Chinsami v. Fox et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/1/2017 GRANTING 2 Motion to Proceed IFP. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the Order to the CDCR filed currently herewith. This action is DISMISSED as frivolous. CASE CLOSED.(Donati, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHU CHINSAMI, 12 Plaintiff, 13 14 No. 2:16-cv-2461-EFB P v. ORDER GRANTING IFP AND DISMISSING ACTION AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915A R. FOX, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983.1 He has filed an application for leave to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. 20 I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 21 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 ///// 26 ///// 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). 1 1 II. Screening Requirement and Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 9 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 2 1 III. Screening Order 2 The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds it must be 3 dismissed as frivolous. Plaintiff alleges that “CDCR and defendant in fear are monitoring the 4 plaintiff[’s] brain by computer and keeping plaintiff under surveillance day and night.” ECF No. 5 1 at 3.2 He claims that CDCR has “plant[ed] a sophisticated computer programmer eye lens in 6 plaintiff[’s] right eye illegally . . . so defendant can control another human brain by computer 7 . . . .” Id. at 5. He adds that “defendant is gay and . . . communicating only by computer voice to 8 the plaintiff[’s] head and to irritate and frustrate plaintiff” and “will keep punishing plaintiff until 9 [he] turn[s] gay.” Id. at 6. He also alleges that defendant has “illegally hacked” his brain and that 10 he “cannot listen to music with headphones on [because] defendant hooked plaintiff[’s] brain by 11 computer hearing device in defendant[’s] ear.” Id. at 6-7. Apart from these fantastical 12 allegations, the complaint presents no coherent statement of facts that suggest a plausible legally 13 cognizable claim. 14 Plaintiff’s allegations are plainly frivolous because they lack even “an arguable basis 15 either in law or in fact,” and appear “fanciful,” “fantastic,” or “delusional.” Neitzke v. Williams, 16 490 U.S. 319, 325, 328 (1989). Indeed, plaintiff previously filed complaints with similar 17 allegations in Chinsami v. Silbaugh, No. 2:12-cv-2202-DAD (E.D. Cal.) and Chinsami v. Singh, 18 No. 2:14-cv-461-EFB (E.D. Cal.). The court found those allegations to be frivolous and 19 dismissed the actions pursuant to 28 U.S.C. § 1915A. See Chinsami, No. 2:12-cv-2202-DAD 20 (E.D. Cal. Jul. 22, 2013), ECF No. 12; Chinsami, No. 2:14-cv-461-EFB (E.D. Cal. May 21, 2014) 21 ECF No. 7. 22 Likewise, this action must be dismissed without leave to amend. See Lopez v. Smith, 203 23 F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case law, district courts are only required 24 to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant 25 leave to amend if a complaint lacks merit entirely.”); see also Doe v. United States, 58 F.3d 494, 26 497 (9th Cir. 1995) (“[A] district court should grant leave to amend even if no request to amend 27 2 28 This and subsequent page number citations to plaintiff’s complaint are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by plaintiff. 3 1 the pleading was made, unless it determines that the pleading could not be cured by the allegation 2 of other facts.”). 3 IV. 4 Summary Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted. 6 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 7 accordance with the notice to the California Department of Corrections and Rehabilitation 8 filed concurrently herewith. 9 10 3. This action is dismissed as frivolous and the Clerk is directed to close the case. DATE: May 1, 2017. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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