In re: Angel L. Alvarado
Filing
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DISMISSAL ORDER PURSUANT TO 28 U.S.C. §§ 1915(e)(2), 1915(A)(b)(1) re 9 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/7/2014. "(1) The second amended Complaint and this action are DISMISSED as frivolous and for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1). This dismissal is with prejudice and without further leave to amend." (2) The Clerk is DIRECTED to note on the docket that this action was termin ated pursuant to 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1), and to enter judgment." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Angel L. Alvarado served by first class mail at the address of record on November 7, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IN RE: ANGEL L. ALVARADO,
N.Y. I.D. #93A8360,
Plaintiff/Petitioner,
____________________________
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CIV. NO. 14-00394 SOM/RLP
DISMISSAL ORDER PURSUANT TO 28
U.S.C. §§ 1915(e)(2),
1915(A)(b)(1)
DISMISSAL ORDER PURSUANT TO 28 U.S.C. §§ 1915(e)(2),1915(A)(b)(1)
Before the court is pro se Plaintiff Angel L.
Alvarado’s second amended pleading.
Doc. No. 9.
Plaintiff is a
New York state prisoner incarcerated at the Green Haven
Correctional Facility, located in Stormville, New York.1
This
action is DISMISSED with prejudice as frivolous and for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915(A)(b)(1).
I.
BACKGROUND
Plaintiff commenced this action on September 3, 2014,
by submitting a nearly incomprehensible pleading that was
liberally construed as a prisoner civil rights complaint.
Doc. No. 1.
See
On September 29, 2014, the court screened and
dismissed Plaintiff’s Complaint for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), with leave
1
The New York Department of Corrections and Community
Supervision’s public records show that Angel L. Alvarado, N.Y.
I.D. #93-A-8360, was committed at Green Haven on November 5,
1993, for a maximum term of thirty years. See
http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ1/WINQ000 (last
visited Oct. 14, 2014).
to amend.
Doc. No. 5.
The court explained the deficiencies in
the Complaint and sent Plaintiff a blank prisoner civil rights
complaint form, blank petition for writ of habeas corpus form,
and an in forma pauperis application to enable him to amend his
pleading.
On October 10, 2014, Plaintiff submitted a barely
coherent pleading that the court construed as his first amended
Complaint.
See Doc. No. 6.
pauperis application.
form.
Id.
Plaintiff also submitted an in forma
Neither was on a District of Hawaii
Plaintiff’s in forma pauperis application was denied as
incomplete.
See Doc. No. 8 at PageID #32.
Plaintiff’s first
amended Complaint was dismissed for failure to state a claim on
October 16, 2014, with leave to amend by October 31, 2014. Id.
The Clerk of Court again sent Plaintiff blank forms.
On October 31, 2014, Plaintiff submitted a second
amended Complaint.
Doc. No. 9.
Plaintiff appears to be trying
to address the court’s two earlier deficiency orders, but this
pleading is no more comprehensible than the first two.
entirety, it states:
Civil 14-00394 - Som-Rlp
Deficiencies, Orders and
applications
Dear:
Judge,
Chief, U.S. District
Susan Mollway,
Subject: Equal authority in granting
procedural vesting applications and orders to
2
In its
promote constitutional equal protections of
the law across state(s)
Constitutional grounds on proceedings
(1) That an entreaty on Legislative
Authorities Committee(s)vested be
procedurally accepted and ordered under a
deficiency order,
(2) So that a legitimate interest is that in
keeping a fire-arm under a vested equal
authority wherein a file#2014-PL-6469 is for
wherein He/She maybe prosecuted in a Court of
the United States for permitting and/or
licensing - while in a commission across
State(s) that the records - being archived
for academic discipline, retrieval(s) and the
defense of the country are constitutional
grounds on proceedings for keeping an arm in
the state of Hawaii,
(3) That as a Public member herein an
advocacy strategy to - promote a systemic
improvement is being practiced for a - right
of the people to keep and bear arms under
equal - protection of the laws on both states
and the vested[.]
May the court deem this appropriate before
the honors,
Executive Clemencies/Discretionary Authority,
[signed and dated]
Id.
Plaintiff did not submit an in forma pauperis application or
pay the civil filing fee.
II. STATUTORY SCREENING
Federal courts must screen all cases in which prisoners
seek redress from governmental entities, officers, or employees
or seek to proceed without prepayment of civil filing fees.
