Martin v. Pfzifer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE R. MARTIN, Case No. 1:20-cv-00605-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING 13 v. COMPLAINT WITHOUT LEAVE TO AMEND AS FRIVOLOUS AND DENYING 14 C. PFZIFER, et al., PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF 15 Defendants. FEES 16 ORDER DIRECTING CLERK OF THE COURT TO REDESIGNATE THIS 17 MATTER AS A REGULAR CIVIL ACTION AND RANDOMLY ASSIGN A UNITED 18 STATES DISTRICT JUDGE 19 (ECF No. 1, 2) 20 OBJECTIONS DUE WITHIN THIRTY DAYS 21 Lance R. Martin (“Plaintiff”) is appearing pro se in this civil rights action pursuant to 42 22 U.S.C. § 1983. Currently before the Court are Plaintiff’s complaint and an application to 23 proceed without prepayment of fees, filed April 29, 2020. 24 / / / 25 / / / 26 / / / 27 / / / 1 I. 2 SCREENING REQUIREMENT 3 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 4 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 5 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 6 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 7 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 8 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 9 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 10 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 11 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 12 (affirming sua sponte dismissal for failure to state a claim). Plaintiff has requested to proceed in 13 forma pauperis in this action. The Court exercises its discretion to screen the plaintiff’s 14 complaint in this action to determine if it “(i) is frivolous or malicious; (ii) fails to state a claim 15 on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune 16 from such relief.” 28 U.S.C. § 1915(e)(2). 17 In determining whether a complaint fails to state a claim, the Court uses the same 18 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 19 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. 20 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 21 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 23 544, 555 (2007)). 24 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 25 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 26 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 27 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 1 short of the line between possibility and plausibility of entitlement to relief.’” Id. at 678 (quoting 2 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 3 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 4 alleged. Iqbal, 556 U.S. at 678. Similarly, the court may dismiss a claim as factually frivolous 5 when the facts alleged lack an arguable basis in law or in fact or embraces fanciful factual 6 allegations. Neitzke v. Williams, 490 U.S. 319, 325 (1989). 7 II. 8 ALLEGATIONS IN COMPLAINT 9 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 10 the sua sponte screening requirement under 28 U.S.C. § 1915. 11 Plaintiff was formerly incarcerated in the California Department of Corrections and 12 Rehabilitation (“CDCR”). He was released on parole on April 9, 2019, and resides in San Diego, 13 California.1 Plaintiff brings this against Junious, Warden at California State Prison, Corcoran; J. 14 Castro, Associate Warden at Solano State Prison (“Solano”); Christian Pfeifer, Warden at Kern 15 Valley State Prison (“KVSP”); Chris Chrones, Associate Warden at Solano; Smith, Correctional 16 Captain at KVSP; Dorame, Correctional Lieutenant at KVSP; I. Sanchez, Lozano and Escobedo, 17 Correctional Officers at KVSP; and White, Associate Warden of the Substance Abuse and 18 Treatment Center (collectively (“Defendants”)) seeking declaratory and injunctive relief. 19 Plaintiff alleges that Defendants are depriving him of food and water, contaminating his 20 food, water, bedding and clothing, and continuously electronically monitoring Plaintiff with their 21 GPS software program and using it cause him physical distress. Plaintiff states that even though 22 he has been released from prison, Defendants are continuing to deprive him of food and water 23 through unsanitary means. Defendants are using a GPS software computer system and hardware 24 architecture device to control their food and water adulteration system from inside CDCR to 25 outside on the street. Defendants are using the GPS system to control citizens around Plaintiff to 26 adulterate his food, drink, and water. 27 1 By using this device, Defendants know ahead of time what, when, and where Plaintiff 2 will eat. They are monitoring Plaintiff to poison him by using the device. Plaintiff seeks an 3 order to stop Defendants from monitoring him. 4 Defendants Dorame, Lozano, and Escobedo used the GPS radio frequency to verbally 5 control the house manager and residents to serve adulterated food at the Independent Living 6 Facility located at 1202 Koe Street, San Diego, California. The bread was being issued spoiled 7 and soggy or wet and sticky. There was feces mingled in the rice. Water started coming out of 8 the house smelling foul. Defendants tried to control another house resident, Danny Delk, to 9 contaminate some instant coffee powder with bleach and then give it to Plaintiff. Plaintiff can 10 prove the facts by lab results showing blood detection and abnormal bacteria levels in his urine 11 which is caused by the adulterated food and water drink operation. 