(PC) Pollard v. FBI et al, No. 2:2020cv00112 - Document 12 (E.D. Cal. 2020)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/8/2020 GRANTING 5 and 10 Motions to Proceed IFP and RECOMMENDING 1 Complaint be dismissed as frivolous and 11 Motion to Amend be denied. Referred to J udge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the CDCR filed concurrently herewith. (Henshaw, R)
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(PC) Pollard v. FBI et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH POLLARD, 12 13 14 15 No. 2:20-cv-0112-KJM-EFB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS FBI, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 18 § 1983, seeks leave to proceed in forma pauperis (“IFP”). ECF Nos. 5 & 10. He also moves to 19 amend his complaint. ECF No. 11. For the reasons stated hereafter, the court grants plaintiff’s 20 IFP application and recommends that his complaint be dismissed without leave to amend. Application to Proceed in Forma Pauperis 21 22 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 23 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 24 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 25 § 1915(b)(1) and (2). 26 27 28 Screening Requirements The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 Dockets.Justia.com 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 4 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 5 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 6 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 7 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 8 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 9 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 10 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 11 has an arguable legal and factual basis. Id. 12 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 13 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 14 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 15 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 16 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 17 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 18 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 19 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 20 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 21 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d 22 ed. 2004)). 23 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 24 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 25 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 26 that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 28 under this standard, the court must accept as true the allegations of the complaint in question, 2 1 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 2 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 3 McKeithen, 395 U.S. 411, 421 (1969). 4 Screening Order 5 Plaintiff’s complaint concerns his fears surrounding what he believes to be a “neurological 6 society that can send electromagnetic shock to [his] brain . . . and shut down [his] organs.” ECF 7 No. 1 at 1. In a “supplement” to his complaint, he adds allegations about an “eye lens implant” 8 used by the police for wire tap operations. ECF No. 3 at 1; see also ECF No. 6. In his motion to 9 amend, he alleges he is a victim of “satellite terrorism” and “holographic drone laser surveillance 10 that look[s] like a fake sun . . . .” ECF No. 11. 11 The Supreme Court has held that a claim is frivolous “when the facts alleged arise to the 12 level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts 13 available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also Neitzke v. 14 Williams, 490 U.S. 319, 325 (1989) (holding that “§ 1915(d)’s term ‘frivolous,’ when applied to a 15 complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual 16 allegation.”). The court concludes that plaintiff’s allegations irrational and wholly incredible and 17 are therefore, frivolous. As a result, the complaint should be dismissed and the motion to amend 18 denied. See Lopez v. Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (“When a case may be 19 classified as frivolous or malicious, there is, by definition, no merit to the underlying action and 20 so no reason to grant leave to amend.”). 21 Conclusion 22 Accordingly, it is ORDERED that: 23 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 5 & 10) is granted; and 24 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 25 accordance with the notice to the California Department of Corrections and Rehabilitation filed 26 concurrently herewith. 27 ///// 28 ///// 3 1 2 Further, it is RECOMMENDED that plaintiff’s complaint (ECF No. 1) be dismissed as frivolous and the motion to amend (ECF No. 11) be denied. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, plaintiff may file written objections 6 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendations.” Failure to file objections within the specified time may waive the right 8 to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 9 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 DATED: April 8, 2020. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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