Franklin v. State of Nevada ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 TERON FRANKLIN, Case No. 3:18-cv-00522-MMD-CBC 6 Plaintiff, SCREENING ORDER 7 v. 8 STATE OF NEVADA, et al., 9 Defendants. 10 11 Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), 12 has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983, and has filed both an 13 application to proceed in forma pauperis, and an amended motion for permanent 14 injunction. (ECF Nos. 1-1, 1-2, 4, 5.) The Court now screens Plaintiff’s civil rights 15 complaint pursuant to 28 U.S.C. § 1915A and addresses the motions. 16 I. IN FORMA PAUPERIS APPLICATION 17 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 5.) Based 18 on the information Plaintiff provided regarding his financial status, the Court finds that 19 Plaintiff is not able to pay an initial installment payment toward the full filing fee pursuant 20 to 28 U.S.C. § 1915. Plaintiff will, however, be required to make monthly payments toward 21 the full $350.00 filing fee when he has funds available. 22 II. SCREENING STANDARD 23 Federal courts must conduct a preliminary screening in any case in which a 24 prisoner seeks redress from a governmental entity or officer or employee of a 25 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any 26 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 27 upon which relief may be granted, or seek monetary relief from a defendant who is 1 must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 2 Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 3 elements: (1) the violation of a right secured by the Constitution or laws of the United 4 States, and (2) that the alleged violation was committed by a person acting under color 5 of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 6 In addition to the screening requirements under § 1915A, pursuant to the Prison 7 Litigation Reform Act (“PLRA”), a federal court must dismiss a prisoner’s claim, if “the 8 allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a 9 claim on which relief may be granted, or seeks monetary relief against a defendant who 10 is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure 11 to state a claim upon which relief can be granted is provided for in Federal Rule of Civil 12 Procedure 12(b)(6), and the Court applies the same standard under § 1915 when 13 reviewing the adequacy of a complaint or an amended complaint. When a court dismisses 14 a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint 15 with directions as to curing its deficiencies, unless it is clear from the face of the complaint 16 that the deficiencies could not be cured by amendment. See Cato v. United States, 70 17 F.3d 1103, 1106 (9th Cir. 1995). 18 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 19 Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure 20 to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 21 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 22 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all 23 allegations of material fact stated in the complaint, and the Court construes them in the 24 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 25 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 26 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 27 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 1 must provide more than mere labels and conclusions. See Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 3 insufficient. See id. 4 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 5 that, because they are no more than mere conclusions, are not entitled to the assumption 6 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 7 the framework of a complaint, they must be supported with factual allegations.” Id. “When 8 there are well-pleaded factual allegations, a court should assume their veracity and then 9 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 10 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 11 requires the reviewing court to draw on its judicial experience and common sense.” Id. 12 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed 13 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This 14 includes claims based on legal conclusions that are untenable (e.g., claims against 15 defendants who are immune from suit or claims of infringement of a legal interest which 16 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 17 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); 18 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 19 III. SCREENING OF COMPLAINT 20 Plaintiff has filed a 136-page complaint, excluding exhibits, against multiple 21 defendants. (See ECF No. 1-1 at 1-129; ECF No. 1-2 at 1-7.) Although the complaint is 22 difficult to understand, it appears that “the Government is using a [satellite] or a radar dish 23 to beam on [Plaintiff’s] body, in which [Plaintiff is] being spoken to in [his] head hearing 24 sound air waves.” (ECF No. 1-1 at 14.) Plaintiff further alleges the following. Plaintiff has 25 lead poisoning which makes him “feel electricity and a large moving bubble in [his] head 26 as others seem to be trying to move it [through his] brain, energizing [him] so [he] can 27 remain talking as if [he is] some human phone.” (Id. at 15.) The Secret Service, military, 1 and FBI are trying to “burn whatever it has in” Plaintiff. (Id. at 16.) Plaintiff hears buzzing 2 signal sounds around him because the military or FBI are using satellite or dish radar to 3 talk to Plaintiff. (Id. at 20.) Additionally, someone is plugging a chip into Plaintiff’s 4 television set to open a television porthole to permit electricity to shoot into Plaintiff which 5 has Plaintiff talking and hearing things. (Id. at 25.) Prison officials are also placing acid, 6 PCP, and an aluminum tasting substance in his food causing Plaintiff to become very 7 sick. (Id. at 35.) Plaintiff is a human computer that has had some sort of military gadgets 8 inflicted upon him via satellite or radar dish. (Id. at 43.) Plaintiff appears to be alleging 9 violations of his First, Fifth, and Eighth Amendment rights. (See generally ECF No. 1-1.) 10 The Court finds that Plaintiff’s factual allegations are fanciful, i.e. fantastic or 11 delusional scenarios. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also 12 McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). The allegations that the 13 government is sending electric waves to Plaintiff via satellite to talk to him are fanciful and 14 delusional and lack an arguable basis in fact. As such, the Court dismisses the entire 15 complaint with prejudice as amendment would be futile. 16 IV. CONCLUSION 17 It is therefore ordered that Plaintiff’s application to proceed in forma pauperis (ECF 18 No. 5) without having to prepay the full filing fee is granted. Plaintiff is not required to pay 19 an initial installment fee. Nevertheless, the full filing fee will be due, pursuant to 28 U.S.C. 20 § 1915, as amended by the PLRA. The movant herein is permitted to maintain this action 21 to conclusion without the necessity of prepayment of fees or costs or the giving of security 22 therefor. This order granting in forma pauperis status does not extend to the issuance 23 and/or service of subpoenas at government expense. 24 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the PLRA, 25 the Nevada Department of Corrections will pay to the Clerk of the United States District 26 Court, District of Nevada, 20% of the preceding month’s deposits to the account of Teron 27 Franklin, #60567 (in months that the account exceeds $10.00) until the full $350 filing 1 fee has been paid for this action. The Clerk of Court is directed to send a copy of this 2 order to the attention of Chief of Inmate Services for the Nevada Department of 3 Prisons, P.O. Box 7011, Carson City, NV 89702. 4 It is further ordered that, even if this action is dismissed, or is otherwise 5 unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. §1915, as amended 6 by the PLRA. 7 It is further ordered that the Clerk of Court file the complaint (ECF Nos. 1-1, 1-2). 8 It is further ordered that the Clerk of Court dismiss the complaint (ECF Nos. 1-1, 9 1-2) in its entirety, with prejudice, as amendment would be futile. 10 It is further ordered that the motion for permanent injunction (ECF No. 4) is denied 11 as moot. 12 It is further ordered that this Court certifies that any in forma pauperis appeal from 13 this order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). 14 It is further ordered that the Clerk of Court enter judgment accordingly and close 15 this case. 16 DATED THIS 6th day of August 2019. 17 18 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27