Simon v. The Dept. of CDCR and DMH

Filing 41

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/13/2012 RECOMMENDING that all pending motions be denied as moot; this action be dismissed as frivolous; and this action be closed. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN P. SIMON,

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Plaintiff,

No. CIV S-10-2555 GEB DAD P

Defendants.

FINDINGS AND RECOMMENDATIONS

vs.
CDCR et al.,

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/
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action
filed pursuant to 42 U.S.C. § 1983.
By way of background, on August 4, 2011, the court dismissed plaintiff’s

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complaint with leave to amend, explaining to him that any amended complaint he elected to file

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must contain a short and plain statement of his claims. See Fed. R. Civ. P. 8(a)(2). On

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September 13, 2011, the court granted plaintiff an extension of time to for that purpose. On

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October 12, 2011, plaintiff submitted to the court for filing thousands of disorganized and

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confusing documents. The court advised plaintiff that these documents did not qualify as an

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amended complaint. The court declined to file plaintiff’s voluminous documents and instead

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returned them to him. In the interest of justice, the court again granted plaintiff leave to file an

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amended complaint, this time of no more than twenty-five (25) pages in length. The court
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cautioned plaintiff that his failure to comply with the court’s order, including compliance with

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the twenty-five (25) page limit now imposed, would result in a recommendation that this action

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be dismissed. Nonetheless, on November 2, 2011, plaintiff filed five amended complaints.

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SCREENING REQUIREMENT
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the

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actions of their employees under a theory of respondeat superior and, therefore, when a named

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defendant holds a supervisorial position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

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(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

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allegations concerning the involvement of official personnel in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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PLAINTIFF’S AMENDED COMPLAINTS
As noted above, on November 2, 2011, plaintiff filed five amended complaints

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with the court. Once more, plaintiff’s hand-written allegations are confusing, disorganized, and

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outlandish. Plaintiff’s primary complaint appears to be that hundreds of prison officials across

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the state have used a “mind-bending” device utilizing penilephethymegraph/gps technology to

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torture him and to modify his behavior. Plaintiff alleges that he has suffered mental and physical
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injuries as a result of the device and requests injunctive relief and damages.

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ANALYSIS

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Plaintiff’s amended complaint is frivolous and should be dismissed. The

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complaint is based on the outlandish premise that hundreds of prison officials statewide have

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used a device to monitor and torture him. Plaintiff’s allegations are too far-fetched to be

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believed. See 28 U.S.C. 1915(e)(2)(B)(i) (“the court shall dismiss the case at any time if the

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court determines that . . . the action or appeal . . . is frivolous or malicious”); Neitzke, 490 U.S. at

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327-28 (in forma pauperis statute accords judges the authority to dismiss those claims whose

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factual contentions are clearly baseless, such as those “describing fantastic or delusional

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scenarios”); see also Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990) (“It is not an

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abuse of discretion to deny leave to amend when any proposed amendment would be futile.”).

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. All pending motions be denied as moot;

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2. This action be dismissed as frivolous; and

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3. This action be closed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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DATED: March 13, 2012.

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DAD:9
simo2555.56

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