Maxey v. Boxer

Filing 4

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/6/2015 GRANTING 2 Motion to Proceed IFP; RECOMMENDING that this action be dismissed without leave to amend; RECOMMENDING that the Clerk of Court be directed to close this action; REFERRING this matter to Judge Kimberly J. Mueller; ORDERING that any objections be filed within fourteen 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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JAMES MAXEY,

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No. 2:15-cv-0951 KJM CKD PS
Plaintiff,

v.

ORDER AND

BARBARA BOXER,

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FINDINGS AND 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 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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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (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 claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. 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, 127 S. Ct. 2197, 2200 (2007),

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and 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).

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In this action, plaintiff alleges claims against a variety of federal and state officials.

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Plaintiff has filed over one hundred and fifty actions in this District in the past two years; as with

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the other complaints, the instant complaint is vague, conclusory, rambling, incoherent and

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appears to be delusional. See Maxey v. United States of America, 2:14-cv-900 JAM EFB PS,

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Findings and Recommendations filed April 29, 2014 (ECF No. 4). Plaintiff’s claims are utterly

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frivolous and amendment would be futile. No further judicial resources should be expended in

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adjudicating plaintiff’s clearly meritless claims.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to proceed in forma

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paupers (ECF No. 2) is granted; and

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IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed without leave to amend; and

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2. The Clerk of Court be directed to close this action.

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/////
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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.” Failure to file objections

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

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 6, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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