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)
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/orders.pro se/constable0221.dism.f&rs
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?