(PS) Iegorova v. Shpak ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIUDMYLA IEGOROVA, No. 2:19-cv-1613-JAM-EFB PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ANASTASIYA SHPAK, 15 Defendant. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 22 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 23 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 24 below, plaintiff’s complaint must be dismissed for failure to state a claim. 25 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Under this standard, the court must accept as true the allegations of the complaint in 11 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 12 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 13 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 14 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 15 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 16 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 17 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 18 Plaintiff’s complaint consists of vague and disjointed allegations that fail to state a claim 19 for relief. For instance, she alleges that the United States government “provided Russian citizens 20 with jobs in USA and cash income in Europe.” ECF No. 1 at 2. She further claims that the 21 government stole documents and refused to hold a hearing in July, August, and September 2015. 22 Id. Plaintiff also alleges that she called defendant Anastasiya Shpack to make an appointment, 23 but defendant did not return her call. Id. She claims that defendant later “committed fraud and 24 left evidence for Human Rights in Europe and Supreme Court United States of America.” Id. at 25 2-3. Plaintiff also alleges that she lost forty pounds due to “crimes members Russian British 26 conspiracy in USA in many government offices in” Sacramento, California. Id. at 3. 27 ///// 28 ///// 1 The only claim plaintiff asserts is for violation of 18 U.S.C. § 241, which is a criminal 2 || statute that does not provide a private right of action. See Allen v. Gold Country Casino, 464 F.3d 3 | 1044, 1048 (9th Cir.2006) (affirming the dismissal claims under 18 U.S.C. § 241 because it is a 4 | “criminal statute[] that do not give rise to civil liability”). Furthermore, plaintiff’s allegations are 5 || fanciful and frivolous, and could not plausibly support a claim against for relief. Denton v. 6 | Hernandez, 504 U.S. 25, 33 (1992) (‘[A] finding of factual frivolousness is appropriate when the 7 || facts alleged rise to the level of the irrational or the wholly incredible ....”). Therefore, it is 8 || recommended that plaintiff's complaint be dismissed without leave to amend. See Noll v. 9 | Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (while the court ordinarily would permit a pro se 10 | plaintiff to amend, leave to amend should not be granted where it appears amendment would be 11 | futile); California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th 12 | Cir. 1988) (‘Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, 13 | and futility.”’). 14 Accordingly, it is hereby ORDERED that plaintiff’ s request for leave to proceed in forma 15 || pauperis (ECF No. 2) is granted. 16 Further, it is RECOMMENDED that plaintiff's complaint be dismissed without leave to 17 || amend, and the Clerk be directed to close the case. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 20 || after being served with these findings and recommendations, any party may file written 21 || objections with the court and serve a copy on all parties. Such a document should be captioned 22 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 23 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 24 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 25 || DATED: March 19, 2020. 26 tid, PDEA EDMUND F. BRENNAN 27 UNITED STATES MAGISTRATE JUDGE 28