(PC) Goodbar v. Seippel ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ROBBIE GOODBAR, Case No. 2:22-cv-00006-JDP (PC) 11 Plaintiff, ORDER THAT: 12 v. (1) PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS BE 13 PHILLIP SEIPPEL, et al., GRANTED 14 Defendants. (2) THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO THIS ACTION 15 ECF No. 5 16 FINDINGS AND RECOMMENDATIONS 17 THAT PLAINTIFF’S COMPLAINT BE DISMISSED WITHOUT LEAVE TO 18 AMEND FOR FAILURE TO STATE A CLAIM 19 ECF No. 1 20 FOURTEEN-DAY DEADLINE 21 22 Plaintiff Robbie Goodbar is a state prisoner proceeding without counsel in this civil rights 23 action brought under 42 U.S.C. § 1983. He alleges that he has been harmed by microwave 24 radiation emanating from a military operation being conducted on the prison’s second floor. ECF 25 No. 1 at 3. This claim, for the reasons stated below, cannot proceed, and I recommend that the 26 complaint be dismissed for failure to state a viable claim. I will also grant plaintiff’s application 27 to proceed in forma pauperis. ECF No. 5. 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 1 II. Analysis 2 Plaintiff alleges that a military operation is occurring on the prison’s second floor and that 3 | a “crowd control weapon/radiation gun” has been used to torture him. ECF No. 1| at 3. He also 4 | claims that defendant Seippel is both a CIA analyst and the father of the victim of the crime of 5 | which plaintiff was convicted. Jd. Although it is difficult to tell, plaintiff appears to allege that 6 | Seippel is responsible for the radiation torture. These allegations are frivolous and must be 7 | dismissed. See Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual 8 | frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly 9 | incredible, whether or not there are judicially noticeable facts available to contradict them.”). In 10 || making this finding, I do not imply that plaintiff is dishonest. He may well believe his claims. 11 | That sincerity, however, is not enough to save his case. 12 Leave to amend is unwarranted. This action could only proceed if plaintiff changed the 13 | fundamental nature of his claims. 14 It is ORDERED that: 15 1. Plaintiff's application to proceed in forma pauperis, ECF No. 5, is GRANTED. 16 2. The Clerk of Court is directed to assign a district judge to this action. 17 Further, [RECOMMEND that Plaintiff’s complaint, ECF No. 1, be dismissed with 18 || prejudice and without leave to amend for failure to state a claim. 19 These recommendations will be submitted to the U.S. district judge presiding over the 20 | case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of 21 | these findings and recommendations, plaintiff may file written objections with the court. That 22 || document must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 23 || The presiding district judge will then review the findings and recommendations under 28 U.S.C. 24 | § 636(b)1)(C). 25 26 IT IS SO ORDERED. 27 ( 1 Sy — Dated: _ July 7, 2022 q——— 28 JEREMY D,. PETERSON 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28