3
See
28 U.S.C. §§ 1915(b)(2) and 1915(A)(a).
The court must identify
cognizable claims, and dismiss claims that are frivolous,
malicious, fail to state a claim for relief, or seek monetary
relief from defendants who are immune from such relief.
Id.
A
complaint is “frivolous” if it has no basis in law or fact.
Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013).
A complaint
fails to state a claim if it does not “plead a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).
Pro se complaints must be construed liberally, with all
allegations of material fact accepted as true and construed in
the light most favorable to the plaintiff.
F.3d 443, 447 (9th Cir. 2000).
Resnick v. Hayes, 213
Leave to amend should be granted
if it is possible the plaintiff can correct the complaint’s
defects.
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
III.
DISCUSSION
To state a claim, a pleading must “simply give the
defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”
Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512 (2002); see also Fed. R. Civ. P. 8(a).
Detailed
factual allegations are not required, but “[t]hreadbare recitals
of the elements of the cause of action, supported by mere
conclusory statements, do not suffice.”
4
Iqbal, 556 U.S. at 678.
A complaint “must set forth sufficient factual matter accepted as
true, to ‘state a claim that is plausible on its face.’”
Id.
At
a minimum, a plaintiff must detail what his claims are, when they
occurred, and who is allegedly responsible.
Plaintiff’s second amended Complaint fails to name any
defendants, alleges no discernible claims, asserts no basis for
venue in the District of Hawaii, and sets forth no demand for
relief.
As with his original and first amended Complaints, this
pleading is again simply a string of words and conclusory
sentences with no connection or rational meaning.
Plaintiff
fails to state any cause of action, and his incoherent statements
are insufficient for the court to infer that Plaintiff has
suffered a constitutional wrong that is redressable in Hawaii.
Plaintiff has been incarcerated at the Green Haven Correctional
Facility since on or about November 5, 1993.
Common sense does
not support a finding that unnamed defendants in Hawaii violated
Plaintiff’s civil rights (possibly under the Second Amendment),
while he has been incarcerated in New York for the past thirty
years.
Moreover, claims lacking any factual basis are
frivolous.
See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Sections 1915A and 1915(e)(2) allow judges to “pierce the veil”
of a complaint’s factual allegations and dismiss as frivolous
those claims whose factual contentions are clearly baseless.
5
See
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
When doing so, the
court is not bound to accept without question the truth of a
plaintiff’s allegations.
See id.
A finding of factual
frivolousness is appropriate when the facts alleged rise to the
level of the irrational or the wholly incredible, whether or not
there are judicially noticeable facts available to contradict
them.
See id. at 32–33.
Plaintiff’s allegations, when viewed in
the light of his incarceration in New York for the past three
decades, are incredible.
As the Ninth Circuit has stated, “[w]hen a litigant
knowingly and repeatedly refuses to conform his pleadings to the
requirements of the Federal Rules, it is reasonable to conclude
that the litigant simply cannot state a claim.”
Knapp v. Hogan,
738 F.3d 1106, 1110 (9th Cir. 2013), citing Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011) (stating that if a plaintiff is
given, but fails, to take advantage of leave to amend, “the judge
[is] left with [ ] a complaint that, being irremediably
unintelligible, [gives] rise to an inference that the plaintiff
could not state a claim”).
Plaintiff’s second amended Complaint,
Doc. No. 9, is DISMISSED as frivolous and for failure to state a
claim.
Amendment appears futile, and this dismissal is with
prejudice.
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IV. 28 U.S.C. § 1915(g)
Plaintiff is notified that this dismissal may later
count as a “strike” under the “3–strikes” provision of 28 U.S.C.
§ 1915(g).
See Knapp, 738 F.3d at 1108-09 (holding “dismissals
following the repeated violation of Rule 8(a)’s ‘short and plain
statement’ requirement, following leave to amend, are dismissals
for failure to state a claim under § 1915(g)”).
V.
(1)
CONCLUSION
The second amended Complaint and this action are
DISMISSED as frivolous and for failure to state a claim.
U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).
See 28
This dismissal is with
prejudice and without further leave to amend.
(2)
The Clerk is DIRECTED to note on the docket that this
action was terminated pursuant to 28 U.S.C. § 1915(e)(2)(b) &
1915A(b)(1), and to enter judgment.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 7, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
In RE: Alvarado, 1:14-cv-00394 SOM/RLP; scrg 2014; Alvarado 14-394 som (dsm SAC and
action ftsc and friv)
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