Jember v. County of Santa Clara et al

Filing 15

ORDER ADOPTING 12 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DISMISSING CASE WITH LEAVE TO AMEND, AND TERMINATING 7 APPLICATION TO PROCEED IN FORMA PAUPERIS WITHOUT PREJUDICE. Signed by Judge Beth Labson Freeman on 7/19/2017. (blflc2S, COURT STAFF) (Filed on 7/19/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ASCHILEW JEMBER,

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Plaintiff,

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United States District Court
Northern District of California

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v.
COUNTY OF SANTA CLARA, et al.,
Defendants.

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ORDER ADOPTING MAGISTRATE
JUDGE'S REPORT AND
RECOMMENDATION, DISMISSING
CASE WITH LEAVE TO AMEND, AND
TERMINATING APPLICATION TO
PROCEED IN FORMA PAUPERIS
WITHOUT PREJUDICE
[Re: ECF 12]

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Case No. 17-cv-03883-BLF

Before the Court is Magistrate Judge Howard R. Lloyd’s Report and Recommendation

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(“R&R”) that the Court dismiss Plaintiff Aschilew Jember’s complaint with leave to amend and

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deny his application to proceed in forma pauperis (“IFP”) without prejudice. ECF 12. The R&R

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was served on plaintiff by mail on July 14, 2017. ECF 12-1. Jember timely filed an objection to

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the R&R on July 18, 2017. Obj., ECF 14.

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In his objection, Jember summarizes his claim as follows:
As a matter laws, rules and constitutions, no body has any right to
touch some one let alone inject 120 days 252,000,000,000 mgs of
death drugs and poison drugs criminally. The copy of the bare foot
murder guns 5150 and 5250 are attached for evidence which itself is
more than enough to support all causes of action for litigations.
Plaintiff had claimed all defendants as face masked murderers and
Color Team Murderers had robbed all bank accounts
$28,500,000.00 plus cashier checks and assets totaled in an amount
of $6,500,000.00 totaled $35,000,000.00 which had been concealed
criminally. Thus, this alone is more than good enough to support all
claims made on record based 400 pages of undisputed facts.
Id. at 1–2. Jember does not address Judge Lloyd’s finding that his application to proceed IFP is
incomplete. As to the latter, the Court ADOPTS Judge Lloyd’s R&R and TERMINATES

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Jember’s application to proceed IFP without prejudice. Jember may resubmit a completed

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application to proceed IFP on or before August 15, 2017.

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As to the substance of Jember’s objection, rather than contradicting Judge Lloyd’s

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conclusion, the objection serves to strengthen the bases for dismissing the complaint. The in

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forma pauperis statute, 28 U.S.C. § 1915 accords judges “not only the authority to dismiss a claim

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

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complaint’s factual allegations and dismiss those claims whose factual contentions are clearly

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

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319, 327 (1989)). “Examples of the latter class are claims describing fantastic or delusional
scenarios, claims with which federal district judges are all too familiar.” Neitzke, 490 U.S. at 328;

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United States District Court
Northern District of California

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see also Andrews v. King, 398 F.3d 1118 (9th Cir. 2005) (a case “is frivolous if it is ‘of little

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weight or importance: having no basis in law or fact.’”). Even a complaint that is not actually

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delusional, but does not state enough facts to state a claim to relief that is plausible on its face, is

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deficient. See Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The Court agrees with Judge

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Lloyd’s conclusion that Jember’s allegations that he was forcibly injected with infectious diseases

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and euthanasia drugs, among others, fail to state facts to present a claim to relief that is plausible

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on its face.

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In light of the foregoing, Plaintiff’s application to proceed IFP is TERMINATED

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WITHOUT PREJUDICE and the complaint is DISMISSED WITH LEAVE TO AMEND so that

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Plaintiff may assert claim(s) upon which relief may be granted. Plaintiff may either file an

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amended complaint and a renewed application to proceed IFP, or pay the filing fee, on or before

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August 15, 2017.

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If Plaintiff chooses to file an amended complaint, this complaint shall comply with Rule

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8(a)’s requirement of a “short and plain” statement of the claim and the facts showing that Plaintiff

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is entitled to relief. Plaintiff shall specifically identify the legal and factual basis for each cause of

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action. Further, he shall identify which causes of action are brought against which defendants, and

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provide a specific statement of how each named defendant is involved in the facts giving rise to

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that cause of action.
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Failure to meet the deadline to file an amended complaint or failure to cure the deficiencies
identified in this order will result in a dismissal of Plaintiff’s claims with prejudice.
IT IS SO ORDERED.

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Dated: July 19, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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