Blacksher v. Trump et al

Filing 4

ORDER Dismissing Civil Action Pursuant to 28 U.S.C. 1915A(b)(1), Denying Leave to Proceed In Forma Pauperis, and Denying Motion to Appoint Counsel as Moot [Doc. No. #2 ]. Signed by Judge Michael M. Anello on 2/16/2021. (All non-registered users served via U.S. Mail Service) (tcf) (jms).

Case 3:21-cv-00206-MMA-MDD Document 4 Filed 02/16/21 PageID.13 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DONALD RAY BLACKSHER, II,
CDCR #AV-1847,
Plaintiff,
v.
DONALD J. TRUMP; GAVIN
NEWSOM; ALL CDCR MENTAL AND
MEDICAL HEALTH; ALL LAW
ENFORCEMENT AGENCIES,
Defendants.

Case No.: 3:21-cv-0206-MMA-MDD
ORDER DISMISSING CIVIL
ACTION PURSUANT TO 28 U.S.C.
§ 1915A(b)(1), DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS,
AND DENYING MOTION TO
APPOINT COUNSEL AS MOOT
[Doc. No. 2]

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Plaintiff Donald Ray Blacksher, II, a California inmate currently incarcerated at the

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Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and

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proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See

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Doc. No. 1. Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to

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commence a civil action when he filed his complaint; instead, he has filed a copy of his

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inmate trust account statement which the Court liberally construes to be a request for

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

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No. 3. In addition, Plaintiff has filed a motion to appoint counsel. See Doc. No. 2.
3:21-cv-0206-MMA-MDD

Case 3:21-cv-00206-MMA-MDD Document 4 Filed 02/16/21 PageID.14 Page 2 of 3

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I.

Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)
The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, obligates the

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Court 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

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the terms or conditions of parole, probation, pretrial release, or diversionary program,”

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“as soon as practicable after docketing” and regardless of whether the prisoner prepays

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filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). Pursuant to this

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provision of the PLRA, the Court is required to review prisoner complaints which “seek[]

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redress from a governmental entity or officer or employee of a government entity,” and to

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dismiss those, or any portion of those, which are “frivolous, malicious, or fail[] to state a

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claim upon which relief may be granted,” or which “seek monetary relief from a

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defendant who is immune.” 28 U.S.C. § 1915A(b)(1)-(2); Resnick v. Hayes, 213 F.3d

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443, 446-47 (9th Cir. 2000); Hamilton v. Brown, 630 F.3d 889, 892 n.3 (9th Cir. 2011).

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“The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits need

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not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th

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Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

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2012)).

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The Court finds Plaintiff’s entire complaint is patently frivolous. There are no

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coherent factual allegations contained within the complaint. A pleading is “factual[ly]

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frivolous[]” if “the facts alleged rise to the level of the irrational or the wholly incredible,

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whether or not there are judicially noticeable facts available to contradict them.” Denton

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v. Hernandez, 504 U.S. 25, 25-26 (1992).

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“[A] complaint, containing as it does both factual allegations and legal

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conclusions, is frivolous where it lacks an arguable basis either in law or in fact. . . .

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[The] term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable

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legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S.

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319, 325 (1989). When determining whether a complaint is frivolous, the court need not

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accept the allegations as true, but must “pierce the veil of the complaint’s factual
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allegations,” id. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or]

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‘delusional,’” Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 328).

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Here, the Court finds that Plaintiff’s claims “rise to the level of the irrational or the

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wholly incredible,” Denton, 504 U.S. at 33, and as such, his Complaint requires dismissal

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as frivolous and without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1127 n.8

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(9th Cir. 2000) (en banc) (noting that if a claim is classified as frivolous, “there is by

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definition no merit to the underlying action and so no reason to grant leave to amend.”).

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II.

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Conclusion and Order
Good cause appearing, the Court:
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and without leave to amend;
2.

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DISMISSES Plaintiff’s complaint as frivolous pursuant to 28 U.S.C. § 1915A
DENIES AS MOOT Plaintiff’s request for leave to proceed IFP and motion
to appoint counsel (Doc. Nos. 2, 3);

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CERTIFIES that an IFP appeal from this Order would also be frivolous and

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therefore, could not be taken in good faith pursuant to 28 U.S.C.

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§ 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962);

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Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is

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

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and,

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4.

DIRECTS the Clerk of Court to enter judgment accordingly and close the
case.

IT IS SO ORDERED.
DATE: February 16, 2021

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HON. MICHAEL M. ANELLO
United States District Judge

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