United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS AND ORDER (ECF NOS. 1
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
September 18, 2019, Plaintiff filed the instant action
against Defendant “United States of America, ”
and requested leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915.(ECF No. 2.) Plaintiff’s application
in support of his request to proceed in forma pauperis makes
the showing required by 28 U.S.C. § 1915. Accordingly,
the Court grants Plaintiff’s request to proceed in
determination that a plaintiff may proceed in forma pauperis
does not complete the required inquiry. Pursuant to 28 U.S.C.
§ 1915, the court is directed to dismiss the case at any
time if it determines that 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. A claim is
legally frivolous when 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). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory. Neitzke, 490 U.S. at 327.
Pro se pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v.
Pacifica Police Dep’t., 901 F.2d 696, 699 (9th
Cir. 1988). Unless it is clear that no amendment can cure the
defects of a complaint, a pro se plaintiff proceeding in
forma pauperis is ordinarily entitled to notice and an
opportunity to amend before dismissal. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)
superseded on other grounds by statute as stated in Lopez
v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc);
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
Plaintiff’s complaint concerns a 2013 order declaring
him a vexatious litigant. (See No.
2:13-cv-43-MCE-EFB at ECF No. 67.) Plaintiff requests this
order be voided, as he asserts he was not given notice of the
court’s intent to label him a vexatious litigant, nor
was he given an opportunity to be heard on this issue. (ECF
No. 1.) However, a review of the docket in the prior case
reveals that Plaintiff has already raised this issue before
Judge England, who considered the issue as a motion for
reconsideration. (See No. 2:13-cv-43-MCE-EFB at ECF
Nos. 70, 72.) There, Judge England determined that Plaintiff
in fact had received notice of the vexatious litigant issue,
and held a hearing on it; reconsideration was therefore
denied. (Id. at ECF No. 72.) Plaintiff’s
current complaint is merely an invective-filled reassertion
of his previous arguments. (See ECF No. 1.) Thus,
Plaintiff’s complaint is legally frivolous, and should
be dismissed with prejudice. Neitzke, 490 U.S. at
327. Further, given this context, amendment would be futile.
Noll, 809 F.2d at 1448.
IT IS HEREBY RECOMMENDED that:
action be DISMISSED WITH PREJUDICE; and
Clerk of Court be directed to CLOSE this case.
light of those recommendations, IT IS ALSO HEREBY ORDERED
that all pleading, discovery, and motion practice in this
action are stayed pending resolution of the findings and
recommendations. With the exception of objections to the
findings and recommendations and any non-frivolous motions
for emergency relief, the court will not entertain or respond
to any motions and other filings until the findings and
recommendations are resolved.
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
(14) 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.” Any reply
to the objections shall be served on all parties and filed
with the court within fourteen (14) days after service of the
objections. The parties are advised that 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, 1156-57 (9th Cir. 1991).
SO ORDERED AND RECOMMENDED.
 This action proceeds before the
undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C.