(PC) Distin v. US Army et al, No. 2:2023cv01369 - Document 5 (E.D. Cal. 2023)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 07/24/2023 DIRECTING the Clerk to randomly assign a district judge to this action. Senior Judge William B. Shubb and Magistrate Judge Allison Claire assigned for all further proceedings. It is RECOMMENDED that the 2 Motion to Proceed IFP be denied and that the complaint be dismissed with prejudice and without leave to amend for failure to state a claim. Referred to Judge William B. Shubb. Objections due within 21 days after being served with these findings and recommendations. New Case Number: 2:23-cv-1369 WBS AC (PC). (Spichka, K.)
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(PC) Distin v. US Army et al Doc. 5 Case 2:23-cv-01369-WBS-AC Document 5 Filed 07/25/23 Page 1 of 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP CHRISTOPHER DISTIN, 12 Plaintiff, 13 14 No. 2:23-cv-1369 AC P v. ORDER AND FINDINGS AND RECOMMENDATIONS U.S. ARMY, et al., 15 Defendants. 16 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 17 18 19 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. I. Application to Proceed In Forma Pauperis Plaintiff has moved for leave to proceed in forma pauperis. ECF No. 2. “A district court 20 21 may deny leave to proceed in forma pauperis at the outset if it appears from the face of the 22 proposed complaint that the action is frivolous or without merit.” Tripati v. First Nat’l Bank & 23 Tr., 821 F.2d 1368, 1370 (9th Cir. 1987). For the reasons set forth below, the undersigned finds 24 this action to be frivolous and will recommend that plaintiff’s application to proceed in forma 25 pauperis be denied. 26 27 28 II. Statutory Screening of Prisoner Complaints 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). 1 Dockets.Justia.com Case 2:23-cv-01369-WBS-AC Document 5 Filed 07/25/23 Page 2 of 5 1 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 2 “frivolous, malicious, or 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). 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 . . . claims which are ‘based on indisputably meritless legal 7 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 8 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 9 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 10 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 11 Franklin, 745 F.2d at 1227-28 (citations omitted). 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 15 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 16 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 17 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 18 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 19 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 20 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 21 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 22 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 23 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 24 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 25 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 26 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 27 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 28 content that allows the court to draw the reasonable inference that the defendant is liable for the 2 Case 2:23-cv-01369-WBS-AC Document 5 Filed 07/25/23 Page 3 of 5 1 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 2 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 3 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 4 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 5 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 6 III. 7 Complaint The complaint alleges that plaintiff is in a state of emergency because he is being tortured 8 by the United States Army which has been attempting to murder and kidnap him. ECF No. 1 at 3. 9 Plaintiff asserts that since 2018, the United States Army has been using a top-secret military 10 weapon that is run by a computer at the army base station to torture him. Id. The California 11 Department of Corrections and Rehabilitation (CDCR) has refused to investigate or do anything 12 about plaintiff’s living conditions or injuries. Id. at 5. 13 14 IV. Failure to State a Claim “[T]he United States may not be sued without its consent and that the existence of consent 15 is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Plaintiff 16 has the burden of showing a waiver of immunity, Holloman v. Watt, 708 F.2d 1399, 1401 (9th 17 Cir. 1983) (citation omitted), and has not done so here. The claims against the CDCR are 18 similarly barred by sovereign immunity because the prison is an arm of the state. See Howlett v. 19 Rose, 496 U.S. 356, 365 (1990) (the state and arms of the state “are not subject to suit under 20 § 1983” (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989))). 21 Moreover, even if plaintiff could name proper defendants (under the Federal Tort Claims 22 Act, 42 U.S.C. § 1983, or other statute creating a private cause of action), the allegations in the 23 complaint are fantastical. “[A] court may dismiss a claim as factually frivolous only if the facts 24 alleged are ‘clearly baseless,’ a category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ 25 and ‘delusional.’ As those words suggest, a finding of factual frivolousness is appropriate when 26 the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 27 504 U.S. 25, 32-33 (1992) (internal citations omitted). The facts alleged by plaintiff are patently 28 incredible, and the complaint must therefore be dismissed. 3 Case 2:23-cv-01369-WBS-AC Document 5 Filed 07/25/23 Page 4 of 5 1 The court further notes that, except for a portion of the time period at issue and the prison 2 at which plaintiff was incarcerated, the allegations in the instant complaint are nearly identical to 3 those in Distin v. U.S. Army (Distin I), No. 1:20-cv-0860 AWI SAB (E.D. Cal.), which was 4 dismissed with prejudice at the screening stage for failure to state a claim. Distin I, ECF Nos. 1 5 (complaint), 17 (order dismissing complaint with prejudice). To the extent plaintiff’s claims 6 overlap those in Distin I, those claims were dismissed with prejudice and cannot be pursued in 7 this case. 8 V. 9 No Leave to Amend Leave to amend should be granted if it appears possible that the defects in the complaint 10 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 11 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 12 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 13 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 14 The undersigned finds that, as set forth above, the complaint fails to state a claim upon 15 which relief may be granted and that given the nature of the claims, amendment would be futile. 16 The complaint should therefore be dismissed with prejudice and without leave to amend. 17 18 VI. Plain Language Summary of this Order for a Pro Se Litigant It is being recommended that your complaint be dismissed with prejudice and without 19 leave to amend because it fails to state a claim for relief. Also, you cannot reassert claims that 20 were previously dismissed with prejudice in another case. 21 22 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly assign a United States District Judge to this action. 23 IT IS FURTHER RECOMMENDED that: 24 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) be DENIED. 25 2. The complaint be dismissed with prejudice and without leave to amend for failure to 26 27 28 state a claim. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 4 Case 2:23-cv-01369-WBS-AC Document 5 Filed 07/25/23 Page 5 of 5 1 after being served with these findings and recommendations, plaintiff may file written objections 2 with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 3 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 4 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 5 (9th Cir. 1991). 6 DATED: July 24, 2023 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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