The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding in this action, without counsel and in forma pauperis, pursuant to 28 U.S.C. § 1915.*fn1 (Order, Dkt. No. 11.) On November 9, 2012, the undersigned screened plaintiff's pleading pursuant to 28 U.S.C. § 1915(e)(2) and dismissed the pleading with leave to amend. (Order, Dkt. No. 11 (dismissing claims arising from state court convictions and sentences based upon, among other authorities, Heck v. Humphrey, 512 U.S. 477, 489-90 & n.10 (1994)).) On December 10, 2012, plaintiff filed a document styled as a "Notice of Action" (hereinafter the "First Amended Complaint"). (First Am. Compl., Dkt. No. 12.) For the reasons stated below, the undersigned recommends that this case be dismissed with prejudice.
The determination that plaintiff may proceed in forma pauperis does not complete
the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.
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.
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 Corp. v. Twombly, 550 U.S. 544 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.
1. Allegations In Plaintiff's First Amended Complaint
Plaintiff's claims are alleged as against several defendants: the State of California, the County of Sacramento District Attorney Office, the Sacramento Superior Court, the Sacramento Department of Child Support, the Sacramento Sheriff Department, and the Sacramento Police Department.*fn2 (First Am. Compl. at 1.)
As to form, plaintiff's amended pleading is written in all capital letters, making it difficult to read. (See generally, First Am. Compl.) As to content, the pleading is verbose and convoluted, making it even more difficult to read. In any event, the allegations in the First Amended Complaint are substantially similar to those in plaintiff's prior pleading. (Compare Compl., Dkt. No. 1, with First Am. Compl.)
Plaintiff alleges that a Sacramento Superior Court judge modified a restraining order against plaintiff that was issued by another Sacramento Superior Court judge. (First Am. Compl. at 4.) Plaintiff alleges that this somehow violated his due process rights and reveals a conspiracy against him. (Id. at 5.) Plaintiff alleges that he was arrested for violating the modified restraining order, sentenced, confined, and then placed on probation. (Id. at 5-6.) Plaintiff alleges that the probation is impermissible given that he has served the maximum term of confinement allowed. (Id. at 6.) Plaintiff repeatedly alleges that he was "tried and convicted" for violating the modified restraining order, then placed on probation, and that both the charge and the probation were wrongful given that they arose from the improperly-modified restraining order. (Id. at 7.) Plaintiff alleges that the superior court acted in excess of its jurisdiction in "sentencing" plaintiff in connection with the modified restraining order. (Id. at 8.) Plaintiff claims that his arrest, sentencing, confinement, and probation in connection with the modified restraining order reveals a conspiracy between the Sacramento Superior Court, the State of California, the California Highway Patrol, and Sacramento District Attorneys, among others. (Id. at 17.) Plaintiff alleges that his "arrest," his "conviction and jail sentence," and his "three years formal probation," amount to violations of his civil rights. (Id.)
Plaintiff's amended pleading also includes a second set of allegations arising from his arrest and confinement in connection with the "civil" matter of failing to pay child support. (Id. at 9-11.) Plaintiff claims that, in connection with a "civil confinement charge of child support," ...