1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 Chris Gremmels, Case No. 21-cv-06104-LB
12 Plaintiff, ORDER SCREENING COMPLAINT 13 v. WITH LEAVE TO AMEND
14 Emersons Sport Training and Fitness, Re: ECF No. 1 15 Defendant. 16 17 INTRODUCTION 18 The plaintiff, Chris Gremmels, who represents himself in this action and is proceeding in 19 forma pauperis, sued Emersons Sport Training and Fitness for violating “presumably a civil right 20 to protect from stealth sex or drug agent schemes, legal or criminal, in employment OR a fair an 21 explicit punishment immediately.” Before directing the United States Marshal to serve the 22 defendant with the complaint, the court must screen it for minimal legal viability. 28 U.S.C. § 23 1915(e)(2)(B). The complaint not only does not raise a federal claim but also fails to state a claim 24 upon which relief may plausibly be granted. The court gives the plaintiff leave to amend the 25 complaint by September 6, 2021. 26 27 1 STATEMENT 2 The plaintiff alleges that he began working at Emersons in 1999,1 and in 2001 engaged in 3 “public sex with a fellow trainer and then a positive response to a surprising and unbidden offer of 4 MDMA by another fellow trainer.”2 He then claims that “the building, the ground, or client 5 contact, or all 3, transmitted narcotics to me.” Ultimately, the complaint alleges the “problematic 6 drug influences of building, land, and client . . . ruined my life.” 7 8 ANALYSIS 9 1. Sua Sponte Screening – 28 U.S.C. § 1915(e)(2) 10 A complaint filed by any person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is 11 subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is 12 frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary 13 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. 14 Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 15 (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint 16 make and rule on its own motion to dismiss before directing the United States Marshals to serve 17 the complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127. The Ninth 18 Circuit has noted that “[t]he language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule 19 of Civil Procedure 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). As the 20 Supreme Court has explained, “[the in forma pauperis statute] is designed largely to discourage 21 the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying 22 litigants generally do not initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 23 U.S. 319, 327 (1989). 24 “Frivolousness” within the meaning of the in forma pauperis standard of 28 U.S.C. § 1915(d) 25 and failure to state a claim under Rule 12(b)(6) are distinct concepts. 26 27 1 Compl., ECF No. 1 at 3. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 “A complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.” Denton 2 v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke, 490 U.S. at 325). The definition of 3 frivolousness “embraces not only the arguable legal conclusion, but also the fanciful factual 4 allegation.” Neitzke, 490 U.S. at 325. When determining whether to dismiss a complaint as 5 “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(i), the court has “‘the unusual power to pierce the 6 veil of the complaint’s factual allegations,’” meaning that the court “is not bound, as it usually is 7 when making a determination based solely on the pleadings, to accept without question the truth 8 of the plaintiff’s allegations.” Denton, 504 U.S. at 32 (quoting Neitzke, 490 U.S. at 327). Frivolous 9 claims include “‘claims describing fantastic or delusional scenarios, claims with which federal 10 district judges are all too familiar.’” Id. (quoting Neitzke, 490 U.S. at 328). “An in forma pauperis 11 complaint may not be dismissed . . . simply because the court finds the plaintiff’s allegations 12 unlikely.” Id. at 33. But “a finding of factual frivolousness is appropriate when the facts alleged 13 rise to the level of the irrational or the wholly incredible, whether or not there are judicially 14 noticeable facts available to contradict them.” Id. As the Ninth Circuit has explained, frivolous 15 litigation “is not limited to cases in which a legal claim is entirely without merit . . . . [A] person 16 with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that 17 are grossly exaggerated or totally false.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 18 1060–61 (9th Cir. 2007). 19 Under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint 20 if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint 21 include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a 22 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a 23 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 24 quotation marks omitted); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 25 complaint need not contain “detailed factual allegations,” but the plaintiff must “provide the 26 grounds of his entitlement to relief,” which “requires more than labels and conclusions”; a mere 27 “formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 1 In determining whether to dismiss a complaint under Rule 12(b)(6), the court is ordinarily 2 limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 3 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable 4 inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. 5 Co., 80 F.3d 336, 337–38 (9th Cir. 1996).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 Chris Gremmels, Case No. 21-cv-06104-LB
12 Plaintiff, ORDER SCREENING COMPLAINT 13 v. WITH LEAVE TO AMEND
14 Emersons Sport Training and Fitness, Re: ECF No. 1 15 Defendant. 16 17 INTRODUCTION 18 The plaintiff, Chris Gremmels, who represents himself in this action and is proceeding in 19 forma pauperis, sued Emersons Sport Training and Fitness for violating “presumably a civil right 20 to protect from stealth sex or drug agent schemes, legal or criminal, in employment OR a fair an 21 explicit punishment immediately.” Before directing the United States Marshal to serve the 22 defendant with the complaint, the court must screen it for minimal legal viability. 28 U.S.C. § 23 1915(e)(2)(B). The complaint not only does not raise a federal claim but also fails to state a claim 24 upon which relief may plausibly be granted. The court gives the plaintiff leave to amend the 25 complaint by September 6, 2021. 26 27 1 STATEMENT 2 The plaintiff alleges that he began working at Emersons in 1999,1 and in 2001 engaged in 3 “public sex with a fellow trainer and then a positive response to a surprising and unbidden offer of 4 MDMA by another fellow trainer.”2 He then claims that “the building, the ground, or client 5 contact, or all 3, transmitted narcotics to me.” Ultimately, the complaint alleges the “problematic 6 drug influences of building, land, and client . . . ruined my life.” 7 8 ANALYSIS 9 1. Sua Sponte Screening – 28 U.S.C. § 1915(e)(2) 10 A complaint filed by any person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is 11 subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is 12 frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary 13 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. 