Galindez v. Solano Public Garden et al

Filing 12

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 02/27/12 vacating the 12/22/11 10 FINDINGS AND RECOMMENDATIONS. Also, RECOMMENDING that the complaint be dismissed without leave to amend and this case closed. Referred to Judge Lawrence K. Karlton. Objections due within 21 days.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD LLAMAS GALINDEZ,

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Plaintiff,

No. CIV S-11-2702 LKK CKD P

vs.
SOLANO PUBLIC GARDEN, et al.
Defendants.

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ORDER AND
FINDINGS AND RECOMMENDATIONS

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On December 22, 2011, the court recommended that this action be dismissed

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without prejudice for plaintiff’s failure to submit an application to proceed in forma pauperis

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(IFP) or pay the filing fee, as required by its order of November 17, 2011. See Findings and

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Recommendations (Docket No. 10). Plaintiff has filed objections, claiming he submitted an

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application within the time required. However, the court has no record of receiving an

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application from him.

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The court’s ordinary practice is to give considerable leeway to pro se litigants in

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assessing whether they have attempted in good faith to meet the procedural requirements for

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proceeding with their claims. Even accepting plaintiff’s representation about his attempt to

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comply with the court’s November 17 order as true, the court is of the opinion that allowing

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plaintiff to re-submit an IFP application would be futile because the allegations of the complaint
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cannot pass the scrutiny the court must give them under 28 U.S.C. § 1915A(a). Under that

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statute, the court must dismiss a complaint or portion thereof if the prisoner has raised claims that

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

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2).

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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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When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007), and construe the complaint in the light most favorable to the plaintiff. See Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than

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those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive

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dismissal for failure to state a claim, a pro se complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at

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570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint
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for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard

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Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

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Plaintiff’s allegations are rambling, mostly incoherent and, to the extent they are

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understandable, patently implausible. Under 28 U.S.C. § 1915A(a) and Iqbal, the complaint

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should be dismissed without leave to amend.

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Accordingly, IT IS HEREBY ORDERED that the findings and recommendations
of December 22, 2011, are vacated.

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IT IS RECOMMENDED that the complaint be dismissed without leave to amend
and this case 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 twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 27, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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