Clarke v. Flynn, et al

Filing 14

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/11/2016 ORDERING the Clerk to assign a district judge to this case. IT IS RECOMMENDED that this complaint be dismissed as frivolous and this case closed. Assigned and referred to Judge John A. Mendez; 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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LEE KELLY CLARKE,

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No. 2:15-cv-0920 CKD (TEMP) P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

FLYNN, et al.
Defendants.

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Plaintiff, a prisoner at the Shasta County Jail, is proceeding pro se with an action under 42

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U.S.C. § 1983. Although plaintiff has not paid the required filing fee and his application to

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proceed in forma pauperis remains pending, see 28 U.S.C. § 1915(a), the court finds it has

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sufficient information in the petition to conduct the screening analysis mandated by 28 U.S.C. §

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1915A and to recommend that this action be dismissed without leave to amend.

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The court is required to screen complaints brought by prisoners who seek relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 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 (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. 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 granted,

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the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and

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construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416

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

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lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to

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state a claim, a pro se complaint must contain more than “naked assertions,” “labels and

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conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals of the elements

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of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have

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facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Attachments to a complaint are

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considered to be part of the complaint for purposes of a motion to dismiss for failure to state a

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claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

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In this case, the plaintiff has alleged all manner of “treasonous” activities against an

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extraordinarily large number of defendants, including the Shasta County Sheriff, United States

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Attorney General Loretta Lynch (as well as her predecessor, Eric Holder), California Governor

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Jerry Brown, numerous state and federal agencies, at least two churches, National Public Radio,

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Fox News and Rolling Stone Magazine. These allegations are “too far-fetched to be believed,”

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which means, for screening purposes, they are “frivolous and should be dismissed.” Clinton v.

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Director, No. CIV-09-0645 DAD P, 2009 WL 799084 at *2 (E.D.Cal. March 24, 2009). See also

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Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (stating that 28 U.S.C. § 1915 empowers
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federal courts to dismiss “claims describing fantastic or delusional scenarios, claims with which

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federal district judges are all too familiar”).

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Although this court frequently grants plaintiffs leave to amend when their pleadings do

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not pass the screening test described above, the court has discretion not to grant leave to amend

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patently frivolous allegations if doing so would be futile. See Bonin v. Calderon, 59 F.3d 815,

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845 (9th Cir. 1995). That is the case here. Therefore this complaint should be dismissed as

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frivolous, without leave to amend.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district
judge to this case; and
IT IS HEREBY RECOMMENDED that this complaint be dismissed as frivolous and this
case closed.

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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, 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 response to the

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

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

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

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Dated: January 11, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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