Jember v. County of Santa Clara et al

Filing 15


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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ASCHILEW JEMBER, 8 Plaintiff, 9 10 United States District Court Northern District of California 11 v. COUNTY OF SANTA CLARA, et al., Defendants. 12 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] 13 14 Case No. 17-cv-03883-BLF Before the Court is Magistrate Judge Howard R. Lloyd’s Report and Recommendation 15 (“R&R”) that the Court dismiss Plaintiff Aschilew Jember’s complaint with leave to amend and 16 deny his application to proceed in forma pauperis (“IFP”) without prejudice. ECF 12. The R&R 17 was served on plaintiff by mail on July 14, 2017. ECF 12-1. Jember timely filed an objection to 18 the R&R on July 18, 2017. Obj., ECF 14. 19 20 21 22 23 24 25 26 27 28 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 1 Jember’s application to proceed IFP without prejudice. Jember may resubmit a completed 2 application to proceed IFP on or before August 15, 2017. 3 As to the substance of Jember’s objection, rather than contradicting Judge Lloyd’s 4 conclusion, the objection serves to strengthen the bases for dismissing the complaint. The in 5 forma pauperis statute, 28 U.S.C. § 1915 accords judges “not only the authority to dismiss a claim 6 based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the 7 complaint’s factual allegations and dismiss those claims whose factual contentions are clearly 8 baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke v. Williams, 490 U.S. 9 319, 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; 11 United States District Court Northern District of California 10 see also Andrews v. King, 398 F.3d 1118 (9th Cir. 2005) (a case “is frivolous if it is ‘of little 12 weight or importance: having no basis in law or fact.’”). Even a complaint that is not actually 13 delusional, but does not state enough facts to state a claim to relief that is plausible on its face, is 14 deficient. See Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The Court agrees with Judge 15 Lloyd’s conclusion that Jember’s allegations that he was forcibly injected with infectious diseases 16 and euthanasia drugs, among others, fail to state facts to present a claim to relief that is plausible 17 on its face. 18 In light of the foregoing, Plaintiff’s application to proceed IFP is TERMINATED 19 WITHOUT PREJUDICE and the complaint is DISMISSED WITH LEAVE TO AMEND so that 20 Plaintiff may assert claim(s) upon which relief may be granted. Plaintiff may either file an 21 amended complaint and a renewed application to proceed IFP, or pay the filing fee, on or before 22 August 15, 2017. 23 If Plaintiff chooses to file an amended complaint, this complaint shall comply with Rule 24 8(a)’s requirement of a “short and plain” statement of the claim and the facts showing that Plaintiff 25 is entitled to relief. Plaintiff shall specifically identify the legal and factual basis for each cause of 26 action. Further, he shall identify which causes of action are brought against which defendants, and 27 provide a specific statement of how each named defendant is involved in the facts giving rise to 28 that cause of action. 2 1 2 3 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. 4 5 6 7 Dated: July 19, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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