismissal, outline the deficiencies in the complaint and give the 6 plaintiff an opportunity to amend unless the deficiencies cannot be cured. See Lopez v. Smith, 7 203 F.3d 1122, 1130-31 (9th Cir. 2000). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). Accordingly, the court may dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory. Neitzke, 490 U.S. at 327. 12 In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that 13 he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) 14 that the violation was proximately caused by a person acting under color of state law. See 15 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is 16 satisfied only if a plaintiff demonstrates that a defendant did an affirmative act, participated in 17 another's affirmative act, or omitted to perform an act which he was legally required to do that 18 caused the deprivation complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) 19 (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). 20 To plead under § 1983, Plaintiff must comply with Federal Rule of Civil Procedure 21 8(a)(2), which requires only “‘a short and plain statement of the claim showing that the pleader is 22 entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the 23 grounds upon which it rests[.]’” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 24 41, 47 (1957)). Nevertheless, Plaintiff’s obligation to provide the grounds of entitlement to relief 25 under Rule 8(a)(2) requires more than “naked assertions,” “labels and conclusions,” or “formulaic 26 recitation[s] of the elements of a cause of action.” Twombly, 550 U.S. at 555-57. The complaint 27 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 28 on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting 2 1 Twombly, 550 U.S. at 570) (emphasis added). 2 II. The fourth amended complaint 3 Plaintiff initiated this action in the Sacramento Division of this Court on August 4, 2010. 4 (Doc. 1) He filed his “amended complaint” on October 12, 2012 (Doc. 6) and his “Second 5 Amended Complaint” on October 25, 2010. (Doc. 11) On November 8, 2010, Plaintiff lodged 6 his Third Amended Complaint on November 8, 2010. 7 “supplemental” complaints (Doc. 15) and a “supplemental pleading.” (Doc. 15.) Because the 8 supplemental complaint and the supplemental pleadings did not appear to be complaints, the 9 Court screened the Third Amended Complaint (Doc. 13). (Doc. 35) (Doc. 13) After this, he has filed 10 In that screening order, the Court advised Plaintiff that due to the dearth of factual 11 allegations, it had no way of determining what claims he was asserting and found that the 12 “complaint is virtually unintelligible. It appears to be a recitation of various quotes from legal 13 authorities but without any showing of how these authorities apply to his claims.” (Doc. 35 at 3) 14 Moreover, the Court advised Plaintiff that it could not make sense of the 65 pages of attachments 15 to the complaint because he failed to explain their pertinence to it. Id. As a result, on June 6, 16 2012, the Court ordered the complaint dismissed but permitted Plaintiff to file a fourth amended 17 complaint. Id. 18 Now before the Court is another document entitled, “Third Amended Complaint With 19 Leave to Amend.” (Doc. 36) Thus, once again, the Court screens this complaint but, refers to it 20 as the fourth amended complaint, given the third amended complaint was dismissed. (Doc. 35) 21 III. Analysis 22 In his most current amended complaint, Plaintiff continues in his “stream-of- 23 consciousness” manner of writing. In doing so, he seems to assert various wrongful actions by 24 the prison officials including stealing property, holding inmates beyond their release date, failing 25 to provide adequate electrical outlets and to provide for the inmates to watch the news on 26 television. (Doc. 36 at 2) However, these assertions are not made in complete, comprehensible 27 sentences and, once again, the Court cannot discern what, exactly, Plaintiff claims happened. The 28 complaint is unintelligible. It is a series of “thoughts” without any linear connection and, though 3 1 he refrains from quoting legal authorities this time, he mentions legal authorities without showing 2 how they apply. 3 Once again, because the complaint fails to state any causes of action or set forth the facts 4 upon which Plaintiff seeks to impose liability, the Court recommends the complaint be 5 DISMISSED. 6 IV. Conclusion In its earlier order, it advised Plaintiff that it would grant him “one final opportunity” to 7 8 address the deficiencies set forth in its order; he has not done so. As a result, the Court may only 9 conclude that he lacks factual support for a cognizable claim. Thus, the Court finds that granting 10 Plaintiff further leave to amend would be futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th 11 Cir. 2000) (en banc) (requiring leave to be granted to the extent deficiencies can be cured by 12 amendment). 13 V. 14 15 Findings and Recommendations For the reasons set forth above, the Court HEREBY RECOMMENDS Plaintiff's Fourth Amended Complaint be DISMISSED. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 18 Local Rules of Practice for the United States District Court, Eastern District of California. Within 19 21 days after being served with these findings and recommendations, Plaintiff may file written 20 objections with the Court. Such a document should be captioned “Objections to Magistrate 21 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 22 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 23 F.2d 1153 (9th Cir. 1991). 24 25 26 IT IS SO ORDERED. Dated: December 13, 2012 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 27 28 DEAC_Signature-END: 9j7khijed 4

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