Franklin v. Newsom ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ERIC D. FRANKLIN, Sr., Case No.: 3:21-cv-01645-GPC-BGS CDCR #AX-7039, 11 ORDER: Plaintiff, 12 vs. 1) GRANTING MOTION TO 13 PROCEED IN FORMA PAUPERIS GAVIN NEWSOM; JERRY BROWN, 14 [ECF No. 2] Jr.; DONALD TRUMP; PENCE, 15 Defendants. AND 16 2) DISMISSING CIVIL ACTION AS 17 FRIVOLOUS PURSUANT TO 18 28 U.S.C. § 1915(e)(2)(B)(i) AND 28 U.S.C. § 1915A(b)(1) 19 20 21 Plaintiff Eric D. Franklin, Sr., currently incarcerated at Richard J. Donovan 22 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a 23 civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (See ECF No. 1, 24 “Compl.” at 1.) While far from clear, it appears Franklin seeks to sue the current and 25 former Governors of the State of California and the former President and Vice President 26 of the United States for abusing their authority and for “ignor[ing], disobey[ing], [and] 27 endors[ing] court orders” he claims require his release from state custody. (Id. at 2, 5, 7, 28 9‒10.) 1 Franklin did not pay fee required by 28 U.S.C. § 1914(a) to commence a civil 2 action when he filed his Complaint. Instead, he filed a Motion to Proceed In Forma 3 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). In addition, Franklin has 4 since filed a series of incomprehensible motions, documents, exhibits, and seemingly 5 random portions of his state superior and appellate court records, (see ECF Nos. 6, 9, 15), 6 including a “Motion for the U.S. District Court to Set Mandatory Settlement Conference 7 due to ID Theft, PC 87 Fraud, False Arrest & Imprisonment” (ECF No. 11), and a 8 “Motion for the United States District Court to Enforce Filed Court Ordered Dismissals” 9 (ECF No. 13). 10 I. MOTION TO PROCEED IFP 11 All parties instituting any civil action, suit or proceeding in a district court of the 12 United States, except an application for writ of habeas corpus, must pay a filing fee of 13 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 14 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 15 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 16 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners, 17 however. If granted leave to proceed IFP, they nevertheless remain obligated to pay the 18 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); 19 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 20 actions are dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. 21 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 22 To qualify, section 1915(a)(2) requires prisoners seeking leave to proceed IFP to 23 submit a “certified copy of the trust fund account statement (or institutional equivalent) 24 for . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 25 26 1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of $52, in addition 27 to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not apply to 28 1 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 2 trust account statement, the Court assesses an initial payment of 20% of (a) the average 3 monthly deposits in the account for the past six months, or (b) the average monthly 4 balance in the account for the past six months, whichever is greater, unless the prisoner 5 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 6 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 7 preceding month’s income, in any month in which his account exceeds $10, and forwards 8 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 9 § 1915(b)(2); Bruce, 577 U.S. at 84. 10 In support of his IFP Motion, Franklin has requested, and the California 11 Department of Corrections and Rehabilitation (“CDCR”) has provided, a Prison 12 Certificate and Inmate Statement Reports authorized by a RJD Accounting Officer. (See 13 ECF No. 3 at 1, 3‒4.) See also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 14 398 F.3d at 1119. These documents show Franklin has been transferred back and forth 15 between Salinas Valley State Prison (“SVSP”), California State Prison Lancaster 16 (“LAC”), and RJD during the six months prior to filing suit, but had an average monthly 17 balance of $233.34, average monthly deposits of $233.59, and an available balance of 18 $1400.04 in his account at the time he filed suit from RJD. (See ECF No. 3 at 1, 3.) 19 Therefore, the Court GRANTS Franklin’s Motion to Proceed IFP (ECF No. 2), 20 and assesses an initial filing fee of $46.71 pursuant to 28 U.S.C. § 1915(b)(1). However, 21 this initial fee need be collected only if sufficient funds are available in Franklin’s 22 account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that 23 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a 24 civil action or criminal judgment for the reason that the prisoner has no assets and no 25 means by which to pay the initial partial filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281 26 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 27 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of 28 funds available to him when payment is ordered.”). The remaining balance of the $350 1 total fee owed in this case must be collected by the Secretary of the CDCR, or any 2 subsequent agency having custody of Franklin, and forwarded to the Clerk of the Court 3 pursuant to the installment payment provisions set out in 28 U.S.C. § 1915(b)(2). 