Busto v. Everything et al

Filing 4

Order for Reassignment to District Judge; REPORT AND RECOMMENDATIONS re 1 Complaint; Order granting 2 MOTION for Leave to Proceed in forma pauperis filed by C. M. Busto. Objections due by 5/17/2021.Signed by Judge Virginia K. DeMarchi on 4/26/2021. (vkdlc1S, COURT STAFF) (Filed on 4/26/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 C. M. BUSTO, Plaintiff, 9 10 United States District Court Northern District of California 11 12 Case No. 21-cv-02837-VKD ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS v. EVERYTHING, et al., Defendants. ORDER FOR REASSIGNMENT TO DISTRICT JUDGE; REPORT AND RECOMMENDATION RE DISMISSAL Re: Dkt. Nos. 1, 2 13 14 15 Presently before the Court is Chad Michael Busto’s application to proceed in forma 16 pauperis (“IFP”). A court may authorize the commencement of a civil action IFP if the court is 17 satisfied that the would-be litigant cannot pay the filing fees necessary to pursue the action. 18 28 U.S.C § 1915(a)(1). In evaluating an IFP application, the court should “gran[t] or den[y] IFP 19 status based on the applicant’s financial resources alone and then independently determin[e] 20 whether to dismiss the complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 21 F.2d 1221, 1226–27 n.5 (9th Cir. 1984), abrogated on other grounds by Neitzke v. Williams, 490 22 U.S. 319 (1989). A court may dismiss a case filed without the payment of the filing fee whenever 23 it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief 24 may be granted; or (iii) seeks monetary relief against a defendant who is immune from such 25 relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). 26 While Mr. Busto’s IFP application indicates that he has “Infinite” income from every 27 resource listed on the form, Mr. Busto also notes he possesses “An Infinite Amount of . . . Debt + 28 Expenses.” Dkt. No. 2. This Court grants Mr. Busto’s IFP application, but that does not mean 1 that he may proceed with this action. For the reasons discussed below, this Court recommends 2 that Mr. Busto’s complaint be dismissed. 3 Mr. Busto’s complaint indicates that he seeks to sue “Everything, Existence, Reality, Life, 4 The Universe, The Milky Way Galaxy, The Solar System, Planet Earth/United Nations, Interpol, 5 America/Joe Biden + Kamala Harris, All States/Minnesota, F.B.I., Minnesota/Governor/State 6 Troopers, Hennepin County Sheriff’s Office, Minneapolis City Hall/Mayor, Minneapolis Police 7 Dept., Every Tax Paying Citizen in America + People who were present at the scene!” for 8 “Identity Fraud, “False Claims,” “Predication upon Deception,” “Misdemeanor Conspiracy to 9 Commit Cover-up of the Murder of George Floyd by Reality.” Dkt. No. 1 at 1–2, ECF p.15. The complaint asserts that the Minneapolis Chief of Police, the Minneapolis Police Department, the 11 United States District Court Northern District of California 10 Minneapolis Mayor, all American taxpayers, and all of Congress and “Presidential things” are 12 equally responsible for George Floyd’s death. Id. at ECF pp. 6–13. Mr. Busto takes issue with the 13 criminal justice system: “Because all of us are everything + everyone, every current conviction, 14 unless it convicts all 331 million of us for what America does, we convict fraudulently, unlawfully 15 + unconstitutionally. Every inmate currently incarcerated is so under the guise of deception that 16 they were only one human when they are all reality itself, and are all around and in us.” Id. at 17 ECF p.10. 18 The complaint’s rambling and disparate allegations do not state a legally coherent theory 19 of liability. Although Mr. Busto points out that the Southern District of Texas granted his IFP 20 application in another action, id. at ECF p.13, that does not change this Court’s conclusion that 21 Mr. Busto’s present complaint does not allege facts demonstrating that he has a cognizable claim 22 for relief and that the complaint should be dismissed. Absent consent, however, a magistrate 23 judge has no authority to issue a dispositive order. 28 U.S.C. § 636; Williams v. King, 875 F.3d 24 500 (9th Cir. 2017). Ordinarily, the Court would recommend dismissal with leave to amend. 25 However, the allegations of the complaint demonstrate that this action is frivolous. Therefore, this 26 case shall be reassigned to a District Judge with the recommendation that the complaint be 27 dismissed without leave to amend. 28 Mr. Busto may file an objection to this Report and Recommendation. Fed. R. Civ. P. 72. 2 1 In view of the current COVID-19 public health emergency, this Court extends the deadline for 2 submitting objections to May 17, 2021. 3 IT IS SO ORDERED. 4 Dated: April 26, 2021 5 6 VIRGINIA K. DEMARCHI United States Magistrate Judge 7 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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