(PC) Pryer v. Unknown, No. 2:2009cv03515 - Document 8 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/3/10 ORDERING that Plaintiff's 6 Motion to Proceed IFP is GRANTED; Clerk shall assign a district judge to this action; RECOMMENDING that this action be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 20 days.(Dillon, M)

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(PC) Pryer v. Unknown Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DAVID NELSON PRYER, II, 11 12 13 Plaintiff, No. CIV S-09-3515 GGH P vs. UNKNOWN, 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. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 18 § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. 19 § 636(b)(1). 20 21 22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. The court is required to screen complaints brought by prisoners seeking relief 23 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 25 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 26 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 1 Dockets.Justia.com 1 2 U.S.C. § 1915A(b)(1),(2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 3 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 4 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 5 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 6 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 7 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 8 Cir. 1989); Franklin, 745 F.2d at 1227. 9 A complaint, or portion thereof, should only be dismissed for failure to state a 10 claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set 11 of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & 12 Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer 13 v. Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a 14 complaint under this standard, the court must accept as true the allegations of the complaint in 15 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 16 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 17 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 18 The court finds the allegations in plaintiff’s complaint so vague and conclusory 19 that it is unable to determine whether the current action is frivolous or fails to state a claim for 20 relief. The court has determined that the complaint does not contain a short and plain statement 21 as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading 22 policy, a complaint must give fair notice and state the elements of the claim plainly and 23 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff 24 must allege with at least some degree of particularity overt acts which defendants engaged in that 25 support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of Fed. 26 R. Civ. P. 8(a)(2), the complaint must be dismissed. The court has carefully reviewed the 2 1 complaint and finds that the defects may not be cured. 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s motion to proceed in forma pauperis (no. 6) is granted. 4 2. The Clerk of the Court shall assign a district judge to this action; 5 IT IS HEREBY RECOMMENDED that this action be dismissed. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 8 days after being served with these findings and recommendations, plaintiff may file written 9 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 10 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 11 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 12 F.2d 1153 (9th Cir. 1991). 13 DATED: March 3, 2010 14 /s/ Gregory G. Hollows 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 pry3515.dis 19 20 21 22 23 24 25 26 3

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