4 II. SCREENING 5 A. Standard of Review 6 Because Franklin is a prisoner and is proceeding IFP, his Complaint requires a 7 preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 8 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion 9 found frivolous, malicious, failing to state a claim, or seeking damages from defendants 10 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 11 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 12 2010) (discussing 28 U.S.C. § 1915A(b)). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 16 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 17 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 18 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6)”). 20 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain 21 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 22 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); 23 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but 24 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an 26 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 27 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 28 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 2 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 B. Factual Allegations 4 Franklin’s Complaint contains no discernible factual allegations. Instead, he 5 merely concludes he has been “false[ly] arrest[ed]” and “false[ly] imprison[ed]” as a 6 result of having been convicted in Imperial County Superior Court Case No. JCF32230 7 sometime between 2014 or 2015.2 (See Compl. at 3, 4, 10.) The remainder of his 8 Complaint is comprised of random names, dates, and what appear to be subsequent 9 California Court of Appeals and San Diego County Superior Court civil proceedings 10 which he contends amount to “sab[o]tage,” obstructions of justice, “ID theft,” extortion, 11 money laundering, embezzlement, espionage, treason, libel, slander, and defamation. (Id. 12 at 2, 4, 5.) 13 As best the Court can tell, Franklin appears to fault the current and former 14 Governors of California, as well as the former President and Vice President of the United 15 States, for having “ignored [or] disobeyed” court orders, for having “fail[ed] to uphold 16 17 18 2 Franklin attaches copy of Imperial County Superior Court Minutes in People v. Franklin, Case No. JCF32230, and dated March 6, 2014. (See Compl. at 10.) The Court’s Minute Order shows Franklin was 19 then in custody, charged with one count of violating Cal. Penal Code § 422(A) and one count of violating Cal. Penal Code § 273.6(A), and appeared for a pre-trial conference during which his public defender was 20 relieved and he was temporarily granted permission to represent himself so that he might file a motion to 21 dismiss. (Id.) Franklin does not explain further, but it appears the trial judge subsequently denied his request for self-representation pursuant to Faretta v. California, 422 U.S. 806 (1975) after reviewing his 22 “fairly incoherent and confusing” motion and determining he was not competent to represent himself. See People v. Franklin, 2017 WL 382692, at *1, 3 (Cal. Ct. App. 4th Dist., Div. 1, Jan. 27, 2017) (D068891) 23 (unpub.). Franklin was eventually convicted of criminally threatening his estranged wife and violating a protective order in July 2015, and his judgment of conviction was affirmed on direct appeal, but two one- 24 year enhancements were vacated, and his case was remanded to the Imperial County Superior Court for 25 resentencing. Id. at *4. At resentencing, however, the trial court erroneously resentenced Franklin “without holding a competency hearing despite substantial evidence suggesting he was not competent to 26 be sentenced.” See People v. Franklin, 2018 WL 3385293, at *3 (Cal. Ct. App. 4th Dist., Div. 1, July 12, 2018) (D072570) (unpub.). Therefore, the Court of Appeal vacated Franklin’s resentencing order and 27 again remanded for resentencing and for further proceedings, if necessary, “to determine whether [Franklin] [wa]s able to voluntarily and intelligently waive his right to counsel pursuant to Faretta and 28 1 the Const[itution],” and for “fail[ing] to enforce, [or] endorse[]” writs of mandate and 2 “never releas[ing]” him. (Id. at 2, 4.) Franklin seeks injunctive relief demanding the 3 enforcement of an unidentified “4th District Court of Appeals Order,” his “immediate 4 release,” and $3,010,000,000 in damages.3 (Id. at 7.) 