United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding pro se. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983, and Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), and requests leave to proceed in forma
pauperis under 28 U.S.C. § 1915. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
addition to his request to proceed in forma pauperis,
plaintiff filed a motion for reconsideration, asking the
court to reconsider its prior order requiring him to pay the
court's filing fee in full, accompanied by
plaintiff's proposed “fourth amended
complaint.” (ECF No. 13, 14.) Plaintiff asks the court
to screen the proposed amended complaint, which he claims was
inadvertently filed in the wrong action.
abundance of caution, the court grants plaintiff's motion
for reconsideration, and vacates the prior order requiring
plaintiff to pay the filing fee. Although plaintiff styled
his pleading as a “fourth amended complaint, ” no
other amended complaint has been filed in this action. In any
event, the court will screen plaintiff's amended
pleading. As discussed below, the undersigned finds
plaintiff's request for leave to proceed in forma
pauperis should be denied because his amended pleading is
legally frivolous and fails to state a cognizable claim, and
this action should be dismissed without leave to amend.
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. §
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 when it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). 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.” Bell Atlantic,
550 U.S. at 555. However, “[s]pecific facts are not
necessary; the statement [of facts] need only ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell
Atlantic, 550 U.S. at 555, citations and internal
quotations marks omitted). In reviewing a complaint under
this standard, the court must accept as true the allegations
of the complaint in question, Erickson, 551 U.S. at
93, and construe the pleading in the light most favorable to
the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), overruled on other grounds, Davis v.
Scherer, 468 U.S. 183 (1984).
Plaintiff's Amended Complaint
gravamen of plaintiff's amended complaint is that the
United States and Jeffrey P. Veltri, Chief, Civil Rights
Unit, Federal Bureau of Investigation, refused to act upon or
investigate plaintiff's claims that various California
State Prison personnel were (a) actively trying to murder
plaintiff by potassium poisoning, (b) hiring California State
prisoners to assault and batter plaintiff, and (c)
intercepting and obstructing plaintiff's mail, all in
violation of plaintiff's Eighth and Fourteenth Amendment
rights. (ECF No. 14.) Plaintiff includes his declaration
which sets forth myriad incidents from June 25, 2014, through
April 20, 2019. (ECF No. 14 at 12-56.) In the “imminent
threat of serious physical injury” portion, plaintiff
alleges that the failure of defendants to investigate
plaintiff's evidence deprives plaintiff of the
“protection of law, ” and subjects plaintiff to
imminent danger because if plaintiff's “immediate
custodians are not stopped, they will eventually succeed in
murdering [plaintiff.]” (ECF No. 14 at 59.) Plaintiff
states that he notified the instant defendants of the alleged
threats of harm by mail between 2015 and January 2018. (ECF
No. 14 at 4-11.) Plaintiff seeks declaratory and injunctive
relief, and appointment of counsel. (ECF No. 14 at 63.)
Claims Under the ...