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Bell v. Nicholas

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 12, 2010

DANNY BELL, PLAINTIFF,
v.
HENRY T. NICHOLAS, III, ET AL., DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1985 and other provisions. He has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. § 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) & (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Here, plaintiffs claims that his rights under 42 U.S.C. § 1985(2) and (3)*fn1, 18 U.S.C. § 242*fn2, the Thirteenth Amendment's proscription against involuntary servitude, the Fourteenth Amendments due process and equal protection clauses, California's constitution, and California Penal Code § 182(a)(5)*fn3 were violated by defendants. In his complaint plaintiff alleges that defendants Henry Nicholas, Governor Arnold Schwarzenegger, former Governor Pete Wilson, former Attorney General Bill Lockyer, and Todd Spitzer conspired or aided a conspiracy to provide either financial or political support for Justice for Homicide Victims, Inc. Plaintiff also contends that Justice for Homicide Victims is a "public policy enterprise" which sought to defeat Proposition 66, a proposition that would have modified California's Three-Strikes law. Plaintiff asserts that with the defeat of Proposition 66 and the enactment of other anti-crime proposition, California's prisons have become increasingly overcrowded. Plaintiff seeks the following relief:

Defendants should be held in a Ten Million dollar contempt for obstructing and denying constitutionally declared rights of freedom from involuntary servitude, freedom from Illegal liberty deprivation and denial of equal protection of the laws, in that, due to the unconstitutional conditions of confinement the Public Policy Enterprise of Justice For Homicide Victims Inc., has caused due to their interference with the remedy (Proposition 66) which would have alleviated the conditions mandating the cause for creating the overcrowding conditions existing today.

(Id. at 16.)

The court will recommend that plaintiff's complaint be dismissed for failure to state a cognizable claim. The statutes and constitutional provisions plaintiff relies on do not provide him with a legal basis to challenge public and private individuals who support a political campaign either financially, with an endorsement, or with political speech made in the course of a political campaign. Plaintiff seeks to hold the named defendants responsible for the defeat of Proposition 66 and the passage of other propositions; however, it was California voters who determined the outcome of those ballot measures. Defendants' alleged participation in political campaign and association with a political organization does not provide plaintiff with a private cause of action against them. In fact, the First Amendment affords the broadest protection to political expression in order "'to assure (the) unfettered interchange of ideas for bringing about of political and social changes desired by the people.'" Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). In addition, "[t]he First Amendment protects political association as well as political expression." Id. at 15. As courts have recognized, "'[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association." Id. (quoting NAACP v. Alabama, 357 U.S. 449, 460 (1958)).

The court will not grant plaintiff leave to file an amended complaint. It appears clear that the defects of plaintiff's complaint noted above cannot be cured and that the granting of leave to amend would be futile. See Reddy v. Litton Industries, Inc., 912 F.2d 291, 296 (9th Cir. 1990); Rutmann Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's November 3, 2009 motion for an extension of time to submit his application to proceed in forma pauperis (Doc. No. 6) is granted nunc pro tunc;

2. Plaintiff's November 6, 2009 application to proceed in forma pauperis (Doc. No. 7) is granted;

3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith; and

4. The Clerk of the Court is directed to randomly assign this case to a District Judge.

Also, IT IS HEREBY RECOMMENDED that this action be dismissed for plaintiff failure to state a cognizable 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 after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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