Melger v. Obama

Filing 13

ORDER signed by Magistrate Judge Allison Claire on 3/31/2017 DENYING 6 Motion to Amend. The Complaint is DISMISSED without leave to amend. CASE CLOSED. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS JOSEPH MELGER,

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Plaintiff,

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No. 2:16-cv-1527 AC P

v.

ORDER

BARACK OBAMA,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has

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consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28

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U.S.C. § 636(c) and Local Rule 305(a). ECF No. 5.

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I.

Application to Proceed In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). ECF Nos. 2, 4, 9. Plaintiff’s declaration makes the showing required by 28 U.S.C. §

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1915(a). However, the court will not assess a filing fee at this time. Instead, the complaint will

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be summarily dismissed.

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II.

Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a

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 where 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). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,

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has an arguable legal and factual basis. Id.

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim, a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d

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ed. 2004)).

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“[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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,
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Hosp. Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading in

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the light 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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III.

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Complaint
Plaintiff has filed a complaint, as well as a motion to amend and a proposed first amended

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complaint. ECF Nos. 1, 6, 7. The contents of the original and amended complaints are

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substantially similar. In the complaints, plaintiff alleges that his identical twin brother was

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convicted in California of lewd acts with a minor. ECF No. 1 at 4-5. Under California law, his

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brother was not required to register as a sex offender. Id. However, his brother moved to New

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Mexico and New Mexico required him to register as a sex offender. Id. at 5. He asserts that New

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Mexico’s registry includes a photo of his brother, which has resulted in plaintiff being persecuted

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and almost murdered by members of the public in California, Colorado, and New Mexico due to

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mistaken identity. Id.; ECF No. 7 at 13. Plaintiff claims that the federal government and

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California, Colorado, and New Mexico have failed to train state employees and agencies on how

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to handle situations involving twins. ECF No. 7 at 13. The majority of both complaints revolve

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around the allegations that a number of private individuals are tracking plaintiff, using his cell

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phone and various email addresses, and harassing him. ECF No. 1; ECF No. 7. He asks that the

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court investigate and for compensatory damages. Id.

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IV.

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Failure to State a Claim
Here, the majority of the allegations in plaintiff’s original and amended complaints, which

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deal with plaintiff being tracked and spied on by private individuals, are rambling, border on

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being incoherent and delusional, and do not present facts or legally coherent theories of liability

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establishing a claim for relief.1 These claims will be dismissed. Denton v. Hernandez, 504 U.S.

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25, 32-33 (1992) (“[A] court may dismiss a claim as factually frivolous only if the facts alleged

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are ‘clearly baseless,’ a category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and

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‘delusional.’” (internal citations omitted)). Additionally, to the extent plaintiff may have been

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The court also notes that it does not conduct investigations and plaintiff’s request that the court
investigate these individuals and their harassment is not a proper request for relief.
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subject to harassment and attacks by private individuals, he does not state cognizable claims

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because 42 U.S.C. § 1983 applies only to persons who are “acting under color of state law.”

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Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012). “‘[T]he under-color-of-

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state-law element of § 1983 excludes from its reach merely private conduct, no matter how

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discriminatory or wrongful.’” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

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(1999)).

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With respect to plaintiff’s claims about New Mexico’s sex offender registry, while it is

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unfortunate that plaintiff appears to have been the victim of mistaken identity, the registry has his

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brother’s photograph and name, not plaintiff’s. There is no violation of plaintiff’s privacy. To

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the extent plaintiff may also be attempting to allege an Eighth Amendment claim against

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California, Colorado, and New Mexico, “a State is not a ‘person’ within the meaning of § 1983.”

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Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989). Moreover, the only claims about

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California and Colorado are that plaintiff was almost killed in each state by private citizens,

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which also fails to state a claim under § 1983. Finally, plaintiff’s claims against the federal

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government fail because the federal government does not oversee state governments.

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V.

No Leave to Amend
If the Court finds that a complaint should be dismissed for failure to state a claim, the

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court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122,

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1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that

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the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31;

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see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be

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given leave to amend his or her complaint, and some notice of its deficiencies, unless it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) (citing

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it

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is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to

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amend. Cato, 70 F.3d at 1005-06.

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The undersigned finds that, for the reasons set forth above, plaintiff’s complaint fails to
state a claim upon which relief may be granted. Moreover, given the nature of plaintiff’s claims,
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there is no way for plaintiff to amend the complaint to state a claim for which relief can be

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granted, and leave to amend therefore would be futile. “A district court may deny leave to amend

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when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013).

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VI.

Summary
The complaint will be dismissed because plaintiff’s complaint does not state a claim and

because of the types of claims he is making, amending the complaint would not help.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The motion to amend (ECF No. 6) is denied.

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2. The complaint is dismissed without leave to amend.

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DATED: March 31, 2017

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