Levy v. Forbes Magazine

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/19/2013 GRANTING 2 Motion to Proceed IFP; RECOMMENDING that the 1 Complaint be dismissed without leave to amend. Referred to Chief Judge Morrison C. England, Jr. Objections due within 14 days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMANDA U. LEVY,

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No. 2:13-cv-1017 MCE AC PS

Plaintiff,
v.

ORDER AND

FORBES MAGAZINE,

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FINDINGS & RECOMMENDATIONS

Defendant.

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Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to

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28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by

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Local Rule 72-302(c)(21).

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Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable

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to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(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 (9th
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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.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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Plaintiff brings suit against defendant Forbes Magazine and accuses one of its female

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employees of emailing plaintiff to gather information as to why plaintiff had sued Bank of

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America. Plaintiff claims that she informed defendant that three women kidnaped her child; that

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she has been falsely imprisoned, which according to plaintiff is a form of bullying; that some

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women have bullied her for not aging; and that she has been banned from volunteering by women

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who bully her. The court finds the allegations in plaintiff's complaint so fantastical and bizarre

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that it concludes that plaintiff’s complaints are “clearly baseless.” Neitzke, 490 U.S. at 327. For

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this reason, the complaint must be dismissed.

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The court also notes that this complaint appears to be one of several hundred frivolous

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complaints that plaintiff has filed all over the country. See Ajuluchuku–Levy v. Schleifer, 2009

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WL 4890768, at *7 (E.D.N.Y. Dec. 15, 2009) (“[A] survey of the dockets of the United States

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district courts reveals that as of the date of this Order, Plaintiff has commenced two hundred fifty-

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eight (258) actions in various district courts across the United States. Several district courts have

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noted that “the ‘overwhelming majority’ of cases filed by plaintiff have been totally without

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merit.”) (quoting Ajuluchuku v. Southern New England School of Law, 2006 WL 2661232, at *3

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(N.D. Ga. Sep. 14, 2006)). In light of plaintiff’s frivolous allegations herein, as well as her
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history of filing frivolous actions containing many of the same allegations, the court will

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recommend that this action be dismissed without leave to amend pursuant to 28 U.S.C.

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§ 1915(e)(2). Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily

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would permit a pro se plaintiff to amend, leave to amend should not be granted where it appears

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amendment would be futile).

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In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s application to
proceed in forma pauperis is granted; and
IT IS HEREBY RECOMMENDED that plaintiff’s complaint be dismissed without leave
to amend.
These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Plaintiff has an

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opportunity to oppose by filing objections to these findings and recommendations. Within

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fourteen days after being served with these findings and recommendations, she may file written

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objections with the court and serve all parties. Such documents should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.” Replies to the objection shall be served and

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filed within ten days after service of the objections. Failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. See generally Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: August 19, 2013

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