Roots v. The State of California

Filing 7

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 9/6/2017 ORDERING the Clerk shall randomly assign a district judge to this action and RECOMMENDING this action be dismissed with prejudice because patently frivolous. Assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 days. (Yin, K)

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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 DONALD ROOTS, 12 13 14 15 No. 2:17-cv-1566 AC P Petitioner, v. ORDER and STATE OF CALIFORNIA, FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner incarcerated at the California Medical Facility, who proceeds 18 pro se with a putative petition for writ of habeas corpus filed on July 28, 2017. This action is 19 referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 20 and Local Rule 302(c). 21 This court issued New Case Documents to petitioner on August 1, 2017, ECF No. 2, and, 22 by order filed August 11, 2017, directed petitioner to pay the $5.00 filing fee or submit an 23 application to proceed in forma pauperis, ECF No. 4. See 28 U.S.C. §§ 1914(a); 1915(a). In 24 response, petitioner filed two notices that purport to demonstrate that he is a sovereign citizen 25 without obligation to the government or this court, and thus stands by his alleged right to refuse to 26 comply with the court’s orders. See ECF Nos. 5, 6. 27 28 Review of the document initially filed in this action demonstrates that it is entitled “Writ of Mandamus Privilege,” and is comprised of various pronouncements and asserted delegations of 1 1 personal power. See ECF No. 1. The document asserts no identifiable claim, and is comprised 2 only of random facts and legal pronouncements. See id.; see also ECF No. 3 (supplement). 3 Whether construed as a petition under 28 U.S.C. § 2254, or a civil rights complaint under 42 4 U.S.C. § 1983, the initial filing is clearly frivolous. A claim is legally frivolous when it lacks an 5 arguable basis in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 6 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). 7 This court discerns no grounds upon which to authorize this case to proceed, and finds 8 that amendment would be futile. This action may be dismissed under the screening standards of 9 either Rule 4, Rules Governing Section 2254 Cases (the court must dismiss a habeas petition if it 10 “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 11 relief in the district court”), or 28 U.S.C. § 1915A(b)(1) (the court must dismiss a civil rights 12 complaint that is “frivolous, malicious, or fails to state a claim upon which relief may be 13 granted”). Moreover, petitioner has expressly refused to abide by the court’s orders, which 14 provides an independent ground for dismissal. See Fed. R. Civ. P. 41(b) (authorizing dismissal of 15 an action due, inter alia, to a plaintiff’s failure to comply with a court order); see also Local Rule 16 110 (“Failure of . . . a party to comply with these Rules or with any order of the Court may be 17 grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or 18 within the inherent power of the Court.”). 19 20 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a district judge to this action. 21 22 Further, IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice because patently frivolous. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days 25 after being served with these findings and recommendations, plaintiff may file written objections 26 with the court. Such document should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 28 //// 2 1 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 2 (9th Cir. 1991). 3 DATED: September 6, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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