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Miller v. Kernan

United States District Court, E.D. California

June 25, 2019

CHARLES SAMUEL MILLER, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I. Application to Proceed In Forma Pauperis

         Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF Nos. 6, 9. Accordingly, the request to proceed in forma pauperis will be granted.

         Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         II. Statutory Screening of Prisoner Complaints

         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 “frivolous, malicious, or 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).

         A claim “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 . . . 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) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Id.; Franklin, 745 F.2d at 1227-28 (citations omitted).

         “Federal 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)). “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). 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.” Twombly, 550 U.S. at 555 (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)).

         “[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. (citing Twombly, 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. Trs. of the Rex Hosp., 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).

         III. Complaint

         Currently before the court is plaintiff's first amended complaint. It alleges that defendant Scott Kernan, Secretary for the California Department of Corrections and Rehabilitation (CDCR), and Doe defendants A to Z, violated plaintiff's Fourth, Fifth, Sixth, Eight, and Fourteenth Amendment rights. ECF No. 5 at 2. Specifically, plaintiff alleges that prison officials, under the supervision of defendants, intercepted all his incoming and outgoing mail, isolated him inside of prison, denied him access to post-judgment courts, and sabotaged his efforts to appeal his conviction. Id. However, the bulk of plaintiff's factual allegations are unrelated to defendant Kernan or any other correctional personnel.

         Plaintiff alleges that between 1984 and 1991, a group of both government and private attorneys carried out a criminal scheme against him. Id. at 2-7. Attorneys included Los Angeles Deputy District Attorneys Elliot Alhadeff and David D'ver, private divorce attorneys Jacqueline Fox and Susan Bouguise, and their “support groups.”[1] Id. Plaintiff refers to these parties collectively as the Alhadef/Fox group (id., at 2, ¶ 7), and although they are not named defendants in the complaint, they will be treated as such for the purpose of screening since the bulk of the complaint is made up of allegations against them.

         Plaintiff asserts that between 1984 and 1991, the Alhadef/Fox group manipulated the outcome of his family court case in favor of his ex-wife; harassed him until he was forced to leave the state, causing him to lose his property; accused him of molesting his then three-year-old son; allegedly wiretapped his offices, telephones, and vehicles; had him incarcerated on what he asserts was a bogus warrant; and had him arrested and charged with murder and planted attorney Bruce C. Hill as counsel in order to sabotage his case. Id. at 2-6, ¶¶ 6-27. Plaintiff was ultimately convicted of the murder in 1991 in Los Angeles County Superior Court No. LA000079. Id. at 5-6, ¶¶ 22, 29. After his conviction, plaintiff was placed in the custody of the CDCR. Id. at 6, ¶ 29. At this point, Alhadeff/Fox instructed the CDCR to intercept his mail and prevent him from earning money, so he would be unable to hire an appellate attorney, and sabotaged his direct appeal. Id., ¶¶ 29-30.

         IV. Failure ...


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