United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
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.
Application to Proceed In Forma Pauperis
has submitted an application to proceed in forma pauperis
under 28 U.S.C. § 1915. “A district court may deny
leave to proceed in forma pauperis at the outset if it
appears from the face of the proposed complaint that the
action is frivolous or without merit.” Tripati v.
First Nat'l Bank & Tr., 821 F.2d 1368, 1370 (9th
Cir. 1987) (citations omitted). As addressed below, the
undersigned finds that the complaint is frivolous, and it
will therefore be recommended that plaintiff's request to
proceed in forma pauperis be denied.
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 “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).
“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at 327), superseded by statute on other grounds as stated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. Franklin, 745 F.2d at 1227-28 (citations
alleges that the Los Angeles Police Department, City of Los
Angeles, various detectives and parole officers, paid
informants, his ex-wife, Harris Corporation, and several
other individuals have violated his rights. ECF No. 1 at 2-8.
Specifically, he alleges that the defendants are using
Stingray technology to spy on his calls with his attorney and
to spoof his identity by reading his thoughts and collecting
his memories. Id. at 3, 5. He also claims that
defendants are using the technology to put thoughts in his
head and dreams and are attempting to get him to kill someone
in order to keep him in prison. Id. at 4-5.
allegations in plaintiff's complaint are delusional and
do not present facts or legally coherent theories of
liability establishing a claim for relief. These claims
should therefore 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)).
No Leave to Amend
court finds that a complaint or claim should be dismissed for
failure to state a claim, the court has discretion to dismiss
with or without leave to amend. 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 claim cannot be cured by
amendment, the Court may dismiss without leave to amend.
Cato, 70 F.3d at 1105-06.
undersigned finds that, as set forth above, plaintiff's
complaint is frivolous. Moreover, given the nature of
plaintiff's claims, there is no way for plaintiff to
amend the complaint to state a claim for which relief can be
granted. Leave to amend would thus be futile. “A
district court may deny leave to amend when amendment would
be futile.” Hartmann v. CDCR, 707 F.3d 1114,
1130 (9th Cir. 2013).
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