(PC) Smith v. Rowling, No. 2:2010cv00679 - Document 14 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 07/20/10 ORDERING the findings and recommendations filed on 06/15/10 are vacated. Also, RECOMMENDING that plaintiff's 06/17/10 motion to proceed in forma pauper is be denied. Plaintiff's 06/24/10 motion to proceed in forma pauperis be granted. Plaintiff's 04/09/10 amended complaint be dismissed without leave to amend. Amended Prisoner Civil Rights Complaint 6 , MOTION to PROCEED IN FORMA PAUPERIS 13 , MOTION to PROCEED IN FORMA PAUPERIS 12 referred to Judge John A. Mendez. Objections due within 20 days.(Plummer, M)

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(PC) Smith v. Rowling Doc. 14 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 ELIJAH M. SMITH, JR., Plaintiff, 9 10 vs. 11 No. 2:10-cv-0679 JAM JFM (PC) J.K. ROWLING, 12 13 14 Defendant. ORDER AND / FINDINGS & RECOMMENDATIONS On March 22, 2010, plaintiff, a state prisoner proceeding pro se, filed an amended 15 civil rights complaint pursuant to 42 U.S.C. § 1983 and an incomplete request for leave to 16 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. On March 30, 2010, plaintiff’s 17 request to proceed IFP was denied, plaintiff was granted thirty days from the date of the 18 complaint to file a second IFP application, plaintiff’s complaint was dismissed for failure to state 19 a claim; and plaintiff was granted thirty days to file an amended complaint. 20 On April 9, 2010, plaintiff filed an amended complaint and a second IFP motion 21 not on the form utilized by this district. On April 28, 2010, plaintiff’s IFP application was 22 denied. Plaintiff was again granted leave to file a third motion for IFP. Plaintiff failed to file a 23 timely motion. On June 15, 2010, this court issues findings and recommendations 24 recommending that plaintiff’s amended complaint be dismissed for failure to pay the filing fee. 25 26 On June 17, 2010 and on June 24, 2010, plaintiff filed a third and fourth motion to proceed IFP, respectively. The third motion is again on a form not utilized by this district. The 1 Dockets.Justia.com 1 fourth motion is proper and complete. Because plaintiff has submitted a declaration that makes 2 the showing required by 28 U.S.C. § 1915(a), the request to proceed in forma pauperis will be 3 granted. Additionally, the court is required to screen complaints brought by prisoners 4 5 seeking relief against a governmental entity or officer or employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has 7 raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief 8 may be granted, or that seek monetary relief from a defendant who is immune from such relief. 9 28 U.S.C. § 1915A(b)(1),(2). A claim is legally frivolous when it lacks an arguable basis either in law or in 10 11 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227- 12 28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. 14 Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however 15 inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 16 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 17 A complaint, or portion thereof, should only be dismissed for failure to state a 18 claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set 19 of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & 20 Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer 21 v. Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a 22 complaint under this standard, the court must accept as true the allegations of the complaint in 23 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 24 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 25 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 26 ///// 2 1 Examination of the amended complaint reveals that it is substantially similar to 2 the March 22, 2010 complaint that was dismissed for failure to state a claim. That is, plaintiff 3 again asserts that he is the rightful author of the “Harry Potter” book series instead of defendant. 4 Because granting leave to amend would be futile, the complaint should be dismissed without 5 leave to amend pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 6 7 Accordingly, IT IS HEREBY ORDERED that the findings and recommendations filed on June 15, 2010 are vacated; and 8 IT IS HEREBY RECOMMENDED that: 9 1. Plaintiff’s June 17, 2010 motion to proceed in forma pauperis be denied; 10 2. Plaintiff’s June 24, 2010 motion to proceed in forma pauperis be granted; and 11 3. Plaintiff’s April 9, 2010 amended complaint be dismissed without leave to 12 13 amend. These findings and recommendations will be submitted to the United States 14 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 15 twenty days after being served with these findings and recommendations, plaintiff may file 16 written objections with the court. The document should be captioned “Objections to Findings 17 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 18 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 19 (9th Cir. 1991). 20 DATED: July 20, 2010. 21 22 23 24 /014;smit0679.dismiss 25 26 3

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