Constable v. Newell et al

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/15/2018 RECOMMENDING that the 2 Motion to Proceed in Forma Pauperis be DENIED; the 4 Amended Complaint be DISMISSED; and that this action be dismissed. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Washington, S)

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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 RUSSELL CONSTABLE, 12 Plaintiff, 13 14 No. 2:18-cv-0221 JAM DB PS v. FINDINGS AND RECOMMENDATIONS CLIFFORD NEWELL, et al., 15 Defendants. 16 Plaintiff, Russell Constable, is proceeding in this action pro se. This matter was referred 17 18 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the court are plaintiff’s amended complaint and motion to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. (ECF Nos. 2 & 4.) Therein, plaintiff complains generally about 21 the right “to use the United States roads and high ways (sic) when NOT IN COMMERSE (sic)[.]” 22 (Am. Compl. (ECF No. 4) at 4.) The court is required to screen complaints brought by parties proceeding in forma 23 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s amended complaint is deficient. Accordingly, for the reasons 26 stated below, the undersigned recommends that plaintiff’s amended complaint be dismissed 27 without leave to amend. 28 //// 1 1 2 I. Plaintiff’s Application to Proceed In Forma Pauperis Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 2 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. 7 8 9 10 Fed. R. Civ. P. 8(a). II. Plaintiff’s Complaint 11 A. Rule 8 12 Here, as was true of the original complaint, plaintiff’s amended complaint fails to contain 13 a short and plain statement of a claim showing that plaintiff is entitled to relief. See ECF No. 3. 14 In this regard, the amended complaint fails to state a claim or allege a fact in support of a claim. 15 Instead, the amended complaint asserts: 16 17 18 19 20 I am not asking for any money, any reversal or anything else other than does the “California vehicle code 17460”, mean that I gave my “rights”, to use the United States roads and high ways (sic) when NOT IN COMMERSE (sic), which I believe all the cases referred to from this court were FOR COMMERCIAL USE. (Am. Compl. (ECF No. 4) at 8.) As plaintiff was previously advised, although the Federal Rules of Civil Procedure adopt a 21 flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff’s claims 22 and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 23 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading 24 that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of cause of action 25 will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further 26 factual enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. 27 at 555, 557). A plaintiff must allege with at least some degree of particularity overt acts which 28 the defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 3 The amended complaint also asserts that the “California Vehicle Code is not law.” (Am. 1 2 Compl. (ECF No. 4) at 3.) However, the Supreme Court has made clear: 3 The use of the public highways by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process. 4 5 6 7 Reitz v. Mealey, 314 U.S. 33, 36 (1941), overruled in part on other grounds by Perez v. 8 Campbell, 402 U.S. 637 (1971). There is no disputing that a state may impose licensing 9 requirements upon drivers. 10 In the absence of national legislation covering the subject, a state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles,-those moving in interstate commerce as well as others. And to this end it may require the registration of such vehicles and the licensing of their drivers, charging therefor reasonable fees graduated according to the horse-power of the engines,-a practical measure of size, speed, and difficulty of control. This is but an exercise of the police power uniformly recognized as belonging to the states and essential to the preservation of the health, safety, and comfort of their citizens; and it does not constitute a direct and material burden on interstate commerce. 11 12 13 14 15 16 17 Hendrick v. State of Maryland, 235 U.S. 610, 622 (1915). 18 B. Frivolousness 19 “[T]he in forma pauperis statute . . . ‘accords judges not only the authority to dismiss a 20 claim based on an indisputably meritless legal theory, but also the unusual power to pierce the 21 veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are 22 clearly baseless.’” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke, 490 U.S. at 23 327). “Examples of the latter class are claims describing fantastic or delusional scenarios, claims 24 with which federal district judges are all too familiar.” Neitzke, 490 U.S. at 328. 25 //// 26 //// 27 //// 28 //// 4 1 Here, the amended complaint alleges: 2 On Feb. 1, 2018, in the peasants of thirteenth juror Paige Carnahan was not able to Purdue a valid bar card. At which time the judge remove the juries, and went on the internet to the state bar page witch showed that Carnahan was ensued a bar card the card was not valid as prescribed by Fed. Reg and reflection in the state of CALIFORNIA BUSINESS AND PROFESSION CODE 6067, Oath. 3 4 5 6 (Am. Compl. (ECF No. 4) at 2.) 7 The amended complaint goes on to alleges that: 8 There is a secret brotherhood of Attorneys that have deliberately refrained from swearing an Oath to uphold the Constitution of the United States in order to infiltrate our Courts an judicial System and undermine the Constitution of the United States. They apparently have done this so they can undermine the confidence of the public at large. As an unsuspecting public by violating their Constitutionally Protected Rights. [A fed attorney Lisa Page confirmed this brotherhood]. 9 10 11 12 13 (Id. at 3.) 14 In this regard, not only does the amended complaint fail to state a claim, but the amended 15 complaint’s allegations are also delusional and frivolous. See Denton, 504 U.S. at 33 (“a finding 16 of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or 17 the wholly incredible, whether or not there are judicially noticeable facts available to contradict 18 them”). 19 III. 20 Leave to Amend For the reasons stated above, plaintiff’s amended complaint should be dismissed. The 21 undersigned has carefully considered whether plaintiff may further amend the complaint to state a 22 claim upon which relief can be granted. “Valid reasons for denying leave to amend include 23 undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 24 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath 25 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 26 be freely given, the court does not have to allow futile amendments). 27 28 Here, given the defects noted above and plaintiff’s inability to successfully amend the complaint, the undersigned finds that granting plaintiff further leave to amend would be futile. 5 1 CONCLUSION 2 Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiff’s January 31, 2018 application to proceed in forma pauperis (ECF No. 2) be 4 5 6 denied; 2. Plaintiff’s June 4, 2018 amended complaint (ECF No. 4) be dismissed without prejudice; and 7 3. This action be dismissed. 8 These findings and recommendations will be submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 10 days after being served with these findings and recommendations, plaintiffs may file written 11 objections with the court. A document containing objections should be titled “Objections to 12 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 objections within the specified time may, under certain circumstances, waive the right to appeal 14 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: October 15, 2018 16 17 18 19 20 21 DLB:6 DB/orders/ se/constable0221.dism.f&rs 22 23 24 25 26 27 28 6

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