Manuel Ollarsaba v. Unknown

• Court: District Court, C.D. California
• Decided: January 7, 2022
• Docket: 5:21-cv-01896
• Status: Unknown

Opinion

Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 1 of 7 Page ID #:53

1 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5

6 7 MANUEL OLLARSABA, Case No. 5:21-cv-1896-SVW (MAR) 8 Plaintiff, ORDER SUMMARILY DISMISSING 9 FIRST AMENDED COMPLAINT v. 10 UNKNOWN, 11 Defendant. 12 13 I. 14 INTRODUCTION 15 On November 3, 2021, Manuel Ollarsaba (“Plaintiff”), proceeding pro se, 16 constructively filed1 a Complaint (“Complaint”). ECF Docket No. (“Dkt.”) 1. On 17 November 16, 2021, the Court dismissed the Complaint with leave to amend. Dkt. 4. 18 On December 10, 2021, Plaintiff filed a First Amended Complaint (“FAC”). Dkt. 6. 19 For the reasons discussed below, the Court dismisses the FAC without leave to 20 amend and without prejudice. 21 /// 22 /// 23 /// 24 /// 25

26 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to 27 court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 28 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 2 of 7 Page ID #:54

1 II. 2 BACKGROUND 3 On November 3, 2021, Manuel Ollarsaba (“Plaintiff”), proceeding pro se, 4 constructively filed a Complaint (“Complaint”). Dkts. 1, 5.2 On November 16, 2021, 5 the Court dismissed the Complaint with leave to amend because it was unclear and 6 therefore failed to state a claim or comply with Fed. R. of Civ. P. 8. Dkt. 4. On 7 December 10, 2021, Plaintiff filed a First Amended Complaint (“FAC”). Dkt. 6. 8 III. 9 STANDARD OF REVIEW 10 Where a plaintiff is incarcerated a court must screen the complaint under 28 11 U.S.C. § 1915A and is required to dismiss the case at any time if it concludes the 12 action is frivolous or malicious, fails to state a claim on which relief may be granted, 13 or seeks monetary relief against a defendant who is immune from such relief. 28 14 U.S.C. § 1915A; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 15 Dismissal for failure to state a claim can be warranted based on either a lack of 16 a cognizable legal theory or the absence of factual support for a cognizable legal 17 theory. See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 18 Cir. 2008). Although the plaintiff must provide “more than labels and conclusions,” 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “[s]pecific facts are not 20 necessary; the [complaint] need only give the defendant[s] fair notice of what the . . . 21 claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 22 (2007) (per curiam) (citations and quotation marks omitted). 23

24 2 On December 13, 2021, the Court received a filing from Plaintiff and docketed it as a Response to Order Dismissing Complaint with Leave to Amend. Dkt. 5. However, upon review, it appears that 25 this filing was intended to be the substantive portion of the original complaint: it contains a caption page and is dated November 2, 2021, one (1) day before the date on the one-page filing that this 26 Court originally construed as the Complaint. Id. at 1. It is not clear why this portion of the 27 Complaint was received so much later. Regardless, it suffers from the same deficiencies as both the First Amended Complaint and the November 3, 2021 filing that the Court originally construed as 28 the Complaint. For clarity and ease of reference, this Order refers to both Dkt. 1 and Dkt. 5 together as the Complaint. 2 Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 3 of 7 Page ID #:55

1 In considering whether a complaint states a claim, a court must accept as true 2 all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892–93 3 (9th Cir. 2011). However, a court need not accept as true “allegations that are merely 4 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 5 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The court must also 6 construe the pleading in the light most favorable to the pleading party and resolve all 7 doubts in the pleader’s favor. See, e.g., Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 8 2005). Pro se pleadings are “to be liberally construed” and are held to a less stringent 9 standard than those drafted by a lawyer. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 10 2010) (“Iqbal incorporated the Twombly pleading standard and Twombly did not 11 alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se 12 filings liberally when evaluating them under Iqbal.”). 13 However, a pro se complaint may be dismissed as frivolous if “the facts alleged 14 rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 504 15 U.S. 25, 26 (1992). The term “ ‘frivolous,’ when applied to a complaint, embraces not 16 only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke 17 v. Williams, 490 U.S. 319, 325 (1989). 18 If a court finds the complaint should be dismissed for failure to state a claim, a 19 court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 20 F.3d 1122, 1126–30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it 21 appears possible the defects in the complaint could be corrected, especially if the 22 plaintiff is pro se. Id. at 1130–31; see also Cato v. United States, 70 F.3d 1103, 1106 23 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 24 be cured by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d 25 at 1105, 1107–11. 26 /// 27 /// 28 /// 3 Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 4 of 7 Page ID #:56