5 C. Discussion 6 Franklin filed suit invoking federal jurisdiction pursuant to 42 U.S.C. § 1983, but 7 “[Section] 1983 ‘is not itself a source of substantive rights,’” and “merely provides a 8 method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 9 386, 393‒94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). 10 “Section 1983 creates a private right of action against individuals who, acting under color 11 of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 12 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show 13 both (1) deprivation of a right secured by the Constitution and laws of the United States, 14 and (2) that the deprivation was committed by a person acting under color of state law.” 15 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 16 The Court finds Franklin’s suit is plainly frivolous. “The purpose of [screening] is 17 ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 18 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation 19 omitted). A pleading is “factual[ly] frivolous[ ]” if “the facts alleged rise to the level of 20 21 22 3 Based on his state court appellate record, see supra, n.2, the Court presumes Franklin mistakenly believes that because the Court of Appeal twice remanded his case to the Imperial County Superior Court 23 for resentencing as to his prior strike and serious felony enhancements, that the Court of Appeal’s opinions require his release. They do not. Franklin’s judgment of conviction for making a criminal threat in 24 violation of Cal. Penal Code § 422 and disobeying a domestic relations order in violation of Cal. Penal 25 Code § 273.6(a) in Superior Court Case No. JCF32230 was affirmed on direct appeal. People v. Franklin, 2017 WL 382692, at *5 (Cal. Ct. App. 4th Dist., Div. 1, Jan. 27, 2017) (D068891) (unpub.). The Court 26 of Appeals did vacate Franklin’s subsequent resentencing order, and remanded the case again, but only to afford him the “opportunity to file a Romero motion before resentencing.” People v. Franklin, 2018 WL 27 3385293, at *5 (Cal. Ct. App. 4th Dist. Div. 1, July 12, 2018) (D072570) (unpub.). People v. Superior Court (Romero), 13 Cal. 4th 497, 530‒32 (Cal. 1996) “discusses the trial court’s discretion to strike prior 28 1 the irrational or the wholly incredible, whether or not there are judicially noticeable facts 2 available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 25–26 (1992). “[A] 3 complaint, containing as it does both factual allegations and legal conclusions, is 4 frivolous where it lacks an arguable basis either in law or in fact.... [The] term ‘frivolous,’ 5 when applied to a complaint, embraces not only the inarguable legal conclusion, but also 6 the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). When 7 determining whether a complaint is frivolous, the court need not accept the allegations as 8 true, but must “pierce the veil of the complaint’s factual allegations,” id. at 327, to 9 determine whether they are “‘fanciful,’ ‘fantastic,’ [or] ‘delusional.’” Denton, 504 U.S. 10 at 33 (quoting Neitzke, 490 U.S. at 328). 11 Here, Franklin’s Complaint, as well as all the supplemental motions and exhibits 12 he has filed in support, are rambling, repetitive, disjointed, and incoherent. (See Compl. 13 at 2‒6; ECF No. 6 at 1, 6‒7; ECF No. 9 at 1‒2; ECF No. 11 at 1‒2; ECF No. 13 at 1, 3‒5; 14 ECF No. 15 at 1, 3.) His Complaint includes an unsubstantiated list of crimes like 15 obstruction of justice, ID theft, money laundering, treason, fraud, and extortion that the 16 Court can only assume he believes have been committed by Governors and the former 17 President and Vice President of the United States, from whom he seeks “a total of 18 $3,010,000,000” in damages. (See Compl. at 3.) Indeed, the parties Franklin has chosen 19 to sue, and the lack of any “short and plain statement of the claim showing that [he] is 20 entitled to [any] relief” arguably based on law or fact, see Fed. R. Civ. P. 8(a)(2); Neitzke, 21 490 U.S. at 325, when taken together with the exorbitant amount of damages he seeks 22 “suggest[] to the Court that this action lacks serious purpose or value.” See Johnson v. 23 Paul, No. 20-CV-2174-JLS (WVG), 2020 WL 6825673, at *2 (S.D. Cal. Nov. 20, 2020) 24 (dismissing pro se § 1983 complaint seeking to sue the Pope, a U.S. Senator, the 25 Secretary of State, and several Presidents for having committed “human trafficking 26 crimes, Biblical crimes . . . extortion, conspiracies [and] public kidnappings” sua sponte 27 as frivolous pursuant to 28 U.S.C. § 1915(e)(2)); see also McHenry v. Renne, 84 F.3d 28 1172, 1178 (9th Cir. 1996) (noting that a complaint fails to comply with Rule 8 if “one 1 cannot determine … who is being sued, for what relief, and on what theory.”). 