United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
Plaintiff
seeks leave to proceed in forma pauperis pursuant to
28 U.S.C. 1915.[1] His declaration makes the showing required
by 28 U.S.C. §1915(a)(1) and (2). See ECF No.
2. Accordingly, the request to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
Determining
that plaintiff may proceed in forma pauperis does
not complete the required inquiry. Pursuant to §
1915(e)(2), the court must dismiss the case at any time if it
determines 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. As explained below, plaintiff's
complaint must be dismissed for failure to state a claim.
Although
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
Under
this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex
Hosp. Trustees, 425 U.S. 738, 740 (1976), 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). A pro se
plaintiff must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2)
“requires a complaint to include 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, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)).
Plaintiff's
complaint alleges that “Government USA and employee
Nikki Haley ignored letters” and have violated
international law by keeping children in the custody of a
family gang that “abused children with black eye and
kidnapped children on territory USA.” ECF No. 1 at 2.
Plaintiff further alleges that in May 2018, “government
USA destroyed evidence of multiple crimes against life,
health and personal property in USA, without court hearing .
. . . “ Id. He also alleges that
“Government USA bribed diplomates with cash on
territory USA and officials in Spain.” Based on these
allegations, plaintiff purports to assert claims under 18
U.S.C. §§ 241 and 1113 against the country of
Spain. Id. at 1.
Plaintiff,
however, cannot state a claim for violations of 18 U.S.C.
§§ 241 and 1113, which are criminal statutes that
do not provide a private right of action. Allen v. Gold
Country Casino, 464 F.3d 1044, 1048 (9th Cir.
2006) (affirming the dismissal claims under 18 U.S.C. §
241 because it is a criminal statute that does “not
give rise to civil liability”); Nguyen v. Ridgewood
Sav. Bank, 2015 WL 2354308, at *13 (E.D.N.Y. May 15,
2015) (holding that 18 U.S.C. § 1113 does not provide a
private right of action).
Additionally,
plaintiffs allegations are fanciful and frivolous, and could
not plausibly support a claim against the only named
defendant, Spain. Denton v. Hernandez, 504 U.S. 25,
33 (1992) (“[A] finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible . . . .”).
Therefore, it is recommended that plaintiffs complaint be
dismissed without leave to amend. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (while the
court ordinarily would permit a pro se plaintiff to amend,
leave to amend should not be granted where it appears
amendment would be futile); California Architectural
Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472
(9th Cir. 1988) (“Valid reasons for denying leave to
amend include undue delay, bad faith, prejudice, and
futility.”).
Accordingly,
IT IS ORDERED that plaintiffs request for leave to proceed
in forma pauperis (ECF No. 2) is granted.
Further,
it is RECOMMENDED that plaintiffs complaint be dismissed
without leave to amend, and the Clerk be directed to close
the case.
These
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Failure to
file objections within the specified time may waive the right
to appeal the District Court's order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Notes:
[1] This case, in which plaintiffs are
proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28
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