Griffin v. Safeway Corp et al

Filing 6

ORDER RE: REPORT AND RECOMMENDATION AND CLOSING FILE adopting in full 4 Report and Recommendations. Signed by Senior Judge Justin L. Quackenbush. (JW, Operations Clk)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JUAN P. GRIFFIN,

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Plaintiff,

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NO. 2:16-CV-00238-JLQ
ORDER RE: REPORT AND
RECOMMENDATION AND
CLOSING FILE

v.
SAFEWAY CORP., et al.,

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Defendants.

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BEFORE THE COURT is the Report and Recommendation (ECF No. 4, “Report”)

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of Magistrate Judge Rodgers and Plaintiff’s Objection thereto (ECF No. 5). On August 1,

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2016, Magistrate Judge Rodgers issued the Report recommending closing the file of this

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matter because Plaintiff failed to respond to Magistrate Judge Rodgers’ Order Denying

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Application to Proceed In Forma Pauperis (ECF No. 3). On August 4, 2016, Plaintiff

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filed a letter stating his objection to the Report “due too [sic] the fact that this is the first

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notice I’ve received from this court.” (ECF No. 5).

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On June 29, 2016, Plaintiff submitted his Complaint (ECF No. 2) and an

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application to proceed in forma pauperis (ECF No. 1). On June 30, 2016, Magistrate

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Judge Rodgers issued an Order Denying Plaintiff’s application to proceed in forma

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pauperis because Plaintiff put inconsistent information in his application. (ECF No. 3).

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Specifically, Plaintiff reported monthly wages in response to Question No. 2, but also

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stated he is not currently employed. (ECF No. 3). Plaintiff was directed, within 30 days,

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to: (1) pay the full filing fee; (2) show cause why prepayment would be inappropriate; or

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(3) submit a properly completed application to proceed in forma pauperis. (ECF No. 3).

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To date, Plaintiff has not taken any of the three actions identified above.

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When a magistrate judge issues a report and recommendation, the district court
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“may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district court “shall make a de

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novo determination of those portions of the report ... or recommendations to which

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objection is made.” 28 U.S.C. § 636(b)(1). However, “[a] general objection to the entirety

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of a magistrate’s report, without specifying a single issue of contention.... has the same

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effects as would a failure to object.” Howard v. Secretary of Health and Human Services,

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932 F.2d 505, 509 (6th Cir. 1991); see also, Sirhan v. Galaza, 76 F. Supp. 3d 1073, 1080

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(C.D. Cal. 2015) (“The party making objections bears the burden of specifically

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identifying the portions of the report and recommendation to which it objects.”).

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Plaintiff made no specific objection to any portion of the substance of Magistrate

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Judge Rodgers’ Report. His only discernable objection is the Report “is the first notice”

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he has received from the court. (ECF No. 5). Other than this general and unsupported

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objection, Plaintiff has taken no action to comply with Magistrate Judge Rodgers’ Order,

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such as submitting a properly completed application or tendering the filing fee. The

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undisputed evidence shows Plaintiff submitted an inconsistent application, it was denied,

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and Plaintiff has not attempted to remedy the errors in the three months since the Order

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Denying Application to Proceed In Forma Pauperis was entered. Despite Plaintiff’s

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insufficient objection, the court has reviewed the Report en toto and finds closing the file

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in this matter is appropriate for failure to comply with the court’s Order and also for

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failure to prosecute under Fed.R.Civ.P. 41(b). The court is adopting the Report and

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closing this file for the reasons set forth therein. However, had Plaintiff presented a

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complete application to proceed in forma pauperis, the Complaint would be dismissed as

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frivolous. For the reasons set forth below, the court finds the claims presented in the

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Complaint are frivolous.

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Pursuant to 28 U.S.C. § 1915(a), a district court “may authorize the

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commencement ... of any suit ... without prepayment of fees... by a person who submits

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an affidavit that includes a statement of all assets such [person] possesses that the person

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in unable to pay such fees or give security therefor.” See also, Andrews v. Cervantes, 493
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F.3d 1047, 1051 n.1 (9th Cir. 2007) (citing Lister v. Department of Treasury, 408 F.3d

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1309, 1312 (10th Cir. 2005) (holding the statute applies to all persons, not just prisoners)).

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However, “the court shall dismiss the case at any time if the court determines ... the

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action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be

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granted; or (iii) seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint “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), superseded by statute on other grounds as stated in Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000). The court may dismiss a claim when it is “based on

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an indisputably meritless legal theory” or when “factual contentions are clearly baseless.”

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Neitzke, 490 U.S. at 327. The “critical inquiry” is whether any of the claims have “an

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arguable basis in law and fact.” Jackson v. State of Ariz., 885 F.2d 639, 640 (9th Cir.

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1989), superseded by statute on other grounds as stated in Lopez, 203 F.3d at 1130-31.

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A “finding of factual frivolousness is appropriate when the facts alleged rise to the

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level of the irrational or the wholly incredible, whether or not there are judicially

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noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33

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(1992). In considering whether a complaint is frivolous, “the in forma pauperis statute,

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unlike Rule 12(b)(6), ‘accords judges not only the authority to dismiss a claim based on

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an indisputably meritless legal theory, but also the unusual power to pierce the veil of the

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complaint’s factual allegations and dismiss those claims whose factual contentions are

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clearly baseless.” (Id.) (quoting Neitzke, 490 U.S. at 327).

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Plaintiff alleged his civil rights were violated because unnamed Safeway

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employees refused to allow him to purchase alcohol over a period of five months in 2013.

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(ECF No. 2 at 4). He also alleged between “22 June, 2016 [sic] and 1 Dec, 2016 [sic]” he

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“caught the anti-theft individuals violating my civil rights.” (ECF No. 2 at 4). Plaintiff’s

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legal conclusions and sparse factual allegations are baseless and frivolous. It is
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implausible employees of Safeway intentionally denied Plaintiff the ability to purchase

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alcohol in a manner violating his civil rights. It is wholly incredible to suggest the

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employees at this store would intentionally deny Plaintiff alcohol, much less without

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some valid basis for doing so. The court finds the Complaint frivolous and no amendment

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would cure the baseless claims contained therein.

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The court also observes Plaintiff has eight other cases pending which contain

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similar allegations of a sparse, conclusory, and fanciful nature. It appears Plaintiff deems

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it appropriate to file a new lawsuit whenever he is unhappy or dissatisfied with another

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person’s actions. This defies the purpose of civil lawsuits and takes up the court’s time

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addressing frivolous claims. Plaintiff is warned a litigant who burdens the court with

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repetitive and frivolous litigation runs the risk of being declared a vexatious litigant. See

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Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007). This court is

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considering initiating such a process in light of Plaintiff’s conduct and allegations in all

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of the pending cases, including the pending matter.

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IT IS HEREBY ORDERED:

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1.

The Report and Recommendation dated August 1, 2016 (ECF No. 4), is
ADOPTED IN FULL.

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2.

Plaintiff’s Objection (ECF No. 5) is OVERRULED.

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3.

The court finds the Complaint (ECF No. 2) and the claims and factual
allegations contained therein are frivolous and baseless.

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IT IS SO ORDERED. The Clerk is directed to enter this Order, furnish a copy to
Mr. Griffin, and close this file.
Dated October 6, 2016.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

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