United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed an original and
a first amended complaint. He has also requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915
and a preliminary injunction or temporary restraining order.
initial matter, the court notes that although plaintiff's
address of record is currently listed as High Desert State
Prison, the Inmate Locator website operated by the California
Department of Corrections and Rehabilitation indicates that
plaintiff is currently incarcerated at Richard J. Donovan
Correctional Facility. The Clerk of the Court will be
directed to update the docket accordingly.
Application to Proceed In Forma Pauperis
has requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis. ECF No. 12. 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 undersigned will recommend that the
complaint be summarily dismissed.
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. § 1915A(b).
“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and internal quotations omitted), superseded by statute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, Hospital
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 (1969) (citations omitted).
Failure to State a Claim
court has reviewed both plaintiff's original and first
amended complaints (ECF Nos. 1, 9), but is unable to identify
any cognizable claims in either complaint. The original
complaint identifies Warden Spearman, the Department of Army,
the Secretary of Labor, and the Office of Management and
Budget as defendants, yet makes no allegations against any of
these defendants (ECF No. 1), while the first amended
complaint names only Warden Spearman and also fails to make
any allegations against him (ECF No. 9). In both complaints,
plaintiff states that he is bringing his complaint under
Section 504 of the Rehabilitation Act (RA) of 1973, yet he
provides no facts that would demonstrate that he has a
disability or was discriminated against because of his
disability. ECF No. 1 at 5; ECF No. 9 at 4-5. Instead, the
complaints each set forth a chronology of events that are
unrelated to each other or to a claim for violation of the RA,
and make references to an unspecified contract to which
plaintiff is apparently a party. ECF No. 1; ECF No. 9.
Specifically, the complaints discuss events such as the
ratification of the Eighteenth and Twenty-Second Amendments
to the United States Constitution, the legalization of
gambling in Nevada, President George H.W. Bush's response
to Iraqi aggression against Kuwait, the murders of Benjamin
“Buggsy” Segal and Sam Giacona,  and President
Nixon's secret war in Cambodia. ECF Nos. 1, 9.
the court is unable to identify any cognizable claims in the
first amended complaint, even when reviewing it in
conjunction with the original complaint, the first amended
complaint must be dismissed. In dismissing a complaint, leave
to amend should be granted if it appears possible that the
defects in the complaint could be corrected, especially if a
plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122,
1130-31 (9th Cir. 2000) (en banc); Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro
se litigant must be given leave to amend his or her
complaint, and some notice of its deficiencies, unless it is
absolutely clear that the deficiencies of the complaint could
not be cured by amendment.” (citing Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However,
if, after careful consideration, it is clear that a complaint
cannot be cured by amendment, the court may dismiss without
leave to amend. Cato, 70 F.3d at 1005-06. Given the
fanciful nature of plaintiff's allegations and their
failure to implicate any cognizable claims, the undersigned
finds that leave to amend would be futile. The first amended
complaint should therefore be dismissed without leave to
Motion for Temporary Restraining Order or ...