(PS) Garcia v. Lopez

Filing 3

FINDINGS and RECOMMENDATIONS TO DISMISS WITH PREJUDICE signed by Magistrate Judge Kendall J. Newman on 2/20/2020 RECOMMENDING that Plaintiff's Complaint 1 be dismissed with prejudice. Plaintiff's Motion to proceed in forma pauperis 2 be denied as moot; The Clerk of Court be directed to close this case. These Findings and Recommendations are submitted to U.S. District Judge Kimberly J. Mueller. Objections to these F&Rs due within fourteen days.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEPHEN THUNDAR GARCIA,

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Plaintiff,

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v.

No. 2:20–cv–249–KJM–KJN (PS)
FINDINGS AND RECOMMENDATIONS TO
DISMISS WITH PREJUDICE
(ECF Nos. 1, 2)

OSWALDO LOPEZ,

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Defendant.

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Plaintiff, who proceeds in this action without counsel, has requested leave to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Pursuant to 28 U.S.C. § 1915, the

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Court is directed to dismiss the case at any time if it determines that the allegation of poverty is

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untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be

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granted, or seeks monetary relief against an immune defendant.
For the reasons discussed below, the Court concludes that Plaintiff’s Complaint fails to

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state a claim on which relief may be granted, and that further leave to amend would be futile. As

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such, the Court recommends that the action be dismissed with prejudice and that Plaintiff’s

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application to proceed in forma pauperis be denied as moot.

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This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C.
§ 636(b)(1).
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Legal Standard

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.
To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v.

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Allain, 478 U.S. 265, 283 (1986).

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At the same time, pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S.

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519, 520-21 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff

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proceeding in forma pauperis is ordinarily entitled to notice and an opportunity to amend before

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dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) superseded on other grounds

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by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc); Franklin v.

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Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). Nevertheless, leave to amend need not be granted

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when further amendment would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339

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(9th Cir. 1996).

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Analysis

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Here, Plaintiff’s Complaint is largely unintelligible. (ECF No. 1.) He appears to allege

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that Defendant Lopez, a “Sac. City Hall payroll clerk,” failed to pay him “a lot money because

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my fellow soldiers sole checks and never returned any to me.” (Id. at 2–3.) Plaintiff also appears

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to allege that some form of contract exists between the F.B.I., a tax county judge, and this court.

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(Id. at p. 4.) These allegations, such as the Court understands them, are legally frivolous,

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implausible on their face, and lack any indication they are grounded in reality. While the Court is

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sympathetic to Plaintiff’s plight, such allegations simply lack an arguable basis in fact. See

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Neitzke, 490 U.S. at 325; Franklin, 745 F.2d at 1227–28. Ordinarily, the court liberally grants a

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pro se plaintiff leave to amend. However, because the record here shows that Plaintiff would be

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unable to cure the above-mentioned deficiencies through further amendment of the Complaint,

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the court concludes that granting leave to amend would be futile. Cahill, 80 F.3d at 339.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s Complaint (ECF No. 1) be DISMISSED WITH PREJUDICE;

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2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT;

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3. 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 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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Dated: February 20, 2020

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