Frost v. Asencio et al

Filing 4

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Canny Lewis Frost, FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by Canny Lewis Frost. (), Order Setting: (, Amended Pleadings due by 6/11/2015.) Signed by Magistrate Judge Jeremiah C. Lynch on 5/12/2015. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CANNY LEWIS FROST,

CV 15-43-M-DLC-JCL

Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION

vs.

JOANN ASENCIO, et al.,
Defendants.

I.

INTRODUCTION
Plaintiff Canny Frost, proceeding pro se, filed a Motion to Proceed In

Forma Pauperis. Frost submitted a declaration that makes the showing required by
28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute this
action IT IS HEREBY ORDERED that Frost’s Motion to Proceed In Forma
Pauperis is GRANTED. This action may proceed without prepayment of the
filing fee, and the Clerk of Court is directed to file Frost’s lodged Complaint as of
the filing date of his request to proceed in forma pauperis.
The federal statute under which leave to proceed in forma pauperis is

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permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court will review Frost’s pleading to consider whether this action can
survive dismissal under the provisions of section 1915(e)(2), or any other
provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th
Cir. 2005).
II.

PLAINTIFF’S ALLEGATIONS
Frost’s pleading presents incomprehensible, and seemingly random and

unconnected factual matters or allegations. Frost identifies approximately 15

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different Defendants who have no apparent connection to Frost or with each other.
Frost also makes reference to President John F. Kennedy’s murder, the murder of
“John Stanely”, Abe Lincoln, gold that Defendant Samantha Wadsworth found,
and a “baby rape”. His statement of claims refers in the abstract to “freedom”,
“freedom of speech”, “Grades From Schools”, “God Law”, the bible, and he wrote
incomprehensible phrases like “Dr. Bradley Irig = physical and mental stability”,
and “Grades proof is An overwrite”. For his identified injuries Frost jotted down
phrases such as “medications”, “time to kill time to heal”, “incorrect w/ grades
throughout life”, “without belief in ones self”, “marijuana for queen tax 500.00$ A
bud 5 million A branch”, and he again states “also raped baby/Shawn & Kenneth
Rodda.” Frost’s written statements in his Complaint are wholly incomprehensible.
III.

DISCUSSION
Because Frost is proceeding pro se the Court must construe his pleading

liberally, and the pleading is held “to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See
also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
The court retains discretion in determining whether a complaint is
“frivolous” for purposes of considering whether the pleading fails to state a claim
for relief pursuant to 28 U.S.C. § 1915(e)(2). Denton v. Hernandez, 504 U.S. 25,
33 (1992). A complaint is frivolous if it has “no arguable basis in fact or law.”
Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). See also Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A totally incomprehensible claim or
complaint is without an arguable basis in law. Jackson v. Arizona, 885 F.2d 639,
641 (9th Cir. 1989) (superseded by 28 U.S.C. § 1915(e)(2)(B) on other grounds).
Additionally, the term “frivolous [...] embraces not only the inarguable legal
conclusion, but also the fanciful factual allegation.” Neitzke, 490 U.S. at 325. In
considering whether a pleading is frivolous, the court need not “accept without
question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32. Rather,
the court may “pierce the veil of the complaint’s factual allegations” and consider
whether the allegations are “fanciful,” “fantastic,” or “delusional.” Denton, 504
U.S. at 32-33.
As those words suggest, 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
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contradict them.
Denton, 504 U.S. at 33.
Based on the forgoing legal authority and definitions, the Court finds that
Frots’s allegations and written statements in his Complaint are “frivolous.” The
Court’s summary of his allegations presented above reflects that his claims are
fanciful, delusional, or fantastic. His Complaint presents irrational, illogical, and
unconnected phrases which fail to provide any comprehensible factual basis and,
therefore, are wholly incredible. He presents no plausible underlying factual basis
for his conclusory phrases, and he does not present written statements which could
be construed as pleading a claim for relief. Frost’s disjointed and incoherent
allegations make it impossible for the Court to assess whether any valid legal
claims exist, leaving the Court with no option but to conclude that the allegations,
as pled, are frivolous and subject to dismissal under 28 U.S.C. § 1915(e)(2). See
Hakman v. Kotchick, 129 F.R.D. 432, 433 (N.D.N.Y. 1990) and Dean Reed
Production Corp. v. Los Angeles County Dept. of Children and Family Services,
2006 WL 3734656, *1 (E.D. Cal. 2006).
Additionally, Frost does not include any allegations in his Complaint
establishing that this Court has jurisdiction over any claims he seeks to present. In
federal court, a plaintiff’s pleading must set forth sufficient allegations to invoke
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the jurisdiction of this Court. Fed. R. Civ. P. 8(a)(1).1
Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute[.]... It is to be presumed that a
cause lies outside this limited jurisdiction,... and the burden of establishing
the contrary rests upon the party asserting jurisdiction[.]
Kokkonen v. Guardian Life Ins. of America, 511 U.S. 375, 377 (1994) (citations
omitted). A plaintiff bears the burden to establish jurisdiction. Farmers Ins. Ex. v.
Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). Absent
jurisdiction, a case is subject to dismissal. Fed. R. Civ. P. 12(h)(3).
Furthermore, the federal courts are obligated to independently examine their
own jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). And
a district court may dismiss an action sua sponte whenever it appears that
jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3); Fiedler v. Clark, 714 F.2d 77, 789 (9th Cir. 1983).
In general, a federal court’s jurisdiction is limited to cases involving a
federal question (28 U.S.C. § 1331), or diversity of citizenship (28 U.S.C. § 1332).
Frost’s allegations do not include any information establishing that jurisdiction
may exist over this action based on either the existence of a federal question, or
the diversity of citizenship between Frost and all Defendants. Thus, this case is
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Pro se litigants are “bound by the rules of procedure.” Ghazali v. Moran,
46 F.3d 52, 54 (9th Cir. 1995).
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subject to dismissal for lack of jurisdiction.
IV.

