Jordan v. Huff

Filing 2

ORDER: (1) Dismissing Civil Action for Failing to Pay Filing Fees and for Failing to Move in Forma Pauperis; and (2) as Frivolous and Malicious. Moreover, because the Court finds amendment futile, leave to amend is denied. Signed by Judge Roger T. Benitez on 10/20/2011.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IMHOTEP JORDAN, Jr.,
aka JOHN JORDAN, CDCR #C-71742,
Plaintiff,

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vs.
MARILYN L. HUFF,

ORDER:

AND

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Defendant.

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11-2405 BEN (WVG)

(1) DISMISSING CIVIL ACTION
FOR FAILING TO PAY FILING
FEES AND FOR FAILING TO
MOVE IN FORMA PAUPERIS

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Civil No.

(2) AS FRIVOLOUS AND
MALICIOUS PURSUANT
TO 28 U.S.C. § 1915A(b)(1)

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Plaintiff, currently incarcerated at Calipatria State Prison, in Calipatria, California, and

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proceeding pro se, has filed a civil action entitled “Demand for Contractual Oath of Office

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Duties” [ECF No. 1], in which he seeks to sue an Article III Judge for various violations of a

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“contractual oath of office.” 1

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Plaintiff’s Complaint is identical to two others, all filed on the same day, purporting to sue
other Article III Judges and a United States Magistrate Judge of this Court and all asserting the same
frivolous and malicious claims. See also Jordan v. Sammartino, S.D. Cal. Civil Case No. 11-2404 BEN
(WVG); Jordan v. Lewis, S.D. Cal. Civil Case No. 11cv2403 BEN (NLS). A court “‘may take notice
of proceedings in other courts, both within and without the federal judicial system, if those proceedings
have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007)
(quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Plaintiff has not paid the
$350 civil filing fee in any of these, or any prior civil case he has filed in the Southern District, and had
thus far managed to avoid 28 U.S.C. § 1915(g)’s “3-strikes” bar by submitting his complaints
unaccompanied by motions to proceed in forma pauperis. See e.g., Jordan v. Cardenas, S.D. Cal. Civil
-111cv2405 BEN (WVG)

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I.

F AILURE TO P AY F ILING F EE OR R EQUEST IFP S TATUS

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Any party instituting a civil action, suit or proceeding in a district court of the United

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States, other than a writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C.

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§ 1914(a). An action may proceed despite a party’s failure to pay only if the party is granted

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leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v.

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Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th

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Cir. 1999). However, Plaintiff has not prepaid the $350 filing fee required to commence a civil

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action; nor has he submitted a Motion to Proceed IFP. Therefore, the case must be dismissed

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pursuant to 28 U.S.C. § 1914(a).

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II.

I NITIAL S CREENING PER 28 U.S.C. § 1915A(b)

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Pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, the Court

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is obligated to review complaints filed by anyone “incarcerated or detained in any facility who

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is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms

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or conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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practicable after docketing” and regardless of whether the prisoner prepays filing fees or moves

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to proceed IFP. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner

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complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon

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which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47

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(9th Cir. 2000).

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While Plaintiff’s action is practically indecipherable, he apparently seeks to sue a United

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States District Judge demanding that she abide by her “contractual oath of office” which requires

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“defending and support the rights vested to me by the way of the United States Constitution and

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the Constitution of the State of California as a free born living breathing flesh and blood god

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created sovereign sentient being.” (Compl. at 1.)

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A complaint is frivolous “where it lacks an arguable basis either in law or in fact.”

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Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, there is no question that Plaintiff’s suit

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Case No. 11-1152 DMS (NLS); Jordan v. Andersen, S.D. Cal. Civil Case No. 11-1153 IEG (JMA);
Jordan v. Borem, S.D. Cal. Civil Case No. 11-1154 BEN (NLS); Jordan v. Drake, S.D. Cal. Civil Case
No. 11-1155 AJB (MDD); and Jordan v. Coronado, 11-1156 BTM (MDD).
-211cv2405 BEN (WVG)

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lacks any arguable basis in law, and is therefore frivolous under § 1915A(b)(1). And, to the

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extent Plaintiff alleges any facts at all, they appear “fanciful,” “fantastic,” and “delusional” and

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are clearly baseless. Id. at 328. In fact, Plaintiff’s pleading, when considered in light of his

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pattern of frivolous submissions in this district, may further be classified as “malicious” insofar

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as it appears to lack good faith and “suggest[s] an intent to vex the defendants or abuse the

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judicial process.” See Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C. Cir. 1981) (a complaint

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may be inferred to be “malicious” if it suggests an intent to abuse the judicial process by re-

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litigating claims decided in prior cases; or if it threatens violence or contains “disrespectful

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references to the Court”); accord Aston v. Probst, 217 F.3d 844, 844 (9th Cir. 2000) (table

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disposition).

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For these reasons, the Court dismisses the entirety of Plaintiff’s Complaint as frivolous

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and malicious pursuant to 28 U.S.C. § 1915A(b)(1).

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III.

C ONCLUSION AND O RDER

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For the reasons set forth above, the Court hereby:

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(1)

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DISMISSES this action sua sponte without prejudice for failing to pay the $350

filing fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a).

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IT IS FURTHER ORDERED that:

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(2)

Plaintiff’s Complaint is DISMISSED as frivolous and malicious pursuant to 28

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U.S.C. § 1915A(b)(1). Moreover, because the Court finds amendment futile, leave to amend is

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DENIED. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of leave

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to amend is not an abuse of discretion where further amendment would be futile); see also

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Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) (“Since

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plaintiff has not, and cannot, state a claim containing an arguable basis in law, this action should

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be dismissed without leave to amend; any amendment would be futile.”) (citing Newland v.

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Dalton, 81 F.3d 904, 907 (9th Cir. 1996)).

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11cv2405 BEN (WVG)

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(3)

Finally, this Court CERTIFIES that any IFP appeal from this Order would not be

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taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369

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U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant

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is permitted to proceed IFP on appeal only if appeal would not be frivolous).

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(4)

The Clerk of Court shall close the file.

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IT IS SO ORDERED.

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DATED: October 20, 2011

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Hon. Roger T. Benitez
United States District Judge

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11cv2405 BEN (WVG)