(PS) Wise v. T-Mobile USA, Inc ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSH WISE, No. 2:21-CV-2268-DAD-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 T-MOBILE USA, INC., 15 Defendant. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 court is Plaintiff’s complaint, ECF No. 1. 19 The Court is required to screen complaints brought by litigants who have been 20 granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this screening 21 provision, the Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B). 24 Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), the Court must dismiss an action 25 if it is determined that it lacks subject matter jurisdiction. Because Plaintiff has been granted 26 leave to proceed in forma pauperis, the Court will screen the complaint pursuant to § 1915(e)(2). 27 Pursuant to Rule 12(h)(3), the Court will also consider as a threshold matter whether it has 28 subject-matter jurisdiction. 1 I. PLAINTIFF’S ALLEGATIONS 2 Plaintiff names T-Mobile USA, Inc. as the sole Defendant. See ECF No. 1, pgs. 1- 3 2. In his complaint, Plaintiff claims harassment and intentional infliction of emotional distress 4 based on the “combined effort of the other corporations and the FBI tortuous [sic] with 5 prospective economic gain, negligence, and fraud.” Id., pg. 3. Plaintiff alleges that Defendant, 6 the Federal Government, and the Federal Bureau of Investigations (“FBI”) have altered Plaintiff’s 7 phone and services, and, due to collusion with others, have engaged in harassment and fraud, and 8 interfered with his prospective economic gain and with interstate commerce. See id., pg. 1. 9 Plaintiff also alleges that Defendant attempted to murder him after he tried to commit suicide 10 from the harassment he received by Defendant and Meta.com, Amazon, Xfinity, Alphabet Inc., 11 Google and Gmail products, and Door Dash. See id. Plaintiff seeks relief in the amount of $100 12 billion dollars for expenses incurred, pain and suffering, and punitive damages. See id., pg. 4. 13 14 II. DISCUSSION 15 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 16 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 17 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 18 550 U.S. 544, 555 (2007) (citation omitted). However, in order to survive dismissal for failure to 19 state a claim, a complaint must contain factual allegations sufficient “to raise a right to relief 20 above the speculative level” and “enough facts to state a claim to relief that is plausible on its 21 face.” Id. at 555-56, 570. “A claim has facial plausibility when the plaintiff pleads factual 22 content that allows the court to draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 “demands more than 24 an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. 25 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 26 See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 27 (9th Cir. 1984). When applied to a complaint, the term “frivolous” embraces both the inarguable 28 legal conclusion and the fanciful factual allegation. See Neitzke, 490 U.S. at 325. The court 1 | may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal 2 | theory or where the factual contentions are clearly baseless. Id. at 327. The court need not accept 3 || the allegations in the complaint as true, but must determine whether they are fanciful, fantastic, or 4 | delusional. See Denson v Hemandez, 504 U.S. 25, 33 (1992) (quoting Neitzke, 490 U.S. at 328). 5 Plaintiff's complaint must be dismissed as patently frivolous. Here, Plaintiff's 6 || complaint is rambling, largely unintelligible, and contains no credible claim for relief. □□□□□□□□□□□ 7 || allegations that Defendant, the Federal Government, and the FBI have altered Plaintiff's phone 8 | and services, colluded, engaged in harassment and fraud, and interfered with his prospective 9 || economic gain and with interstate commerce are far-fetched. Plaintiffs claims that Defendant 10 || attempted to murder him and that he was harassed by Defendant, Meta.com, Amazon, Xfinity, 11 || Alphabet Inc., Google and Gmail products, and Door Dash are fantastical and simply not credible. 12 | Plaintiff provides no facts to substantiate any of these implausible allegations against Defendant. 13 | Thus, Plaintiff has failed to present an arguable basis in law and fact for which relief can be 14 | granted. 15 16 Il. CONCLUSION 17 Based on the foregoing, as there appears to be no circumstances under which 18 || Plaintiff can plausibly state a claim, the undersigned recommends this action be dismissed for 19 | failure to state a claim. 20 These findings and recommendations are submitted to the United States District 21 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 22 || after being served with these findings and recommendations, any party may file written objections 23 || with the court. Responses to objections shall be filed within 14 days after service of objections. 24 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 25 || Yist, 951 F.2d 1153 (9th Cir. 1991). 26 | Dated: October 18, 2022 Co 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE