(PC) Bell v. Nicholas et al, No. 2:2009cv02327 - Document 9 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/12/10 ORDERING that 6 Motion for Extension of time is GRANTED; 7 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of 6;350.00 for this action, to be collected and paid in accordance with this courts order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith; Clerk of the Court is directed to randomly assign this case to a District Judge. It is RECOMMENDED that this action be dismissed for plaintiff's failure to state a cognizable claim. Randomly assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)
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(PC) Bell v. Nicholas et al Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DANNY BELL, 11 12 13 Plaintiff, No. CIV S-09-2327 DAD P vs. HENRY T. NICHOLAS, III, et al., 14 ORDER AND Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 17 U.S.C. § 1985 and other provisions. He has filed an application to proceed in forma pauperis 18 under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in 19 accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1). 20 Plaintiff has submitted an in forma pauperis application that makes the showing 21 required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma 22 pauperis. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 24 28 U.S.C. § 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is 25 currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 26 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of 1 Dockets.Justia.com 1 the preceding month’s income credited to plaintiff’s prison trust account. These payments will 2 be collected and forwarded by the appropriate agency to the Clerk of the Court each time the 3 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. 4 § 1915(b)(2). 5 The court is required to screen complaints brought by prisoners seeking relief 6 against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. 7 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 8 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 9 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 10 11 U.S.C. § 1915A(b)(1) & (2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 13 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 17 Cir. 1989); Franklin, 745 F.2d at 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and 19 plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 22 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must 23 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 24 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 25 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 26 allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 2 1 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and 2 resolve all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 3 Here, plaintiffs claims that his rights under 42 U.S.C. § 1985(2) and (3)1, 18 4 U.S.C. § 2422, the Thirteenth Amendment’s proscription against involuntary servitude, the 5 Fourteenth Amendments due process and equal protection clauses, California’s constitution, and 6 California Penal Code § 182(a)(5)3 were violated by defendants. In his complaint plaintiff 7 alleges that defendants Henry Nicholas, Governor Arnold Schwarzenegger, former Governor 8 Pete Wilson, former Attorney General Bill Lockyer, and Todd Spitzer conspired or aided a 9 conspiracy to provide either financial or political support for Justice for Homicide Victims, Inc. 10 Plaintiff also contends that Justice for Homicide Victims is a “public policy enterprise” which 11 sought to defeat Proposition 66, a proposition that would have modified California’s Three- 12 Strikes law. Plaintiff asserts that with the defeat of Proposition 66 and the enactment of other 13 anti-crime proposition, California’s prisons have become increasingly overcrowded. Plaintiff 14 seeks the following relief: 15 Defendants should be held in a Ten Million dollar contempt for obstructing and denying constitutionally declared rights of freedom from involuntary servitude, freedom from Illegal liberty deprivation and denial of equal protection of the laws, in that, due to the unconstitutional conditions of confinement the Public Policy Enterprise of Justice For Homicide Victims Inc., has caused due to their interference with the remedy (Proposition 66) which would 16 17 18 19 1 20 21 22 23 24 25 26 42 U.S.C. § 1985 proscribes conspiracies to obstruct justice in federal and state court proceedings and requires that the conspirators’ actions be motivated by an animus towards a protected class. See Kush v. Rutledge, 460 U.S. 719, 724-25 (1983); Portman v. County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993). 2 18 U.S.C. § 242 provides in part: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . on account of such person being an alien, or by reason of his color, or race . . . shall be fined under this title or imprisoned not more than one year, or both . . . . 3 California Penal Code § 182(a)(5) provides that a felony is committed when two or more persons conspire “[t]o commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.” 3 1 have alleviated the conditions mandating the cause for creating the overcrowding conditions existing today. 2 3 4 (Id. at 16.) The court will recommend that plaintiff’s complaint be dismissed for failure to 5 state a cognizable claim. The statutes and constitutional provisions plaintiff relies on do not 6 provide him with a legal basis to challenge public and private individuals who support a political 7 campaign either financially, with an endorsement, or with political speech made in the course of 8 a political campaign. Plaintiff seeks to hold the named defendants responsible for the defeat of 9 Proposition 66 and the passage of other propositions; however, it was California voters who 10 determined the outcome of those ballot measures. Defendants’ alleged participation in political 11 campaign and association with a political organization does not provide plaintiff with a private 12 cause of action against them. In fact, the First Amendment affords the broadest protection to 13 political expression in order “‘to assure (the) unfettered interchange of ideas for bringing about of 14 political and social changes desired by the people.’” Buckley v. Valeo, 424 U.S. 1, 14 (1976) 15 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). In addition, “[t]he First Amendment 16 protects political association as well as political expression.” Id. at 15. As courts have 17 recognized, “‘[e]ffective advocacy of both public and private points of view, particularly 18 controversial ones, is undeniably enhanced by group association.” Id. (quoting NAACP v. 19 Alabama, 357 U.S. 449, 460 (1958)). 20 The court will not grant plaintiff leave to file an amended complaint. It appears 21 clear that the defects of plaintiff’s complaint noted above cannot be cured and that the granting of 22 leave to amend would be futile. See Reddy v. Litton Industries, Inc., 912 F.2d 291, 296 (9th Cir. 23 1990); Rutmann Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s November 3, 2009 motion for an extension of time to submit his 26 application to proceed in forma pauperis (Doc. No. 6) is granted nunc pro tunc; 4 1 2 2. Plaintiff’s November 6, 2009 application to proceed in forma pauperis (Doc. No. 7) is granted; 3 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. 4 The fee shall be collected and paid in accordance with this court’s order to the Director of the 5 California Department of Corrections and Rehabilitation filed concurrently herewith; and 6 7 4. The Clerk of the Court is directed to randomly assign this case to a District Judge. 8 9 Also, IT IS HEREBY RECOMMENDED that this action be dismissed for plaintiff failure to state a cognizable claim. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 12 one days after being served with these findings and recommendations, plaintiff may file written 13 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 15 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 16 F.2d 1153 (9th Cir. 1991). 17 DATED: April 12, 2010. 18 19 20 21 DAD:4 bell2327.fsc 22 23 24 25 26 5
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