(PS) Peden, et al., v. Bernard et al

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 5/10/2023 RECOMMENDING that 1 Complaint be dismissed without leave to amend; 2 Motion to Proceed In Forma Pauperis be denied; and this action be closed. Matters referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Perdue, C.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY PEDEN; BRUNO BERRY,

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No. 2:23-cv-0524 TLN DB PS

Plaintiffs,

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v.

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FINDINGS AND RECOMMENDATIONS

GEORGE BERNARD, et al.,

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Defendants.

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Plaintiff Wesley Peden is proceeding in this action pro se. 1 This matter was referred to

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the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending

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before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. (ECF Nos. 1 & 2.) The complaint alleges that the defendants are engaging in

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“threats, intimidation, and harassment[.]” (Compl. (ECF No. 1) at 2.)
The court is required to screen complaints brought by parties proceeding in forma

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pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated

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below, the undersigned will recommend that plaintiff’s complaint be dismissed without leave to

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amend and this action be closed.

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Although the complaint purports to be on behalf of plaintiffs Wesley Peden and Bruno Berry,
only plaintiff Wesley Peden has signed the complaint.
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I.

Plaintiff’s Application to Proceed In Forma Pauperis
Plaintiff Wesley Peden’s in forma pauperis application makes the financial showing

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required by 28 U.S.C. § 1915(a)(1). However, plaintiff Bruno Berry has not filed an in forma

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pauperis application. Filing fees must be paid unless each plaintiff applies for and is granted

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leave to proceed in forma pauperis.

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Moreover, a determination that a plaintiff qualifies financially for in forma pauperis status

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does not complete the inquiry required by the statute. “‘A district court may deny leave to

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proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that

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the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th

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Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see

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also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the

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district court did not abuse its discretion by denying McGee’s request to proceed IFP because it

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appears from the face of the amended complaint that McGee’s action is frivolous or without

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merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court

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to examine any application for leave to proceed in forma pauperis to determine whether the

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proposed proceeding has merit and if it appears that the proceeding is without merit, the court is

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bound to deny a motion seeking leave to proceed in forma pauperis.”).

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The court must dismiss an in forma pauperis case at any time if the allegation of poverty is

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found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a

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claim on which relief may be granted, or seeks monetary relief against an immune defendant. See

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28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or

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in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

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1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous

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where it is based on an indisputably meritless legal theory or where the factual contentions are

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clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court, as explained by Rule 8
of the Federal Rules of Civil Procedure (“Rules”), are as follows:

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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.

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Fed. R. Civ. P. 8(a).

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II.

Plaintiff’s Complaint

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“[T]he in forma pauperis statute . . . ‘accords judges not only the authority to dismiss a

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claim based on an indisputably meritless legal theory, but also the unusual power to pierce the

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veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are

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clearly baseless.’” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke, 490 U.S. at

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327). “Examples of the latter class are claims describing fantastic or delusional scenarios, claims

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with which federal district judges are all too familiar.” Neitzke, 490 U.S. at 328.

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Here, the complaint alleges that the defendants, to whom plaintiff pays monthly rent, are

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threatening plaintiff because plaintiff is “currently working with the Department of Justice, in

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Washington D.C., to provide information, evidence, and intelligence concerning the

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defendants[.]” (Compl. (ECF No. 1) at 1-2.) The defendants are allegedly “working in concert

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with . . . Agents of the Federal Government, and a Federally licensed Non Profit Organization, in

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the commission of numerous Federal Felonies.” (Id. at 1.)

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In this regard, the complaint’s allegations are delusional and frivolous. See Denton, 504
U.S. at 33 (“a finding of factual frivolousness is appropriate when the facts alleged rise to the
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level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts

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available to contradict them”).

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III.

Leave to Amend

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For the reasons stated above, plaintiff’s complaint should be dismissed. The undersigned

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has carefully considered whether plaintiff may amend the complaint to state a claim upon which

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relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,

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prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d

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1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,

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701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the

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court does not have to allow futile amendments).
Here, given the defects noted above, the undersigned finds that granting plaintiff leave to

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amend would be futile.

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CONCLUSION

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Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s March 20, 2023 complaint (ECF No. 1) be dismissed without leave to

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amend;
2. Plaintiff’s March 20, 2023 application to proceed in forma pauperis (ECF No. 2) be

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denied; and

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3. This action be closed.

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These findings and recommendations will be 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)(1). Within fourteen 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. A document containing objections should be titled “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within

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the specified time may, under certain circumstances, waive the right to appeal the District Court’s

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order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 10, 2023

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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DLB:6
DB/orders/orders.pro se/peden0524.dism.f&rs

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