14 Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 15 (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint 16 make and rule on its own motion to dismiss before directing the United States Marshals to serve 17 the complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127. The Ninth 18 Circuit has noted that “[t]he language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule 19 of Civil Procedure 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). As the 20 Supreme Court has explained, “[the in forma pauperis statute] is designed largely to discourage 21 the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying 22 litigants generally do not initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 23 U.S. 319, 327 (1989). 24 “Frivolousness” within the meaning of the in forma pauperis standard of 28 U.S.C. § 1915(d) 25 and failure to state a claim under Rule 12(b)(6) are distinct concepts. 26 27 1 Compl., ECF No. 1 at 3. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 “A complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.” Denton 2 v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke, 490 U.S. at 325). The definition of 3 frivolousness “embraces not only the arguable legal conclusion, but also the fanciful factual 4 allegation.” Neitzke, 490 U.S. at 325. When determining whether to dismiss a complaint as 5 “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(i), the court has “‘the unusual power to pierce the 6 veil of the complaint’s factual allegations,’” meaning that the court “is not bound, as it usually is 7 when making a determination based solely on the pleadings, to accept without question the truth 8 of the plaintiff’s allegations.” Denton, 504 U.S. at 32 (quoting Neitzke, 490 U.S. at 327). Frivolous 9 claims include “‘claims describing fantastic or delusional scenarios, claims with which federal 10 district judges are all too familiar.’” Id. (quoting Neitzke, 490 U.S. at 328). “An in forma pauperis 11 complaint may not be dismissed . . . simply because the court finds the plaintiff’s allegations 12 unlikely.” Id. at 33. But “a finding of factual frivolousness is appropriate when the facts alleged 13 rise to the level of the irrational or the wholly incredible, whether or not there are judicially 14 noticeable facts available to contradict them.” Id. As the Ninth Circuit has explained, frivolous 15 litigation “is not limited to cases in which a legal claim is entirely without merit . . . . [A] person 16 with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that 17 are grossly exaggerated or totally false.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 18 1060–61 (9th Cir. 2007). 19 Under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint 20 if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint 21 include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a 22 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a 23 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 24 quotation marks omitted); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 25 complaint need not contain “detailed factual allegations,” but the plaintiff must “provide the 26 grounds of his entitlement to relief,” which “requires more than labels and conclusions”; a mere 27 “formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 1 In determining whether to dismiss a complaint under Rule 12(b)(6), the court is ordinarily 2 limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 3 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable 4 inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. 5 Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court cannot assume, however, that “the [plaintiff] 6 can prove facts that [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State 7 Council of Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true 8 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 9 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 10 Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9 11 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro se plaintiff need only 12 provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns, 13 413 F.3d at 1043. He need not plead specific legal theories so long as sufficient factual averments 14 show that he may be entitled to some relief. Id. at 1041. 15 When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that 16 a district court should grant leave to amend even if no request to amend the pleading was made, 17 unless it determines that the pleading could not possibly be cured by the allegation of other facts.” 18 Lopez, 203 F.3d at 1130 (internal quotations omitted). 19 2. Application 20 The court does not have federal jurisdiction over what is at best a state-law claim against 21 Emersons. To the extent that a claim might exist, the plaintiff does not plausibly plead a claim. 22 First, federal-question jurisdiction exists only when a question of federal law is invoked. 28 23 U.S.C. § 1331; Enwere v. Racy, No. 13-cv-5541-JCS, 2014 WL 261458, at *3 (N.D. Cal. Jan. 23, 24 2014). Here, the complaint does not allege a violation of a federal law but only of “some civil right 25 or law [that] is intended to protect an employee from any or at least specifically problematic and 26 enslaving types of sex and drug schemes.”3 Thus there is no basis for finding federal-question 27 1 || jurisdiction. While the defendant does not allege jurisdiction based on diversity, it is also clear the 2 || court lacks jurisdiction based on diversity as the defendant is based in California.* 28 U.S.C. § 3 1332(a) (diversity jurisdiction requires the plaintiff and defendant not reside in the same state and 4 || the amount of damages alleged exceed $75,000). 5 Second, the plaintiff does not plausibly state a claim. Under the “law or right violated” section, 6 || he says only that “some civil right or law” protects him.* He does not allege any specific claim or 7 supporting factual allegations. This is insufficient. Tannenbaum v. Cal. Dep’t of Corrs. & Rehab., 8 Case No. 18-6770 WHA (PR), 2019 WL 469975, at *1 (N.D. Cal. Feb. 4, 2019) (Although 9 || “specific facts are not necessary,” the pleading must “give the defendant fair notice of what the 10 || claim is and the grounds upon which it rests”). He has not set forth “a short and plain statement of 11 the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1). 12 The court identifies these errors and gives the plaintiff an opportunity to amend. In any 5 13 amended complaint, the plaintiff must identify a basis for federal jurisdiction, outline each claim, 14 and state the specific facts and actors that relate to each claim. 3 15 CONCLUSION a 16 The court has identified the complaint’s deficiencies. The plaintiff may file an amended 3 17 complaint by September 6, 2021, if he can cure the deficiencies. If the plaintiff does not file an 18 amended complaint, the court will reassign the case to a district judge and recommend that the 19 || newly assigned judge dismiss the case. Alternatively, the plaintiff may also voluntarily dismiss 20 || this case by filing a one-page notice of voluntary dismissal, which will operate as a dismissal 21 without prejudice and allow him to pursue his claims later. 22 IT IS SO ORDERED. LAE 23 Dated: August 13, 2021 LAUREL BEELER 24 United States Magistrate Judge 25 26 27 “ECF No. | at 2 (Defendant’s alleged address is “5095 Telegraph Ave., Oakland CA 94609”). 28 || > ECFNo. 1 at 6.