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Brown v. United States

United States District Court, E.D. California

November 8, 2019

DEXTER BROWN, Plaintiff,
v.
UNITED STATES, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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).

         II. Initial Motions

         In 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.

         In an 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.

         III. Screening Standards

         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 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. § 1915A(b)(1), (2).

         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 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.

         Rule 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).

         IV. Plaintiff's Amended Complaint

         The 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.)

         V. Claims Under the ...


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