United States District Court, S.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT AS FRIVOLOUS
AND FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C.
§§ 1915(e)(2)(B) AND 1915A(b)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.
12, 2016, Plaintiff Gerald Tucker, currently incarcerated at
the Richard J. Donovan Correctional Facility
(“RJD”) located in San Diego, California, and
proceeding pro se, filed a civil rights complaint pursuant to
42 U.S.C. § 1983 (ECF No. 1.)
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) when he filed his Complaint; instead, he filed
a Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (ECF No. 14).
January 17, 2017, the Court granted Plaintiff's Motion to
Proceed IFP but simultaneously dismissed his Complaint for
failing to state a claim and as frivolous pursuant to 28
U.S.C. § 1915(e)(2) and § 1915A. (ECF No. 17, at
7-8.) Plaintiff was granted leave to file an amended
complaint in order to correct the deficiencies of pleading
found in his original Complaint. (Id.) On February
27, 2017, Plaintiff has filed what appears to be his First
Amended Complaint (“FAC”). (ECF No. 18.)
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
Plaintiff is a prisoner and is proceeding IFP, his FAC
requires a pre-answer screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). Under these statutes, the
Court must sua sponte dismiss a prisoner's IFP complaint,
or any portion of it, which is frivolous, malicious, fails to
state a claim, or seeks damages from defendants who are
immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27
(9th Cir. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The purpose of [screening] is ‘to ensure that
the targets of frivolous or malicious suits need not bear the
expense of responding.'” Nordstrom v.
Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting
Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 681 (7th Cir. 2012)).
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint “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) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
factual allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Determining whether a
complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
again, Plaintiff's FAC is difficult to decipher as many
of the claims Plaintiff is attempting to allege are
disjointed and incomprehensible. Rule 8 of the Federal Rules
of Civil Procedure provides that in order to state a claim
for relief in a pleading it must contain “a short and
plain statement of the grounds for the court's
jurisdiction” and “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(1) & (2). Here, the
Court finds that Plaintiff's FAC falls short of complying
with Rule 8.
not entirely clear, it appears that Plaintiff is alleging
that officials with the California Department of Correction
and Rehabilitation (“CDCR”) are under
“suspicion of murder” and are “covering
up” the alleged murder of his brother and
sister-in-law. (FAC at 1-2.) There are no comprehensible
allegations contained anywhere in Plaintiff's FAC.
“[A] complaint, containing as it does both factual
allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact. . . . [The]
term ‘frivolous, ' when applied to a complaint,
embraces not only the inarguable legal conclusion, but also
the fanciful factual allegation.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A pleading is
“factual[ly] frivolous[ ]” under §
1915(e)(2) and § 1915A(b)(1) if “the facts alleged
rise to the level of the irrational or the wholly incredible,
whether or not there are judicially noticeable facts
available to contradict them.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992). When determining
whether a complaint is frivolous, the court need not accept