Khamo v. FBI et al

Filing 4

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/5/17 ORDERING that the complaint, ECF No. 1 , is DISMISSED without leave to amend for failure to state a cognizable claim that cannot be cured by amendment. Plaintiff 's request to proceed in forma pauperis, ECF No. 2 , is DENIED as moot. The Clerk of Court is directly to randomly assign a district judge to this action. It is RECOMMENDED that this action be dismissed with prejudice; and the Clerk of Court be directed to close this case. Randomly assigned and referred to Judge John A. Mendez; Objections to F&R due within 21 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FABIAN KHAMO,

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Plaintiff,

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No. 2:16-cv-3045 AC P

v.

ORDER and

FBI, et al.,

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FINDINGS AND RECOMMENDATIONS
Defendants.

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I.

Introduction

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Plaintiff is a state prisoner proceeding pro se with a putative civil rights complaint and a

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request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff is presently

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incarcerated that the California Health Care Facility in Stockton. This action is referred to the

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undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

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302(c).

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For the reasons that follow, this order dismisses plaintiff’s complaint for failure to state a

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cognizable claim, denies plaintiff’s request to proceed in forma pauperis, and recommends that

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this action be dismissed with prejudice.

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II.

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This court is required to screen complaints brought by prisoners seeking relief against a

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Legal Standards for Screening Plaintiff’s Complaint

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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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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III.

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In his complaint, plaintiff alleges that he is being subjected to “sensory interrogation,”

Screening of Plaintiff’s Complaint

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“remote interrogation,” and “high technology brain washing” that includes voices emanating from

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the air vents. Plaintiff contends that the voices force him to do things he doesn’t want to do. He

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contends that his nerves are being pinched by remote control, causing him sudden pains,

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increased heart rate and respiratory problems. The defendants named in the complaint include the

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“FBI, NSA, CIA, Secret Service, Federal Government and Linked In.Com.” ECF No. 1 at 1.
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Additional defendants include “Seal Team Six” and FBI Director Comey, the President and First

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Family. ECF No. 1 at 2-3, 9. Plaintiff asserts that he knows “it’s CDCR in conjunction with the

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CIA/NSA/FBI/ and Department of Homeland Security” because it started “in CSP-Sacramento

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[then] followed me to CCI-Tehachapi then to CSP-Lancaster and now California Health Care

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Facility.” Id. at 14. Plaintiff contends that other inmates have had similar experiences, and that

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these problems began when a laptop was stolen from a CDCR employee. Plaintiff seeks an order

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of this court directing defendants to cease and desist their challenged activities, and to

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recompense plaintiff 100 million dollars for his suffering.

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The undersigned finds plaintiff’s alleged facts to be speculative and lacking credibility,

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and finds that they fail to state a cognizable legal claim. A claim is legally frivolous when it lacks

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an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989)

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(authorizing dismissal of claims premised on clearly baseless factual contentions or indisputably

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meritless legal theories); see also Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).

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Additionally, absent an express waiver not apparent here, the federal defendants are immune from

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suit. See e.g. United States v. Mitchell, 445 U.S. 535, 538 (1980). The Prison Litigation Reform

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Act requires dismissal of a prisoner complaint that is legally frivolous, see 28 U.S.C. § 1915A(1),

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or seeks monetary relief from defendants who are immune from suit, see 28 U.S.C. § 1915A(2).

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The undersigned further finds that amendment of the complaint would be futile. Noll, 809

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F.2d at 1448. The court is persuaded that plaintiff is unable to allege any facts, based upon the

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circumstances he challenges, that would state a cognizable federal claim. “A district court may

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deny leave to amend when amendment would be futile.” Hartmann v.CDCR, 707 F.3d 1114,

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1130 (9th Cir. 2013); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Courts are

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not required to grant leave to amend if a complaint lacks merit entirely.”).

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Due to the dismissal of the complaint without leave to amend, the court will deny as moot

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plaintiff’s request to proceed in forma pauperis. However, plaintiff is informed that, under the

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“three strikes” provision of the Prison Litigation Reform Act, if three or more of his federal cases

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are dismissed as frivolous, malicious or for failure to state a claim, he will be barred from

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obtaining in forma pauperis status in a new case absent a showing that he was “under imminent
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danger of serious physical injury” at the time he filed his complaint. See 28 U.S.C. § 1915(g).

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. The complaint, ECF No. 1, is dismissed without leave to amend for failure to state a

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cognizable claim that cannot be cured by amendment.

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2. Plaintiff’s request to proceed in forma pauperis, ECF No. 2, is denied as moot.

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3. The Clerk of Court is directly to randomly assign a district judge to this action.

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Further, IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed with prejudice; and

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

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These findings and recommendations are submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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DATED: January 5, 2017

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