Ajuluchuku v. United Air Lines

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 11/1/2012 RECOMMEDNING that this action be dismissed. Referred to Judge John A. Mendez. Objections due within 14 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMANDA U. AJULUCHUKU,
Plaintiff,

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No. CIV 2:12-cv-2203-JAM-JFM (PS)

vs.
UNITED AIRLINES,
Defendant.

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FINDINGS & RECOMMENDATIONS
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Plaintiff is proceeding in this action pro se. By order filed September 19, 2012,

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plaintiff’s complaint was dismissed with leave to file an amended complaint. Plaintiff has now

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filed both a first and second amended complaint.

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Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any

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time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious,

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fails to state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant.

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A claim is legally frivolous when it lacks an arguable basis either in law or in

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

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28 (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.
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Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d

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639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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Because the second amended complaint on file supersedes any previously filed

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complaints, the court will consider the allegations in that pleading. On review, the court finds

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those allegations to be identical to those set forth in the dismissed complaint. That is, plaintiff

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again claims, inter alia, that she was poisoned on a United Airlines flight from New York City to

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Los Angeles in February 2012, that her son was kidnaped and her father murdered by Baltimore

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Police Officers, that she is being discriminated against on account of her race and physical

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disability, and that a doctor at UCLA extracted two teeth when defendant(s) attempted to murder

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her in February 2012. The court again finds the allegations in plaintiff's complaint so fantastical

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and bizarre that it concludes that plaintiff’s complaints are “clearly baseless.” Neitzke, 490 U.S.

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at 327.

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Furthermore, the federal venue statute requires that a civil action based on

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diversity jurisdiction be brought only in “(1) a judicial district where any defendant resides, if all

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defendants reside in the same State, (2) a judicial district in which a substantial part of the events

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or omissions giving rise to the claim occurred, or a substantial part of property that is the subject

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of the action is situated, or (3) a judicial district in which any defendant is subject to personal

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jurisdiction at the time the action is commenced, if there is no district in which the action may

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otherwise be brought.” 28 U.S.C. § 1391(a).

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Defendant does not reside in this district, nor does plaintiff presently reside in this

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district. The claim arose in either New York City, which is in the Southern District of New

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York, or in Los Angeles, which is in the Central District of California. Therefore, plaintiff’s

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claim should have been filed in the United States District Court for the Southern District of New

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York or the Central District of California. “The district court of a district in which is filed a case

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laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice,
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transfer such case to any district or division in which it could have been brought.” 28 U.S.C.

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§ 1406(a). A court may sua sponte dismiss based on defective venue. Costlow v. Weeks, 790

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F.2d 1486, 1488 (9th Cir. 1986).

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

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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)(1). Within fourteen

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: November 1, 2012.

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