Thomas Sr v. Sunshine Care Home et al

Filing 9

REPORT AND RECOMMENDATION that 1 Motion/Application for Leave to Proceed in forma pauperis be DENIED and this action be DISMISSED; that the Clerk of the Court be instructed to close this case and enter judgment accordingly. Objections to R&R due by 8/24/2017. Signed by Magistrate Judge Peggy A. Leen on 8/10/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ALDEN A. THOMAS, SR., dba P.A.J.
TRUST EXECUTOR OFFICE,
Plaintiff,

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Case No. 2:16-cv-02601-JCM-PAL

REPORT OF FINDINGS AND
RECOMMENDATION

v.
SUNSHINE CARE HOME, et al.,

(IFP App. – ECF No. 1)

Defendants.

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This matter is before the court on Plaintiff Alden A. Thomas, Sr.’s Application to Proceed

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In Forma Pauperis (ECF No. 1) pursuant to 28 U.S.C. §§ 1915 and 1915A and LSR 1-1 of the

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Local Rules of Practice. This proceeding is referred to the undersigned pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice.

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Mr. Thomas is a prisoner proceeding in this action pro se, which means that he is not

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represented by an attorney. See LSR 2-1. He is an inmate in the custody of the California

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Department of Corrections at the Centinela State Prison. He has requested authority to proceed in

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forma pauperis (“IFP”), meaning without prepaying the filing fees, and submitted a proposed

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motion to register a judgment from another district. Pursuant to 28 U.S.C. § 1914(a) and the

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Judicial Conference Schedule of Fees, a filing fee and administrative fee totaling $400 is required

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to commence a civil action in a federal district court. The court may authorize a person to

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commence an action without prepaying the filing fee if the person files an IFP application

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including an affidavit stating that he or she is unable to pay the fee upfront. See 28 U.S.C.

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§ 1915(a)(1); LSR 1-1. However, the court must apply “even-handed care” to ensure that “federal

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funds are not squandered to underwrite, at public expense, either frivolous claims” or the colorable

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claims of a plaintiff “who is financially able, in whole or in material part, to pull his own oar.”
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Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984) (collecting cases).

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The court must conduct a preliminary screening in any case in which a prisoner seeks IFP

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status. 28 U.S.C. § 1915(e); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)

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(§ 1915(e) applies to “all in forma pauperis complaints”). In its review, a court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon

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which relief may be granted or seek monetary relief from a defendant who is immune from such

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relief. Id.; 42 U.S.C. § 1997e (Prison Litigation Reform Act of 1995 (“PLRA”)). Section 1915(d)

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gives the court the power to dismiss “claims whose factual contentions are clearly baseless,” such

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as “claims describing fantastic or delusional scenarios.” Neitzke v. Williams, 490 U.S. 319, 327–

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28 (1989); see also Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009) (Souter, J. dissenting) (noting that

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courts are not bound to accept as true allegations that are “sufficiently fantastic to defy reality as

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we know it”). A complaint may be dismissed as frivolous if it is premised on a non-existent legal

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interest or delusional factual scenario. Neitzke, 490 U.S. at 327–28. Moreover, “a finding of

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factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the

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wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992).

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A “district court may deny leave to proceed in forma pauperis at the outset if it appears

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from the face of the proposed complaint that the action is frivolous or without merit.” Minetti v.

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Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998); see also Denton, 504 U.S. at 31 (recognizing

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Congress’ concern that “a litigant whose filing fees and court costs are assumed by the public,

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unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or

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repetitive lawsuits”). When a court dismisses a complaint upon the initial screening, a plaintiff

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should be given leave to amend the complaint with directions as to curing its deficiencies, unless

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it is clear from the face of the complaint that the deficiencies could not be cured by amendment.

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Lopez, 203 F.3d at 1127–29; Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Allegations in a pro se complaint are held to less stringent standards than formal pleading drafted

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by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 n.7

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(9th Cir. 2010).

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Having reviewed Mr. Thomas’ filings, the court will recommend denial of his IFP
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application and dismissal of this action as frivolous. Thomas’ initial filing includes a motion to

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register a judgment from “another district” and an affidavit in support of the motion. See ECF

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No. 1-1. He signed a “commercial oath and certification” under the penalty of perjury of the

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“Private International Laws of the unincorporated United Stated [sic] of America.” Id. at 11. He

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also attaches docket sheet, administrative default judgment, certification of judgment, and abstract

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of judgment purportedly issued by the “Adjudicator Court” in another district, which is not

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identified anywhere in the documents. The other district is not identified because the “Adjudicator

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Court” does not exist.

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Pursuant to the Federal Rules of Evidence, the court may take judicial notice of any fact

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“not subject to reasonable dispute in that it is either: (1) generally known within the territorial

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jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources

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whose accuracy cannot reasonably be questioned.” F.R.E. 201(b); see also Daniels-Hall v. Nat’l

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Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (finding it appropriate for courts to take judicial

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notice of information made publically available on government websites).

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The court takes judicial notice that a federal “Adjudicator Court” does not exist. See United

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States Courts: Court Role and Structure, http://www.uscourts.gov/about-federal-courts/court-role-

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and-structure (last visited Aug. 10, 2017) (the federal judiciary consists of the United States

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Supreme Court, 13 courts of appeal, 94 district courts; bankruptcy courts and appellate panels, and

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numerous specialty courts, including the Court of International Trade, Court of Federal Claims,

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Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces).

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Because it is clear from the face of the motion that the “Adjudicator Court” is a fictitious entity,

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the court finds that Mr. Thomas is not entitled to an opportunity to amend his request for relief.

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Thomas’ motion so fantastic and delusional that amendment would be futile. See Lopez, 203 F.3d

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at 1126, 1131 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). The court will

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therefore recommend that this action be dismissed.1

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Notably, the court has dismissed two other cases Thomas filed seeking to register judgments purportedly
entered by the non-existent “adjudicator court.” See Thomas v. Kang & Assoc., No. 16-cv-2573-JCM-NJK,
Order (ECF No. 14); Thomas v. Atlas Group L.C., No. 16-cv-2729-JCM-PAL, Order (ECF No. 4).
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Based on the foregoing,

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IT IS RECOMMENDED:

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1. Plaintiff Alden A. Thomas, Sr.’s Application to Proceed In Forma Pauperis (ECF
No. 1) be DENIED and this action be DISMISSED.

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2. The Clerk of the Court be instructed to close this case and enter judgment accordingly.

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Dated this 10th day of August, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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NOTICE

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This Report of Findings and Recommendation is submitted to the assigned district judge

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pursuant to 28 U.S.C. § 636(b)(1) and is not immediately appealable to the Court of Appeals for

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the Ninth Circuit. Any notice of appeal to the Ninth Circuit should not be filed until entry of the

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district court’s judgment. See Fed. R. App. P. 4(a)(1). Pursuant to LR IB 3-2(a) of the Local Rules

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of Practice, any party wishing to object to a magistrate judge’s findings and recommendations of

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shall file and serve specific written objections, together with points and authorities in support of

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those objections, within 14 days of the date of service. See also 28 U.S.C. § 636(b)(1); Fed. R.

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Civ. P. 6, 72. The document should be captioned “Objections to Magistrate Judge’s Report of

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Findings and Recommendation,” and it is subject to the page limitations found in LR 7-3(b). The

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parties are advised that failure to file objections within the specified time may result in the district

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court’s acceptance of this Report of Findings and Recommendation without further review. United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). In addition, failure to file timely

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objections to any factual determinations by a magistrate judge may be considered a waiver of a

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party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to

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the recommendation. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991); Fed. R. Civ. P.

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72.

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