(PS) McDaniel vs. The United States, et al., No. 2:2015cv01114 - Document 3 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 9/25/2015 RECOMMENDING that Plaintiff's 2 application to proceed in forma pauperis be denied. Plaintiff's 1 complaint be dismissed without leave to amend. This action be dismissed. Motion referred to Judge Morrison C. England, Jr.. Objections to F&R due within 14 days. (Zignago, K.)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TANYA GRACE McDANIEL, 12 13 No. 2:15-cv-1114 MCE DAD PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS 14 THE UNITED STATES, et al., 15 Defendants. 16 17 18 19 Plaintiff Tanya McDaniel is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C. § 20 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis 21 status does not complete the inquiry required by the statute. “‘A district court may deny leave to 22 proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that 23 the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th 24 Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See 25 also Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court to 26 examine any application for leave to proceed in forma pauperis to determine whether the 27 proposed proceeding has merit and if it appears that the proceeding is without merit, the court is 28 bound to deny a motion seeking leave to proceed in forma pauperis.”). 1 1 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 2 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 3 state a claim on which relief may be granted, or seeks monetary relief against an immune 4 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 5 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 6 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 7 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 8 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 9 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 10 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 11 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 12 true the material allegations in the complaint and construes the allegations in the light most 13 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 14 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 15 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 16 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 17 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 18 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 19 20 21 22 23 24 The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. FED. R. CIV. P. 8(a). Here, plaintiff’s complaint is deficient in at least two respects. First, the complaint fails to 25 contain a short and plain statement of a claim showing that plaintiff is entitled to relief. In this 26 regard, in the complaint’s “FACTS,” section plaintiff alleges as follows. “On or before 27 November 22, 2014,” defendant “LC Channel,” was “[h]osting terrorist conversations . . . . 28 [d]eclaring a Scandalous game of sorts that is not a game; is in fact terrorism.” (Compl. (Dkt. No. 2 1 1) at 3.) Plaintiff has “been extremely emotionally and mentally; socially; and otherwise abused 2 from such Scandal.” (Id.) “Plaintiff has recorded evidence of such terrorist verbage (sic); 3 declaring holy wars and trying so called ‘game.’” (Id.) Defendant also made “references to 4 spying on citizens and violating their privacy rights,” as well as “Nazi’s and Isis.” (Id.) Based on 5 these allegations, plaintiff seeks $1,500,000,000,000 in “damages” and $3,300,000,000,000,000 6 in punitive damages. (Id. at 6.) 7 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 8 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 9 state the elements of each claim plainly and succinctly. FED. R. CIV. P. 8(a)(2); Jones v. 10 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 11 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 12 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 13 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 14 557. A plaintiff must allege with at least some degree of particularity overt acts which the 15 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 16 Second, the complaint purports to assert causes of action for the intentional infliction of 17 emotional distress, harassment, negligence and treason, all pursuant to 42 U.S.C. ' 1983. 18 However, to state a cognizable claim under § 1983, “a plaintiff must allege the violation of a right 19 secured by the Constitution and laws of the United States . . . .” West v. Atkins, 487 U.S. 42, 48 20 (1988). “To the extent that the violation of a state law amounts to the deprivation of a state- 21 created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 22 offers no redress.” Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting 23 Lovell v. Poway Unified School Dist., 90 F.3d 367, 370 (9th Cir. 1996)). Moreover, the 24 undersigned notes that “no private right of action exists for the crime of treason . . . .” Rodriguez 25 v. Doe, No. 3:12-cv-0663-JAG, 2013 WL 1561012, at *5 (E.D. Va. Apr. 12, 2013). For all of the reasons set forth above, plaintiff’s complaint should therefore be dismissed. 26 27 ///// 28 ///// 3 1 LEAVE TO AMEND 2 The undersigned has carefully considered whether plaintiff may amend her pleading to 3 state a meritorious claim over which the court would have subject matter jurisdiction. “Valid 4 reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.” 5 California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). 6 See also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th 7 Cir. 1983) (holding that while leave to amend shall be freely given, the court does not have to 8 allow futile amendments). In light of the deficiencies noted above, and the nature of plaintiff’s 9 allegations, the undersigned finds that it would be futile to grant plaintiff leave to amend in this 10 11 case. Accordingly, IT IS HEREBY RECOMMENDED that: 1. Plaintiff’s May 22, 2015 application to proceed in forma pauperis (Dkt. No. 2) 12 13 be denied; 2. Plaintiff’s May 22, 2015 complaint (Dkt. No. 1) be dismissed without leave to 14 15 16 17 amend; and 3. This action be dismissed. These findings and recommendations will be submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 19 days after being served with these findings and recommendations, plaintiff may file written 20 objections with the court. A document containing objections should be titled “Objections to 21 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 22 objections within the specified time may, under certain circumstances, waive the right to appeal 23 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: September 25, 2015 25 26 27 DAD:6 Ddad1\orders.pro se\mcdaniel1114.ifp.den.f&rs.docx 28 4
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