12 Defendants are also using the GPS device to cause Plaintiff to have extreme headaches to 13 the back of his head and forehead, which even indent his temples. Plaintiff also has body aches 14 and difficulty breathing. Plaintiff has two witnesses who state that, after visiting Plaintiff, 15 Defendants used the device on the witnesses. Defendants have placed GPS receivers and/or 16 computer FR servers in the houses and cars of his neighbors located around 8235 Jamacha Road 17 in San Diego, California. Defendants use this device on people around Plaintiff to have Plaintiff 18 ostracized and to scare women away, not allowing him to pursue a wife and have children. 19 On April 15, 2020, Defendants had a Cox cable van come to the green house across the 20 street and install their prison media outlet telecommunications company GPS download 21 capability to a GPS computer server/receiver. The next day, Plaintiff started suffering extreme 22 pain. Plaintiff seeks a declaratory judgment that Defendants are violating his rights and an order 23 to have the conduct stopped. 24 III. 25 DISCUSSION 26 Plaintiff’s claims against Defendants in this action are facially frivolous. The “facts” 27 alleged in Plaintiff’s complaint are not grounded in reality. Plaintiff alleges that since he has 1 him to contaminate his food, clothing and bedding, scaring away other individuals, and causing 2 Plaintiff to have physical ailments. 3 A complaint is frivolous where it lacks an arguable basis either in law or in fact. Neitzke, 4 490 U.S. at 325. When applied to a complaint, frivolous “embraces not only the inarguable legal 5 conclusion, but also the fanciful factual allegation.” Id. “A court may dismiss a claim as 6 factually frivolous only if the facts alleged are clearly baseless, a category encompassing 7 allegations that are fanciful, fantastic, and delusional.” Denton v. Hernandez, 504 U.S. 25, 32– 8 33 (1992) (internal punctuation and citations omitted). 9 The claims in Plaintiff’s complaint fall within the category of fantastic or delusional 10 scenarios and should be dismissed. See Waldrop v. Dep’t of Corr., No. CIV S-06- 11 1260DFLEFBP, 2006 WL 2926754, at *2 (E.D. Cal. Oct. 11, 2006) (dismissing parolee’s claim 12 that CDCR had placed radio transmitters in his ears and uses satellite to monitor him); Simon v. 13 CDCR, No. CIV S-10-2555 GEB, 2012 WL 892281, at *2 (E.D. Cal. Mar. 14, 2012) (dismissing 14 claim that hundreds of prison officials across the state have used a “mind-bending” device 15 utilizing penilephethymegraph/GPS technology to torture him and to modify his behavior); 16 Rutledge v. Foster, No. 218CV1847WBSDBP, 2019 WL 175281, at *3 (E.D. Cal. Jan. 11, 2019) 17 (dismissing action at screening alleging that individuals sexually molest him via a police issue 18 satellite); Monroe v. Arpaio, No. CV053441PHX-NVW(VAM), 2005 WL 3054067, at *3 (D. 19 Ariz. Nov. 14, 2005) (dismissing with prejudice claim that plaintiff had a mind-reader and still 20 has a mind-reader device on him which causes constant duress); Payne v. Contra Costa Sheriff’s 21 Dep’t, No. C 02-2382CRB(PR), 2002 WL 1310748, at *1 (N.D. Cal. June 10, 2002) (dismissing 22 claim that Sheriff’s Department was using telepathy/mind control to harass and torture plaintiff). 23 In fact, Plaintiff has previously had this same claim dismissed as frivolous. Martin v. Trump, 24 No. 318CV02677BTMJLB, 2019 WL 1317331, at *3 (S.D. Cal. Mar. 21, 2019). 25 The Court has carefully considered the claims in the complaint to determine if there are 26 any facts that could be alleged to state a claim in this action and finds that granting leave to 27 amend the complaint would be futile. See Lopez, 203 F.3d at 1137 (dissenting opinion) (a 1 that the action is frivolous). The Court recommends that Plaintiff’s complaint be dismissed 2 without leave to amend as frivolous. 3 “A district court may deny leave to proceed in forma pauperis at the outset if it appears 4 from the face of the proposed complaint that the action is frivolous or without merit.” Minetti v. 5 Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998); Tripati v. First Nat’l Bank & Trust, 821 6 F.2d 1368, 1370 (9th Cir. 1987). However, the “denial of leave to proceed in forma pauperis is 7 an abuse of discretion unless the district court first provides a plaintiff leave to amend the 8 complaint or finds that amendment would be futile.” Rodriguez v. Steck, 795 F.3d 1187, 1188 9 (9th Cir. 2015); see Tripati, 821 F.2d at 1370. Here, the Court has found that Plaintiff’s action is 10 frivolous and granting leave to amend would be futile. The Court recommends that Plaintiff’s 11 application to proceed in forma pauperis be denied. 12 IV. 13 CONCLUSION AND RECOMMENDATIONS 14 Review of Plaintiff’s allegations in this action demonstrate that complaint is frivolous and 15 it would be futile to grant Plaintiff an opportunity to file an amended complaint. Accordingly, IT 16 IS HEREBY RECOMMENDED that: 17 1. Plaintiff’s complaint be dismissed without leave to amend as frivolous; and 18 2. Plaintiff’s application to proceed without prepayment of fees in this action be 19 denied. 20 The Clerk of the Court is HEREBY DIRECTED to redesignate this matter as a regular 21 civil action and randomly assign this matter to a United States District Judge. 22 This findings and recommendations is submitted to the district judge assigned to this 23 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 24 days of service of this recommendation, Plaintiff may file written objections to this findings and 25 recommendations with the court. Such a document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 27 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). WAS 1.6 YU VEU YIN INE SAS OI Te AY 1 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 2 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ May 1, 2020 ‘ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28