Reid v. Mabus, et al, No. 6:2015cv01556 - Document 7 (D. Or. 2015)

Court Description: Order and Findings & Recommendation: Order granting Application for Leave to Proceed IFP 2 . Findings & Recommendation: Complaint 1 should be dismissed. Objections to the Findings and Recommendation are due by 12/3/2015. Signed on 11/16/2015 by Magistrate Judge Thomas M. Coffin. (plb)

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Reid v. Mabus, et al Doc. 7 UNITED STATES DISTRICT COURT DISTRICT OF OREGON JESSE WAYNE REID, JR., Plaintiff, 6:15-cv-1556-TC v. FINDINGS AND RECOMMENDATION RAY MABUS, et al., Defendants, COFFIN, Magistrate, Judge. Plaintiff's Application to proceed in forma pauperis (#2) is allowed. However, for the reasons set forth below, plaintiff's complaint should be dismissed, without service of process, on the basis that it is frivolous. See 28 U.S.C. § 1915(d). BACKGROUND Plaintiff, a resident of Pittsburgh, Pennsylvania, filed a complaint pro se alleging claims against various military officers 1 - FINDINGS and RECOMMENDATION Dockets.Justia.com and federal agency officials. STANDARDS A complaint filed in forma pauperis may be dismissed before service of process if it is deemed frivolous under 28 U.S.C. 1915(d). § Neitzke v. Williams, 490 U.S. 319, 324 (1989); Jackson v. State of Ariz., 885 F.2d 639, 640 (9th Cir. 1989). A complaint is frivolous "where it lacks an arguable basis in law or in fact." Nietzke, 490 U.S. at 325; Lopez v. Dept. of Health Services, 939 F.2d 881, 882 (9th Cir. 1991); Jackson, 885 F.2d at 640. "'frivolous' embraces not only the The term inarguable legal conclusion, but also the fanciful factual allegation." Neitzke, 490 U.S. at 325 932 F.2d (footnote omitted); McKeever v. Block, 795, 798 (9th Cir. 1991); Jackson, 885 F.2d at 640. Accordingly, in reviewing a complaint for frivolity, a trial court may "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." of the Neitzke, 490 U.S. at 327. factual plaintiff. allegations must be In so doing, the assessment weighted in favor of the Denton v. Hernandez, 112 S.Ct. 1728, 1733 (1992). "Baseless" claims subject to sua sponte dismissal include those "describing fantastic or delusional scenarios." Neitzke, 490 U.S. at 328; Denton, 112 S.Ct. at 1733; McKeever, 932 F.2d at 7 98. " [A] the facts finding of factual frivolousness is appropriate when alleged rise to the level of the irrational or the 2 - FINDINGS and RECOMMENDATION wholly incredible." Denton, 112 S.Ct. at 1733. DISCUSSION In the first place, none of plaintiff's factual allegations appear to have any relation to the State of Oregon. there is an issue of this court's personal Therefore, jurisdiction over defendants However, even if plaintiff jurisdictional basis for his claims, could establish his court finds some that the factual allegations in the instant case are irrational and wholly incredible. construed, conspiracy Regardless of the allegations targeting how of liberally "voice to 300,000 the skull" indi victuals complaint is and a massive with "electronic harassment" are not credible and fail to state a claim. CONCLUSION Based DISMISSED. on the foregoing, plaintiff's complaint should be Because it is apparent that the deficiencies of the complaint cannot be cured by amendment, the dismissal should be with prejudice. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal of pursuant to Rule 4 (a) (1), Federal Rules Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. (14) days from the date The parties shall have fourteen of 3 - FINDINGS and RECOMMENDATION service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have fourteen within which to file a response to the objections. timely file objections to any factual (14) days Failure to determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. IT IS SO ORDERED. DATED this __/1p_ day of November, 2015. . Coffin Judge 4 - FINDINGS and RECOMMENDATION

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