CONCLUSION
Based on the foregoing, the Court finds Frost’s Complaint, as presently

pled, is frivolous and subject to dismissal for failure to state a claim on which
relief could be granted, and for lack of jurisdiction. But the dismissal must be
without prejudice. Ordinarily, “[d]ismissal of a pro se complaint without leave to
amend is proper only if it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th
Cir. 2007) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
1988)). Under the circumstances, that Court cannot conclude that Frost would be
unable to cure the deficiencies in his Complaint by filing an amended pleading.
Therefore, IT IS RECOMMENDED that Frost’s Complaint be DISMISSED
without prejudice.
In view of Frost’s pro se status, the Court will afford him an opportunity to
amend his allegations to cure the defects noted in this ruling, and to possibly state
a cognizable claim for relief. The Clerk of Court is directed to provide him with a
complaint form for filing an amended complaint.
Therefore, IT IS ORDERED that on or before June 11, 2015, Frost shall file
an amended complaint. Pursuant to Fed. R. Civ. P. 8(a), Frost’s amended
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complaint need only set forth a short and plain statement of his claims against each
individual Defendant showing that he is entitled to relief.
Although the rules require only a short and plain statement to establish a
defendant’s liability for violations of a plaintiff’s rights, the plaintiff must still set
forth certain basic facts demonstrating how each defendant caused or personally
participated in causing a deprivation of the plaintiff’s protected rights. Arnold v.
IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). Thus, in any complaint the plaintiff
need only write short, plain statements which concisely describe: (1) the federal
statutory or constitutional right plaintiff believes was violated; (2) the name of the
defendant(s) who violated the right; (3) exactly what each defendant did or failed
to do; (4) how the action or inaction of that defendant is connected to the violation
of plaintiff’s federal or constitutional right; and (5) what injury plaintiff suffered
because of that defendant’s conduct.
At all times during the pendency of this action, Frost shall immediately
advise the Court of any change of address and its effective date. Such notice shall
be captioned “NOTICE OF CHANGE OF ADDRESS.” Failure to file a NOTICE
OF CHANGE OF ADDRESS may result in the dismissal of the action for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b), or for failure to state a claim for
relief.
Frost is advised that his failure to prosecute this action, to comply with the
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Court’s orders, or to comply with the Federal Rules of Civil Procedure may also
result in a recommendation that this case be dismissed with prejudice pursuant to
Fed. R. Civ. P. 41(b). The Court may dismiss this case under Rule 41(b) sua
sponte under certain circumstances. See, e.g., Link v. Wabash Railroad Co., 370
U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest
Serv., 403 F.3d 683, 689 (9th Cir. 2005).
DATED this 12th day of May, 2015.

Jeremiah C. Lynch
United States Magistrate Judge

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