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Sandoval v. Bennette

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 22, 2009

GRACE L. SANDOVAL, PLAINTIFF,
v.
JENNIFER BENNETTE, DEFENDANT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) DENYING REQUEST FOR APPOINTMENT OF COUNSEL; AND (3) DISMISSING COMPLAINT

Plaintiff Grace L. Sandoval, proceeding pro se, has submitted a complaint pursuant to 18 U.S.C. § 1962. With the complaint Plaintiff filed a Motion to Proceed in Forma Pauperis and a Request for Appointment of Counsel.

All parties instituting any civil action, suit or proceeding in a United States District Court must pay a filing fee. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Plaintiff's declaration shows she has insufficient income and assets to pay the filing fee. Accordingly, Plaintiff's motion to proceed in forma pauperis is granted.

The court is obligated to review a complaint filed in forma pauperis and must dismiss it if it determines that the action is frivolous or malicious, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

A complaint will be considered frivolous, and therefore subject to dismissal under § 1915(e)(2)(B), "where it lacks an arguable basis either in law or in fact." Nietzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). A federal court cannot properly sua sponte dismiss an action commenced in forma pauperis if the facts alleged in the complaint are merely "unlikely." Denton, 504 U.S. at 33. However, a complaint may be properly dismissed sua sponte if the allegations are found to be "fanciful," "fantastic," or "delusional," or if they "rise to the level of the irrational or the wholly incredible." Id. at 32-33. In addition, cases which "merely repeat[] pending or previously alleged claims" may be dismissed as frivolous. Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). If a case is classified as frivolous, "there is, by definition, no merit to the underlying action and so no reason to grant leave to amend." Lopez v. Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (en banc).

Plaintiff claims her action arises under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(a), (b), (c) and/or (d). (See docket no. 1, Civil Cover Sheet.) The complaint is insufficient to state a claim. In the complaint, devoid of any headings or paragraphs, Plaintiff offers a stream-of-consciousness account of fantastic and fanciful criminal activity. These allegations are similar to the allegations in the previously-dismissed cases, Grace L. Sandoval v. Rogelio Pina, case no. 08cv1297-L(LSP), Grace L. Sandoval v. Leonard Fink, case no.08cv1869-L(NLS), Grace L. Sandoval v. Interim Health Care, case no. 09cv1507-L(POR), and Grace L. Sandoval v. Mercury Insurance, case no. 09cv2217-L(JMA).

Plaintiff's allegations are fanciful and fantastic rather than merely unlikely. An example of Plaintiff's "fanciful" allegations is that Jennifer Bennette is a security guard employed at Saint Vincent de Paul....... Jennifer Bennette forced sharps, needles etc. with harmful substance in m[y] human esophagus to cause injury and death. Jennifer Bennette also said to me..., "Welcome to the ball" and forced sharp, needle etc. with harmful substance in m[y] neck, near esophagus, etc. to start a ball or to swell as Jennifer Bennette mother, an illegal from Mexicali, Mexico named Mary Reyes..., also has from prostitution, dancing nude illegally, forcing extassy [sic] in the human mouth of males, Americans, criminals, etc in Brawley, California. Mary Reyes has carried many children born premature with the drug Provera illegally in Brawley, California as planned as planned with [many individuals] involved in polygamy, welfare fraud, etc. with Patrick J. Clark and gay mate O.J. Simpson, etc.

Although in some cases it may be difficult to judge whether a plaintiff's factual allegations are truly "fanciful," "fantastic," or "delusional" as opposed to merely "unlikely," this is not such a case. See Denton, 504 U.S. at 33. These allegations "rise[] to the level of irrational or the wholly incredible." Id. Accordingly, the complaint is dismissed as frivolous. See Lopez, 203 F.3d at 1127 n.8.

Based on the foregoing, Plaintiff's request to proceed in forma pauperis is GRANTED. The complaint is DISMISSED WITHOUT LEAVE TO AMEND. Plaintiff's motion for appointment of counsel is DENIED as moot.

IT IS SO ORDERED.

20091022

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