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William Douglas Mello v. J. Nepomuceno

January 30, 2012

WILLIAM DOUGLAS MELLO,
PLAINTIFF,
v.
J. NEPOMUCENO, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 24)

I. Factual and Procedural Background

William Douglas Mello ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff asserts that he is "sovereign" and that he brings this action as "Kincaid®, d/b/a: William Douglass Mello®." Doc. 19 at 1, 21; Doc. 24 at 2-3, 7. Plaintiff also addresses himself and signs by the name of Douglass W. Hysell. Doc. 24 at 2-3. On November 9, 2009, Plaintiff filed his original complaint. Doc. 1. On March 29, 2011, Plaintiff filed the first amended complaint. Doc. 19. On December 21, 2011, the Court screened the complaint and dismissed with leave to amend. Doc. 21. On January 12, 2012, Plaintiff filed the second amended complaint which is currently before the Court. Doc. 24 at 4.

II. Screening

A. Screening Standard

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 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. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"'Under § 1915A, when 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.'" Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden Hayes, 213 F.3d 443, 447 (9th Cir.2000). "'Additionally, in general, courts must construe pro se pleadings liberally.'" Id. A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

B. Plaintiff's Complaint

Plaintiff is incarcerated at Pleasant Valley State Prison in Coalinga California, and is suing under section 1983 against defendants who are employed at High Desert State Prison ("HDSP") in Susanville California and Pleasant Valley State Prison ("PVSP") in Coalinga California. Doc. 24. In his complaint, Plaintiff names the following defendants: 1) Dorothy Swingle (CMO at HDSP); 2) D. Medina (Certified Physician's Assistant); 3) Barry I. Green (Certified Physician's Assistant); 4) F. Igbinosa (CMO at Pleasant Valley State Prison); 5) R. Wilson (Certified Physician's Assistant at PVSP). Doc. 24 at 4, 6-7. As relief Plaintiff seeks for the Court to enter a judgment "due to the pleadings and admissions, confessions and agreed stipulations as evidenced in the affidavit(s). As a matter of law there can only be one possible outcome to this secured and perfected claim as evidenced by attached UCC-1-Financing Statement (See attached "I") a perfected debt security UCC-Article 9. (Now a 'accounts receivable' $50,000,000.00 (Fifty Million Dollars)." Doc. 24 at 7.

Plaintiff states his cause of action is: 18 U.S.C. § 1961 - 68. R.I.C.O Act -- Dishonor, fraud, breach of contract, medical malpractice, unauthorized use of copyright trade name, intentional deliberate medical indifference (8th amend. violation) due process and equal protection laws violation (14th Amend. violation). Etc. et. al.

Doc. 24 at 4. Plaintiff continues that his claim:

. . . arises out of private injuries, moral wrongs constituting misapplication of statute, violation of due process of law; violation of state and federal statute . . . fraud and dishonor and otherwise as is enumerated below and as agreed, stipulated and confess by "all" the above named defendant(s) . . . thereby admitting and causing injury to petitioner/secured party creditor's private rights, secured rights, property, peace of mind and otherwise causing gross injury to the petitioner/secured party-creditor.

Doc 24 at 8. With the exception of a few defendants and monetary numbers being blacked out, Plaintiff resubmits an identical copy of the deficient complaint. Compare Doc. 19 at 5-21 with Doc. 24 at 8-24. Once again Plaintiff describes that he has a chronic pain condition from a torn rotary cuff at the left shoulder and lower neck and back pain. Doc. 24 at 11. Plaintiff describes that he wears orthopedic boots, knee brace, back brace, uses a cane, assigned to a lower bunk and has a seizure disorder. Doc 24 at 11-12. Plaintiff alleges that since his arrival to PVSP, he has had ongoing problems with the medical department and generally alleges that its staff refuses "to do anything for [treatment]." Doc. 24 at 12. Plaintiff alleges that on January 7, 2009, a meeting was scheduled to "finalize and complete the 'contract agreement." Doc. 24 at 12. However the medical department and its representatives "dishonored the document." Doc. 24 at 12. On January 24, 2009, Plaintiff filed an 'actual and constructive notice of default and opportunity to cure and contest acceptance." Doc. 24 at 12. On February 19, 2009 and on March 9, 2009, Plaintiff had a 'meeting of the minds' with J. Nepomuceno who was acting on behalf of Defendant Swingle. Doc. 24 at 12. On March 21, 2009, Plaintiff filed an 'affidavit in support of notice of default and failure to contest acceptance.' Doc. 24 at 12. However, "Defendants elected to fall silent on 'all' of the issues/cause(s)." Doc. 24 at 12.

Plaintiff continues on to describe his attempt to secure money from Defendants in his capacity as a secured party creditor and alleges that Defendants have breached their contractual duty and are in default. Doc. 24 at 13-17. Plaintiff then states on February 28, 2011, that he received a letter from the prison health care receivership which made false statements that Plaintiff has refused several medical appointments, is receiving attention from specialists, that Plaintiff is on adequate pain medications, that his medical needs are closely monitored, that he has ...


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