(PS) Lorretz v. Kushner et al, No. 2:2019cv01969 - Document 7 (E.D. Cal. 2020)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 4/2/2020 RECOMMENDING that the 2 Motion to Proceed in Forma Pauperis be denied, the 1 Complaint be dismissed without prejudice, and this action be dismissed. Referred to District Judge Troy L. Nunley. Objections due within 30 days after being served with these findings and recommendations. (York, M)
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(PS) Lorretz v. Kushner et al Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIANA LEE WALLACH LORRETZ, 12 Plaintiff, 13 14 No. 2:19-cv-1969 TLN DB PS v. FINDINGS AND RECOMMENDATIONS MR. AND MRS. JARED KUSHNER, 15 Defendants. 16 Plaintiff Diana Lorretz is proceeding in this action pro se. This matter was referred to the 17 18 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 20 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about “kidnapping.” (Compl. 21 (ECF No. 1) at 5.) The court is required to screen complaints brought by parties proceeding in forma 22 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 25 below, the undersigned will recommend that plaintiff’s complaint be dismissed without leave to 26 amend. 27 //// 28 //// 1 Dockets.Justia.com 1 2 I. Plaintiff’s Application to Proceed In Forma Pauperis Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 2 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 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. 7 8 9 10 Fed. R. Civ. P. 8(a). II. Plaintiff’s Complaint 11 “[T]he in forma pauperis statute . . . ‘accords judges not only the authority to dismiss a 12 claim based on an indisputably meritless legal theory, but also the unusual power to pierce the 13 veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are 14 clearly baseless.’” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke, 490 U.S. at 15 327). “Examples of the latter class are claims describing fantastic or delusional scenarios, claims 16 with which federal district judges are all too familiar.” Neitzke, 490 U.S. at 328. 17 Here, the complaint alleges that “New Jersey Govenor Chris Christie reported [that] the 18 Kushners [the President’s daughter and son-in-law] do loathsome things to each other” and to 19 “[plaintiff’s] Jew household” including “kidnapping [plaintiff] in five nations[.]” (Compl. (ECF 20 No. 1) at 5.) The complaint also alleges that “Steve Mnuchin steals [plaintiff’s] money.” (Id. at 21 6.) 22 In this regard, not only does the complaint fail to state a claim, but the complaint’s 23 allegations are also delusional and frivolous. See Denton, 504 U.S. at 33 (“a finding of factual 24 frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly 25 incredible, whether or not there are judicially noticeable facts available to contradict them”). 26 III. Leave to Amend 27 For the reasons stated above, plaintiff’s complaint should be dismissed. The undersigned 28 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 3 1 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 2 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 3 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 4 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 5 court does not have to allow futile amendments). 6 7 Here, given the defects noted above, the undersigned finds that granting plaintiff leave to amend would be futile. 8 CONCLUSION 9 Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that: 10 11 1. Plaintiff’s September 27, 2019 application to proceed in forma pauperis (ECF No. 2) be denied; 12 13 2. Plaintiff’s September 27, 2019 complaint (ECF No. 1) be dismissed without prejudice; and 14 3. This action be dismissed. 15 These findings and recommendations will be submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 17 after being served with these findings and recommendations, plaintiff may file written objections 18 with the court. A document containing objections should be titled “Objections to Magistrate 19 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 20 the specified time may, under certain circumstances, waive the right to appeal the District Court’s 21 order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 DATED: April 2, 2020 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 23 24 25 26 DLB:6 DB/orders/orders.pro se/lorretz1969.dism.f&rs 27 28 4
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