Davis v. Breed

Opinion

1 2 3

Case No. 19-cv-03419-PJH 8 Plaintiff,

9 v. ORDER DISMISSING ACTION WITH PREJUDICE Re: Dkt. Nos. 17, 19 11 Defendant. 12

13 14 Pending before the court is plaintiff Jimmy Lee Davis’s amended complaint. 15 Because plaintiff has been granted permission to proceed in this action in forma pauperis 16 (“IFP”) (Dkt. 5), the court reviews his complaint pursuant to 28 U.S.C. § 1915. That 17 review “accords judges . . . the unusual power to pierce the veil of the complaint's factual 18 allegations and dismiss those claims whose factual contentions are clearly 19 baseless.” Denton v. Hernandez, 504 U.S. 25, 32–33 (1992) (“a finding of factual 20 frivolousness is appropriate when the facts alleged rise to the level of the irrational or the 21 wholly incredible”) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). “[C]laims 22 describing fantastic or delusional scenarios” are clearly baseless. Id. 23 On August 13, 2019, this court dismissed plaintiff’s original complaint as frivolous, 24 with leave to amend. Dkt. 15. That order described plaintiff’s original complaint, which 25 alleged a fantastic or delusional wide-ranging conspiracy between the mayor of San 26 Francisco, her son, the FBI, the SWAT Team, Magistrate Judge Beeler, and others to 27 defraud and murder him. See id. On August 22, 2019, plaintiff filed an amended 1 September 11, 2019, plaintiff made another filing, without a caption, claiming to be a 2 paper “amending his complaint in the above captioned case[.]” Dkt. 19. Because plaintiff 3 amended his complaint on August 22, plaintiff’s attempt to file a second amended 4 complaint without leave of court was improper. See Fed. R. Civ. P. 15(a)(2). 5 Accordingly, the first amended complaint filed on August 22 is the operative complaint in 6 this action, and the court hereby STRIKES the filing located at Docket Number 19. 7 The operative, first amended complaint brought against the City of San Francisco 8 repeats the same allegations underlying plaintiff’s previously-dismissed complaint. See 9 Dkt. 17. He again alleges that Mayor Breed, the SWAT Team, and others “did fire upon 10 him from downtown San Francisco to Bayview and Fillmore Districts – in an attempt to 11 assassinate and intimidate him with lethal weapons[.]” Id. at 1–2. The complaint 12 continues, largely through invective, to allege the same type of vague, wide-ranging 13 conspiracy that formed the basis of his original complaint. Simply put, the amended 14 complaint is little-changed from the original, and it is frivolous for the same reasons. 15 Rather than addressing these problems, which the court identified in its order 16 dismissing the original complaint with leave to amend, plaintiff instead argues that his 17 original complaint was correct, and that characterizing it as “delusional” was racist and 18 disrespectful. Id. 19 Given that plaintiff has had ample opportunity to amend his complaint, and 20 because he has not demonstrated any likelihood that he could allege facts stating a non- 21 frivolous claim even if given further opportunity, this action is DISMISSED WITH 24 Dated: December 13, 2019 25 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 26 United States District Judge