(PC) Van Huisen v. Lawrence Livermore Lab ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY SCOTT VAN HUISEN, No. 2:23-cv-01925-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 LAWRENCE LIVERMORE LAB, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought pursuant to 42 18 U.S.C. § 1983. ECF No. 1. Plaintiff has also brought two motions for appointment of counsel 19 (ECF Nos. 2 and 4), a motion to proceed in forma pauperis (IFP) (ECF No. 7), and a motion for 20 extension of time (ECF No. 11). This order will address plaintiff’s motions and screen plaintiff’s 21 complaint. 22 Leave to Proceed In Forma Pauperis 23 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 24 Accordingly, the court directs the agency having custody of plaintiff to collect and forward the 25 appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(a)(1) and (2). 26 Motion for Appointment of Counsel and Extension of Time 27 District courts lack authority to require counsel to represent indigent prisoners in § 1983 28 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 1 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 2 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 3 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 4 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 5 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 6 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 7 the court finds there are no exceptional circumstances in this case. 8 Plaintiff’s motion for extension of time was filed when plaintiff was not subject to any 9 pending deadline. It will therefore be denied as moot. 10 Screening Standards 11 Federal courts must engage in a preliminary screening of cases in which prisoners seek 12 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 13 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 14 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 15 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 16 relief.” Id. § 1915A(b). 17 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 18 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 19 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 20 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 21 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 22 While the complaint must comply with the “short and plain statement” requirements of Rule 8, its 23 allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 24 662, 679 (2009). 25 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 26 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 27 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 28 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 1 678. 2 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 3 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 4 content that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 6 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 7 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 8 plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 9 Screening Order 10 Plaintiff’s complaint includes amongst its numerous defendants George Bush, Jr. and 11 George Bush, Sr. ECF No. 1 at 7. His claims include “Constructive Treason” and “Academic 12 Freedom.” Id. at 4-5. The extravagant allegations are largely incoherent and read as a list of 13 conclusory terms and meandering phrases strung together. For example, Claim 2, which is 14 representative of the two additional claims, reads in part as follows: 15 [] Rights ending in dispensation/provocation. Isiah 59:5. They hatch vipers eggs and weave the spiders web. He who eats of their 16 eggs dies, and from that which is crushed a viper breaks out. Causation. “King Cobra.” Also note case in point D.O.C. US 523 17 316 1999. Department of Census versus House of Representatives. Then note companion case Van Huisen vs. The House of 18 Representatives. The “Mal Aportioned [sic] outcome of the US 523 316 1000 was an egg of treachery. Civil Conspiracy. “A Secret 19 Wall.” A division. 20 ECF No. 1 at 4. As drafted, plaintiff’s complaint presents no cognizable federal claim. It is 21 largely incomprehensible, lacks substance, and fails to specify how any particular defendant was 22 involved in violating plaintiff’s federal statutory or constitutional rights. 23 A complaint that is frivolous, malicious or fails to state a claim cannot survive screening 24 under section 1915A(b) and must be dismissed. A claim is frivolous “when the facts alleged arise 25 to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable 26 facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding that “§1915(d)’s term ‘frivolous,’ when 28 applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful 1 factual allegation.”) Plaintiff’s allegations are indecipherable and, as currently drafted, frivolous. 2 In an abundance of caution, however, plaintiff will be given the opportunity to amend his 3 complaint to cure the deficiencies. 4 Leave to Amend 5 Plaintiff may choose to further amend his complaint. He is cautioned that any amended 6 complaint must identify as a defendant only persons who personally participated in a substantial 7 way in depriving him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 8 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 9 participates in another’s act or omits to perform an act he is legally required to do that causes the 10 alleged deprivation). Plaintiff may also include any allegations based on state law that are so 11 closely related to his federal allegations that “they form the same case or controversy.” See 28 12 U.S.C. § 1367(a). 13 The amended complaint must also contain a caption including the names of all defendants. 14 Fed. R. Civ. P. 10(a). 15 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 16 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring unrelated claims against 17 multiple defendants. Id. 18 Any amended complaint must be written or typed so that it so that it is complete in itself 19 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 20 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 21 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 22 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 23 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 24 1967)). 25 Any amended complaint should be as concise as possible in fulfilling the above 26 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 27 background which has no bearing on his legal claims. He should also take pains to ensure that his 28 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 1 || and organization. Plaintiff should carefully consider whether each of the defendants he names 2 | actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 3 | which plaintiff names dozens of defendants will not be looked upon favorably by the court. 4 Conclusion 5 Accordingly, it is ORDERED that: 6 1. Plaintiff's motions to appoint counsel (ECF Nos. 2 and 4) are DENIED without 7 prejudice; 8 2. Plaintiff's motion for extension of time (ECF No. 11) is DENIED; 9 3. Plaintiff's motion to proceed in forma pauperis (ECF No. 7) is GRANTED; 10 4. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 11 in accordance with the notice to the custodial agency filed concurrently herewith; 12 5. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend within 30 13 days of service of this order; and 14 2. Failure to comply with this order may result in dismissal of this action. Hr pA ZBL 16 || Dated: November 27, 2023 ZA tT “bhi “Fe LACK 7 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28