-KJM (PC) Dunigan v. USA, et al, No. 2:2010cv02992 - Document 9 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 12/9/2010 RECOMMENDING that this action be DISMISSED as frivolous. Referred to Judge John A. Mendez; Objections due w/in 21 days. (Yin, K)
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-KJM (PC) Dunigan v. USA, 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 KEVIN DUNIGAN, Plaintiff, 11 12 vs. 13 UNITED STATES OF AMERICA, et al., 14 No. CIV S-10-2992 JAM KJM P Defendants. / 15 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant 16 17 FINDINGS AND RECOMMENDATIONS to 42 U.S.C. § 1983, together with a request to proceed in forma pauperis. 18 A court may deny leave to proceed in forma pauperis if it appears from 19 the face of the proposed complaint that the action is frivolous. Minetti v. Port of Seattle, 152 20 F.3d 1113 (9th Cir. 1998). In determining whether an action is frivolous, the court may “pierce 21 the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions 22 are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Such allegations include 23 those “describing fantastic or delusional scenarios, claims with which federal district judges are 24 all too familiar.” Neitzke, 490 U.S. at 328; see also Denton v. Hernandez, 504 U.S. 25, 33 25 (1992) (finding of frivolousness appropriate when allegations are irrational or wholly 26 incredible). 1 Dockets.Justia.com 1 Plaintiff alleges that several businesses and President Obama are engaging in 2 “homosexual harassment” through their advertisements and a subliminal messaging system. 3 These claims are frivolous. 4 Attached to the complaint in this matter is an amended complaint in Civ. No. 10- 5 2294 GEB KJM P. However the court has dismissed a first amended complaint in that case and 6 given plaintiff strict guidelines to follow for his second amended complaint. The document filed 7 in this case, therefore, will be disregarded. 8 IT IS HEREBY RECOMMENDED that this action be dismissed as frivolous. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 11 one days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within fourteen days after service of the objections. The parties are 15 advised that failure to file objections within the specified time may waive the right to appeal the 16 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: December 9, 2010. 18 19 20 21 22 23 24 25 2 26 duni2992.friv 2