(PC) Kishor v. Jillian ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANDRA KISHOR, Case No. 2:23-cv-01584-KJM-JDP (PC) 12 Plaintiff, ORDER SCREENING PLAINTIFF’S COMPLAINT, GRANTING HIS MOTION 13 v. TO PROCEED IN FORMA PAUPERIS, DENYING HIS REMAINING MOTIONS 14 PARVINA BEN JILLIAN, et al., TO PROCEED IN FORMA PAUPERIS, MOTION FOR AN EXTENSION OF TIME, 15 Defendants. AND MOTION TO WAIVE THE FILING FEES 16 ECF Nos. 1, 4, 10, 11, 12, & 14 17 18 Plaintiff, a county inmate proceeding without counsel, brings this action against his ex- 19 wife, Parvina Ben Jillian, and Sutter Health. Plaintiff has filed three motions to proceed in forma 20 pauperis, a motion for an extension of time to file a motion to proceed in forma pauperis, and a 21 motion to waive the filing fees.1 The complaint fails to allege a cognizable claim; thus, I will 22 dismiss it and grant plaintiff an opportunity to amend his complaint. 23 24 25 1 Plaintiff’s motion to proceed in forma pauperis at ECF No. 14 makes the required showing and will be granted. His remaining two motions to proceed in forma pauperis and 26 motion for extension of time are denied as moot. ECF Nos. 4, 10, & 12. Additionally, his motion 27 to waive the filing fees, ECF No. 11, is denied. See Reed v. Newsom, No. 3:20-CV-2439-AJB- MDD, 2021 WL 3406283, at *2 (S.D. Cal. Aug. 4, 2021) (“[Section] 1915 no longer provides any 28 authority for courts to waive full payment of the filing fee required by § 1915(b)(1).”). 1 Screening and Pleading Requirements 2 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 3 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 4 claims and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a 5 claim upon which relief may be granted, or that seeks monetary relief from a defendant who is 6 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 24 Analysis 25 The complaint’s allegations are difficult to discern. The complaint alleges that in 1994 26 pots and pans fell on plaintiff’s daughter’s head at a Walmart in Elk Grove. ECF No. 1 at 2-3. 27 He claims that his daughter was treated at the hospital for whiplash and that while she was being 28 treated, her mother and Sutter Health medical professionals “simulated” her with cornstarch and 1 meningitis to give her cystic fibrosis. Id. at 2-4. The complaint claims that plaintiff’s ex-wife 2 filed a false insurance claim without his knowledge for his daughter’s injuries. Id. The complaint 3 appears to allege that, in 1996, plaintiff’s ex-wife hired “teen gangsters” to rob his home and kill 4 him. Id. at 4-5. Plaintiff claims that his ex-wife tried to make him sign an insurance claim for the 5 robbery, and when he refused, she tried to behead him with a machete. Id. at 5. The complaint 6 also claims that plaintiff’s “divorce attorney judge” was killed by his ex-wife’s neighbor in 1997. 7 Id. at 4-5. 8 This complaint asserts that it is a qui tam action, and that plaintiff is acting as a relator on 9 his daughter’s behalf, seeking $195,000,000. Id. at 4. The complaint lists claims arising under 10 Racketeer Influenced and Corrupt Organizations Act (“RICO”), California’s Insurance Frauds 11 Prevention Act (“IFPA”), California False Claims Act (“CFCA”), Anti-Kickback Statute 12 (“AKS”), and other California government codes. 13 The complaint cannot proceed past screening. The factual allegations are frivolous. See 14 Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual frivolousness is appropriate 15 when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not 16 there are judicially noticeable facts available to contradict them.”). Additionally, plaintiff has not 17 alleged the proper basis for a qui tam action, and he cannot sustain one proceeding pro se. See 18 U.S. ex rel. Barajas v. United States, 258 F.3d 1004, 1005 (9th Cir. 2001); Stoner v. Santa Clara 19 County Office of Educ., 502 F.3d 1116, 1127 (9th Cir. 2007) (holding that “a pro se relator cannot 20 prosecute a qui tam action on behalf of the United States”). Finally, while the complaint does not 21 state a cognizable claim, plaintiff is warned that his claims may be outside applicable statutes of 22 limitations since many of the alleged events occurred more than twenty-five years ago. 23 I will allow plaintiff a chance to amend his complaint before recommending that this 24 action be dismissed. If plaintiff decides to file an amended complaint, the amended complaint 25 will supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th 26 Cir. 2012) (en banc). This means that the amended complaint will need to be complete on its face 27 without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 28 complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 1 | complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 2 | defendant’s involvement in sufficient detail. The amended complaint should be titled “First 3 | Amended Complaint” and refer to the appropriate case number. If plaintiff does not file an 4 | amended complaint, I will recommend that this action be dismissed. 5 Accordingly, it is hereby ORDERED that: 6 1. Plaintiff's motions to proceed in forma pauperis, ECF Nos. 4 & 12, are denied as 7 || unnecessary. 8 2. Plaintiffs motion for an extension of time to file an application to proceed in forma 9 | pauperis, ECF No. 10, is denied as moot. 10 3. Plaintiffs motion to waive the filing fees, ECF No. 11, is denied. 11 4. Plaintiffs motion to proceed in forma pauperis, ECF No. 14, is granted. 12 5. Within thirty days from the service of this order, plaintiff must either file an 13 | amended complaint or advise the court he wishes to stand by his current complaint. If he selects 14 | the latter option, I will recommend that this action be dismissed. 15 6. Failure to comply with this order will result in the dismissal of this action. 16 7. The Clerk of Court is directed to send plaintiff a new form complaint. 17 18 IT IS SO ORDERED. 19 ( q Sty — Dated: _ November 30, 2023 Q_-——— 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28