(PS) Whitsitt v. Harris et al, No. 2:2010cv01620 - Document 7 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 9/27/2010 RECOMMENDING that this action be dismissed; Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days after being served with these F & R's. (Reader, L)

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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 WILLIAM WHITSITT, 11 Plaintiff, 12 13 vs. PAM HARRIS, et al., 14 Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 17 No. CIV S-10-1620 GEB KJM PS Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has filed an amended complaint. 18 The federal in forma pauperis statute authorizes federal courts to dismiss a case if 19 the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be 20 granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 21 § 1915(e)(2). 22 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 23 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 24 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 25 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 26 490 U.S. at 327. 1 1 In order to avoid dismissal for failure to state a claim a complaint must contain 2 more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements 3 of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other 4 words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a 6 claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. 7 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 8 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 9 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be 10 granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 11 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. 12 Rhodes, 416 U.S. 232, 236 (1974). 13 In this action, plaintiff alleges that his civil rights have been violated in 14 connection with his claim for unemployment benefits. Plaintiff’s allegations fail to state a claim 15 under 42 U.S.C. § 1983. Plaintiff makes no assertion that his claim for unemployment benefits 16 was denied on an impermissible basis. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 17 86-87 (1990) (even though a person has no right to valuable governmental benefit and 18 government may deny the benefit for any number of reasons, benefit may not be denied where it 19 infringes on constitutionally protected interests such as free speech); see also Sherbert v. Verner, 20 374 U.S. 398 (1963) (unemployment benefits could not be denied based on plaintiff’s religious 21 practices). Although plaintiff asserts a claim for violation of due process, it is apparent from 22 plaintiff’s allegations that he has been afforded full due process in connection with his claim for 23 unemployment benefits, including reviews by an administrative judge and notices from the 24 Employment Development Department. Am. Compl. at 3:20-28. Plaintiff’s disagreement with 25 the administrative determination does not a due process claim make. In addition, the California 26 system of administering unemployment claims has been certified as reasonably calculated to 2 1 insure full payment of unemployment compensation when due. See Carmona v.Sheffield, 475 2 F.2d 738, 739 (9th Cir. 1973). Despite being afforded an opportunity to cure the deficiencies in 3 his complaint, plaintiff has failed to do so. It appears that further amendment would be futile. 4 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 7 days after being served with these findings and recommendations, plaintiff may file written 8 objections with the court. The document should be captioned “Objections to Magistrate Judge's 9 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 10 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 11 F.2d 1153 (9th Cir. 1991). 12 DATED: September 27, 2010. 13 14 15 16 17 18 19 20 21 22 23 24 25 006 26 whitsitt-harris.57 3

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