2 Thus, because Franklin’s pleadings appear grounded on a wholly unfounded and 3 irrational belief that the current and former Governors of California, together with the 4 former President and Vice-President of the United States, have committed unspecified 5 Constitutional violations against him and have personally failed to “endorse” his 6 “immediate release,” (see Compl. at 7), his case demands sua sponte dismissal as 7 frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1).4 See Iqbal, 556 8 U.S. at 676; Denton, 504 U.S. at 25-26; Neitzke, 490 U.S. at 324; see also Holger v. 9 Burgess, No. 3:18-CV-00277-RRB, 2019 WL 12472119, at *3 (D. Alaska Jan. 16, 2019) 10 (dismissing pro se litigant’s complaint against various federal judges, government 11 attorneys, the President, and multiple federal agencies as frivolous pursuant to 28 U.S.C. 12 § 1915(e)(2)(B) where complaint and its “extensive exhibits” revealed “no tangible 13 alleged facts,” and only “claims … premised on [plaintiff’s] own interpretation of his 14 circumstances [which were] … not based in actual events.”); Abel v. Trump, No. CV 20- 15 00075 LEK-WRP, 2020 WL 2530310, at *2 (D. Haw. May 18, 2020) (dismissing 16 prisoner’s “irrational and wholly incredible” claims that “President Trump personally 17 came to Kauai and withdrew bone marrow from both of his legs” as frivolous pursuant to 18 28 U.S.C. § 1915(e)(2) and § 1915A); Suess v. Obama, 2017 WL 1371289, at *2 (C.D. 19 Cal. Mar. 10, 2017) (dismissing as frivolous complaint alleging conspiracy among 20 President, CIA, and FBI to torment plaintiff over six year period); Frost v. Vasan, No. 21 16-CV-05883 NC, 2017 WL 2081094, at *1 (N.D. Cal. May 15, 2017) (dismissing as 22 23 4 In fact, to the extent Franklin also seeks his “immediate release,” (see Compl. at 7), he may not proceed 24 pursuant to 42 U.S.C. § 1983 at all. When a state prisoner challenges the legality of his custody and the 25 relief he seeks is a determination that he is entitled to an earlier or immediate release, such a challenge is not cognizable under 42 U.S.C. § 1983; his sole federal remedy is a petition for a writ of habeas corpus. 26 See Preiser v. Rodriguez, 411 U.S. 475, 489‒500 (1973) (holding that a writ of habeas corpus is “explicitly and historically designed” to provide a state prisoner with the “exclusive” means to “attack the validity of 27 his confinement” in federal court); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of 28 1 frivolous claims against a United States Senator, a university, two corporate entities, and 2 additional unspecified defendants for having allegedly conspired with a secret elite group 3 of businessmen and the CIA to torment him); Sierra v. Moon, 2012 WL 423483, at *2 4 (E.D. Cal. Feb. 8, 2012) (dismissing as frivolous an alleged conspiracy by defendants 5 with ex-military and CIA to defraud plaintiffs’ interests and murder him); Demos v. 6 United States, 2010 WL 4007527, at *2 (D. Or. Oct. 8, 2010) (dismissing as frivolous 7 complaint alleging plaintiff was captured by pirates disguised as law enforcement 8 officers); Reid v. Mabus, 2015 WL 9855875, at *1 (D. Or. Nov. 16, 2015) (dismissing 9 complaint alleging a massive conspiracy targeting 300,000 individuals with “electronic 10 harassment”). 11 III. CONCLUSION AND ORDER 12 Accordingly, the Court: 13 1) GRANTS Franklin’s Motion to Proceed In Forma Pauperis pursuant to 28 14 U.S.C. § 1915(a) (ECF No. 2); 15 2) ORDERS the Secretary of the CDCR, or her designee, to collect from 16 Franklin’s trust account the $46.71 initial filing fee assessed, if those funds are available 17 at the time this Order is executed, and to forward whatever balance remains of the full 18 $350 owed in monthly payments in an amount equal to twenty percent (20%) of the 19 preceding month’s income to the Clerk of the Court each time the amount in Johnson’s 20 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 21 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION; 22 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 23 on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 24 94283-0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov; 25 4) DISMISSES Franklin’s Complaint sua sponte and in its entirety as frivolous 26 27 28 1 || pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1);° 2 5) DENIES Franklin’s Motions for the U.S. District Court to Set Mandatory 3 || Settlement Conference and to Enforce Court Ordered Dismissals (ECF Nos. 11, 13) as 4 || moot; 5 6) CERTIFIES that an IFP appeal would not be taken in good faith pursuant 6 || to 28 U.S.C. § 1915(a)(3), and 7 7) DIRECTS the Clerk of the Court to enter a judgment of dismissal and to 8 close the file. 9 IT IS SO ORDERED. 10 Dated: December 7, 2021 <= 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9g ||° Because Franklin’s Complaint qualifies as frivolous, “there is by definition no merit to the underlying action and so no reason to grant leave to amend.” Lopez, 203 F.3d at 1127 n.8. 10