VanBuren v. Eckgaurd

Filing 10

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/16/2014 GRANTING plaintiff's 9 application to proceed IFP, however no fee is assessed; and RECOMMENDING that this action be dismissed without prejudice due to plaintiff's failure to state a cognizable claim. Referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAURICE VAN BUREN,

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Plaintiff,

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v.

ORDER and

DOUGLAS ECKGAURD,1

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No. 2:13-cv-01916 TLN DAD P

FINDINGS AND RECOMMENDATIONS

Defendant.

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Plaintiff is proceeding without counsel in this action filed pursuant to 42 U.S.C. § 1983.

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This action is referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B),

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Local Rule 302(c), and Local General Order No. 262.
Plaintiff is committed to Napa State Hospital by order of the Solano County Superior

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Court. (See ECF No. 5 at 6.) By order filed September 23, 2013, this court directed plaintiff to

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pay the required filing fee or file an application to proceed in forma pauperis, and dismissed

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plaintiff’s complaint while granting him leave to file an amended complaint. (ECF No. 3.) The

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court cautioned plaintiff that if he was challenging the legality of his detention or underlying

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commitment he must pursue such relief in a petition for writ of habeas corpus. (Id. at 2.) The

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Plaintiff also spells defendant’s name as “Eckgurod” and “Eckrod.”
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court noted that in another of plaintiff’s cases he was similarly advised of the distinctions between

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a civil rights action and an action in habeas corpus. (Id. at fn. 2.)

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Plaintiff has now submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). (See ECF No. 9.) Accordingly, plaintiff’s request to proceed in forma pauperis will be

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granted.

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Plaintiff has also filed an Amended Complaint. (See ECF No. 5.) The court is required to

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screen complaints brought by prisoners seeking relief against a governmental entity or officer or

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employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint

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or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that

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fail to state a claim upon which relief may be granted, or that seek monetary relief from a

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defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). The court may dismiss

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a claim as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Franklin

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v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).

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Plaintiff’s Amended Complaint is entitled “Dismissal of Jessica Law, Dismissal of

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Meggans Law, Sentance of Parole Laws” (sic). (ECF No. 5 at 1.) The only defendant named in

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the amended complaint is D. Eckgaurd, plaintiff’s parole agent. (Id. at 1-2.) Plaintiff’s statement

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of his claim provides in full as follows:

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Exstarorendary (sic) circumstance misconduct and wrongful doing
filing statement of the leading complaint is false statements.
(Id. at 3.) Plaintiff requests the following relief:

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Please send for relief of my being falsely arrested one billion
dollars. Please release me with records Exspunged (sic).

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(Id.) In the body of his complaint plaintiff alleges that the sentencing court relied on a “wrongful

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police report” (id. at 4), and that plaintiff is “innocense” (sic) (id. at 9).

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Review of the Amended Complaint demonstrates that it fails to state a cognizable civil

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rights claim. Plaintiff seeks both monetary damages and release from custody. Moreover, even if

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this pleading was characterized as an application for writ of habeas corpus, the allegations are so

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vague as to render plaintiff’s claims frivolous.
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Despite ample opportunity to file a pleading that states a potentially cognizable basis for

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relief, plaintiff has failed to do so. The court finds that it would be futile to authorize further

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amendment of the pleading in this action. “A district court may deny leave to amend when

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amendment would be futile.” Hartmann v. California Department of Corrections and

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Rehabilitation, 707 F.3d 1114, 1130 (9th Cir. 2013) (citation omitted); accord Lopez v. Smith,

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203 F.3d 1122, 1129 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a

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complaint lacks merit entirely.”).

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Due to the lack of clarity whether plaintiff intended that this case proceed as a civil rights
action or a habeas corpus action, the court will not assess payment of the filing fee.2

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For these reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis is granted; however, no fee is

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assessed.

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Additionally, IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed without prejudice due to plaintiff’s failure to state a

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cognizable claim.

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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)(l). Within fourteen days

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

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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.” Plaintiff is advised that

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

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

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Dated: October 16, 2014

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DAD:4
vanb1916.f&r.fsc.

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If this matter were to proceed as a civil rights action, plaintiff would be required to pay, over
time, the full statutory filing fee of $350.00, despite granting of plaintiff’s application to proceed
in forma pauperis. See 28 U.S.C. §§ 1914(a), 1915(b)(1).
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