United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, seeks relief pursuant to
42 U.S.C. § 1983 and has requested leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff
has consented to the jurisdiction of the undersigned
magistrate judge for all purposes pursuant to 28 U.S.C.
§ 636(c) and Local Rule 305(a). ECF No. 5.
Application to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). ECF Nos. 2, 4, 9.
Plaintiff's declaration makes the showing required by 28
U.S.C. § 1915(a). However, the court will not assess a
filing fee at this time. Instead, the complaint will be
Statutory Screening of Prisoner Complaints
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. §
“is [legally] frivolous where 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).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
Rule of Civil Procedure 8(a)(2) 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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (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.” Id. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
' 1216 (3d ed. 2004)).
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 Bell Atl. Corp., 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. (citing
Bell Atl. Corp., 550 U.S. at 556). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hosp. Bldg.
Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well
as 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
has filed a complaint, as well as a motion to amend and a
proposed first amended complaint. ECF Nos. 1, 6, 7. The
contents of the original and amended complaints are
substantially similar. In the complaints, plaintiff alleges
that his identical twin brother was convicted in California
of lewd acts with a minor. ECF No. 1 at 4-5. Under California
law, his brother was not required to register as a sex
offender. Id. However, his brother moved to New
Mexico and New Mexico required him to register as a sex
offender. Id. at 5. He asserts that New Mexico's
registry includes a photo of his brother, which has resulted
in plaintiff being persecuted and almost murdered by members
of the public in California, Colorado, and New Mexico due to
mistaken identity. Id.; ECF No. 7 at 13. Plaintiff
claims that the federal government and California, Colorado,
and New Mexico have failed to train state employees and
agencies on how to handle situations involving twins. ECF No.
7 at 13. The majority of both complaints revolve around the
allegations that a number of private individuals are tracking
plaintiff, using his cell phone and various email addresses,
and harassing him. ECF No. 1; ECF No. 7. He asks that the
court investigate and for compensatory damages. Id.
Failure to State a Claim
the majority of the allegations in plaintiff's original
and amended complaints, which deal with plaintiff being
tracked and spied on by private individuals, are rambling,
border on being incoherent and delusional, and do not present
facts or legally coherent theories of liability establishing
a claim for relief. These claims will be dismissed. Denton
v. Hernandez, 504 U.S. 25, 32-33 (1992) (“[A]
court may dismiss a claim as factually frivolous only if the
facts alleged are ‘clearly baseless, ' a category
encompassing allegations that are ‘fanciful, '
‘fantastic, ' and ‘delusional.'”
(internal citations omitted)). Additionally, to the extent
plaintiff may have been subject to harassment and attacks by
private individuals, he does not state cognizable claims
because 42 U.S.C. § 1983 applies only to persons who are
“acting under color of state law.” Marsh v.
County of San Diego, 680 F.3d 1148, 1158 (9th Cir.
2012). “‘[T]he under-color-of-state-law element
of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or
wrongful.'” Id. (quoting Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)).
respect to plaintiff's claims about New Mexico's sex
offender registry, while it is unfortunate that plaintiff
appears to have been the victim of mistaken identity, the
registry has his brother's photograph and name, not
plaintiff's. There is no violation of plaintiff's
privacy. To the extent plaintiff may also be attempting to
allege an Eighth Amendment claim against California,
Colorado, and New Mexico, “a State is not a
‘person' within the meaning of § 1983.”
Will v. Mich. Dep't of State Police, 491 U.S.
58, 65 (1989). Moreover, the only claims about California and
Colorado are that plaintiff was almost killed in each state
by private ...