Arzaga v. Cate et al

Filing 29

ORDER signed by Magistrate Judge Allison Claire on 10/25/2016 DISMISSING plaintiff's complaint, without leave to amend. Plaintiff's numerous additional motions 6 , 7 , 12 , 13 , 14 , 16 , 19 , 20 , 21 , 23 are DENIED as moot. This action is DISMISSED. Dismissal of this case shall count as a "strike" under 28 U.S.C. § 1915(g). The Clerk shall close this case. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL J. ARZAGA,

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Plaintiff,

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No. 2:16-cv-0151 AC P

v.

ORDER

MATTHEW CATE, et al.,

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Defendants.

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I.

Introduction

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Plaintiff is a state prisoner at Kern Valley State Prison, under the authority of the

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California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se with

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a putative civil rights complaint entitled “Citizen Complaint For: Rape, Torture, Extortion,

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Hostage Kidnap” et seq. See ECF No. 1. Plaintiff has consented to the jurisdiction of the

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undersigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule

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305(a). See ECF No. 4.
For the reasons set forth below, the court dismisses this action as frivolous and for failure

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to state a potentially cognizable claim. See 28 U.S.C. § 1915A. The court denies as moot

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plaintiff’s request to proceed in forma pauperis, ECF No. 6, and numerous other motions.

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II.

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Screening of Plaintiff’s Complaint
A.

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Legal Standards

This court is required to screen complaints brought by prisoners seeking 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. Neitzke v.

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Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.

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1984).
Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement

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of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[T]he

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pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands

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more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to state a

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claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a claim to

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relief that is plausible on its face.’” Iqbal at 678 (quoting Twombly at 570). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged. The plausibility standard is not

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akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

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has acted unlawfully.” Id. (citing Twombly at 556). “Where a complaint pleads facts that are

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‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and

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plausibility of “entitlement to relief.”’” Id. (quoting Twombly at 557).

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A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies cannot be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
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B.

Screening

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In his complaint, plaintiff names approximately 39 defendants. See ECF No. 1, 4-5. The

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complaint summarily asserts claims for rape, torture, extortion, kidnap with hostage and ransom,

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“medical/hate crime/negligence . . . 420 counts,” violations of due process, intimidation of

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witnesses, obstruction of justice, impersonating an FBI officer, bribery, theft, robbery, and more.

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In addition to seeking damages in the amount of “$100 million,” plaintiff seeks, inter alia, a

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medical examination to locate the transmitter in his body and the camera lenses in his eyes.

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In a “supplement” to the complaint filed August 29, 2016, plaintiff names 22 defendants,

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including newly-named defendants California Health and Welfare Agency and San Joaquin

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General Hospital. See ECF No. 22. Plaintiff alleges that he has suffered “rape, torture, or

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sodomy” by defendants, causing “gruesome foreign objects forced and left in plaintiff,” and

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resulting in plaintiff contracting Hepatitis C. Plaintiff contends that he has been denied adequate

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medical and mental health care, and seeks “$250 million” in damages.

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Plaintiff has filed numerous motions, including the following:

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Motions for injunctive relief seeking, inter alia, “to obtain relevant forensic evidence

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located inside the plaintiff’s body forced by thee defendant(s),” ECF No. 7 at 10 (sic);

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and a temporary restraining order directing defendants to refrain from engaging in

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“retorial (sic) misconduct,” and “terrorist threats,” ECF No. 14 at 2;

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Motion for default judgment against the unserved defendants, ECF No. 12;

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Motion for summary judgment, including 29 alleged claims, ECF No. 13 at 19-20, and

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18 pages of string citations, id. at 3-19;

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Motion for all relevant evidence, ECF No. 16;

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Motion to appear before the Magistrate Judge, ECF No. 19:

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Motions to compel discovery, ECF Nos. 20, 21; and

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Motion to appoint counsel, ECF No. 23.

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The undersigned finds that plaintiff’s allegations – as set forth in his complaint and

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numerous additional filings – are fanciful and therefore legally frivolous; this action lacks any

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basis in fact or in law. See Neitzke, supra, 490 U.S. at 325; Franklin, 745 F.2d at 1227-28. The
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court also finds that amendment of the complaint would be futile. Noll, 809 F.2d at 1448.

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Therefore, plaintiff’s complaint will be dismissed without leave to amend; plaintiff’s numerous

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motions will be denied as moot; and the Clerk of Court will be directed to close this case.

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Dismissal of this case shall count as a “strike” under 28 U.S.C. § 1915(g).1

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III.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s complaint, ECF No. 1, is dismissed without leave to amend.

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2. Plaintiff’s numerous additional motions, ECF Nos. 6, 7, 12, 13, 14, 16, 19, 20, 21, 23,

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Conclusion

are denied as moot.

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3. This action is dismissed.

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4. Dismissal of this case shall count as a “strike” under 28 U.S.C. § 1915(g).

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5. The Clerk of Court is directed to close this case.

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SO ORDERED.

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DATED: October 25, 2016

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Under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), a
prisoner who has had three or more cases dismissed as frivolous, malicious, or for failure to state
a claim, is precluded from proceeding in forma pauperis in a new action unless the complaint
demonstrates that plaintiff was under “imminent danger of serious physical injury” at the time he
filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047 (9th Cir.
2007).
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