1 IV. 2 DISCUSSION 3 A. THE COMPLAINT FAILS TO STATE A CLAIM OR COMPLY WITH 4 RULE 8 5 1. Applicable law 6 Rule 8 requires a complaint contain “a short and plain statement of the claim 7 showing that the pleader is entitled to relief” and “a demand for the relief sought.” 8 Fed. R. Civ. P. 8. Rule 8(a) “requires a ‘showing,’ rather than a blanket assertion, of 9 entitlement to relief.” See Twombly, 550 U.S. at 555. “[T]he ‘short and plain 10 statement’ [required by Rule 8] must provide the defendant with ‘fair notice of what 11 the plaintiff’s claim is and the grounds upon which it rests.’ ” Dura Pharms., Inc. v. 12 Broudo, 544 U.S. 336, 346 (2005). 13 A court may dismiss a complaint because it is unintelligible or frivolous “where 14 it lacks an arguable basis either in law or in fact.” Williams, 490 U.S. at 325. Further, 15 Rule 8 requires that a complaint clearly establish the claims and parties such that a 16 defendant would have “no difficulty in responding to the claims with an answer 17 and/or with a Rule 12(b)(6) motion to dismiss.” Hearns v. San Bernardino Police 18 Dep’t, 530 F.3d 1124, 1131–32 (9th Cir. 2008); Conley v. Gibson, 355 U.S. 41, 47 19 (1957). 20 2. Analysis 21 Here, like the Complaint, the FAC provides nothing that could be construed as 22 a cause of action or claim for relief, even when construed liberally. Under “CLAIM 23 I” in the “CLAIMS” section of the Civil Rights Complaint form, Plaintiff writes as 24 follows: 25 Multiple issues of harassment daily with no physical contact of trouble shooting signal low current electrical device’s of government apparatus – 26 equipment of science technology hitting the anatomy (body) to disturb the 27 physical-mental stability multiple internal structure (inner) movement of abnormal chemical imbalance of invisible function due to the processing 28 + manufacture’s companies not following FDA regulation requirements 4 Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 5 of 7 Page ID #:57

for quality control – of environmental solution of liquids – solids form 1 not for table usage. The reason for grievance @ the Robert Preseley 2 Detention Center was to notified [sic] them of past + present issue due to mental health of no major illness of negative diagnosis of abnormal issue 3 due to kitchen food + KeefeNet – work of the product of activity due to 4 the substance being grounded to body consuming (toxic) press and neglecting situation etcetera. 5 6 Dkt. 6 at 5. Not only is Plaintiff’s claim largely unintelligible, but any comprehensible 7 factual allegations appear “irrational or wholly incredible.” Denton, 504 U.S. at 26 8 Furthermore, Plaintiff identifies no Defendants. Under the corresponding 9 section in the Civil Rights Complaint form, Plaintiff simply writes “unknown.” Dkt. 6 10 at 3. Later in the FAC, Plaintiff appears to identify “Riverside County Sheriff’s 11 Department (unknown) personnal’s [sic]” as a Defendant. Id. at 6. Plaintiff also lists 12 various other individuals and entities throughout the FAC, including former Secretary 13 of Defense Colin Powell, the CIA, NASA, Channel 7 Eyewitness News, “Major 14 Holiday,” TMZ, and the FDA. Id. at 7. It is unclear whether Plaintiff intended to 15 name any or all of these individuals as Defendants, nor is it clear how any of them are 16 involved in Plaintiff’s allegations. 17 Finally, under the “REQUEST FOR RELIEF” section on the Civil Rights 18 Complaint form, Plaintiff writes as follows: 19 Immediately Assistance (“Help” 911) * I am entitled to better resource and more advance’s (technology) 20 facilities due to special condition of treatment that should be a first prior on the list for my mental + physical condition of health issue instead of 21 sitting in a jail with no therapy and analyze + monitoring to endanger my 22 life with neglecting my information with no obligation time @ the moment due to further evaluation I have no time to wait I need 23 immediately help from professional doctor I am being hit from distance 24 with some kind of a device used by government agencies – apparatus – equipment hitting with low-current electrical running through anatomy of 25 abnormal feels through product of activity which is the category of FDA 26 Regulation of government harassment and biological terrorist. Call Paul T. Raudenbush – NASA - …Channel 7 Eyewitness New Investigation - 27 … -Congress Man – Mark Takano… 28 5 Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 6 of 7 Page ID #:58

* I am entitled to a federal attorney to address my issue that I know my 1 rights and the constitution has been violated through government 2 agencies + multiple organization going with technology equipment with the policy of quality and patience safety policae [sic] @ the American 3 Hospital Association – US Center for Disease Control – Prevention – 4 Negative diagnosis of any major illness (no COVID 19) Refer – Primary Doctor Lisa Block… 5 6 Id. at 6. Plaintiff’s request for help and medical assistance is troubling. However, the 7 Court is powerless to grant any type of relief without a discernible and meritorious 8 underlying claim. Furthermore, here, the FAC appears entirely based on fanciful 9 allegations and therefore must be summarily dismissed.3 10 B. THE COMPLAINT SHOULD BE DISMISSED WITHOUT LEAVE 11 TO AMEND 12 As discussed above, the Complaint fails to state a claim on which relief may be 13 granted. See above, subsections IV.A. Despite being given an opportunity to correct 14 the specific deficiencies the Court identified in the ODLA, Dkt. 4, Plaintiff was 15 unable to correct them. 16 Plaintiff’s inability to draft an intelligible complaint shows leave to amend 17 would be futile. See Pearce v. LA Cty. Jail Peace Officer/Corr. Officer, No. CV 17- 18 8092 JLS (JC), 2018 WL 3339646, at *2 (C.D. Cal. July 5, 2018) (finding where 19

20 3 Additionally, to the extent Plaintiff requests appointment of counsel, his request must be DENIED. 21

There is no constitutional right to appointed counsel in civil rights actions. Storseth v. Spellman, 22 654 F.2d 1349, 1353 (9th Cir. 1981). A court has no direct way to pay appointed counsel and cannot 23 compel an attorney to represent a plaintiff. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 301-10, 109 S. Ct. 1814, 104 L. Ed. 2d 318 (1989). In exceptional circumstances, a court may request 24 counsel to voluntarily provide representation. 28 U.S.C. § 1915(e)(1); see Mallard, 490 U.S. at 301- 10. To decide whether “exceptional circumstances” exist, a court evaluates both the likelihood of a 25 plaintiff’s success on the merits and plaintiff’s ability to articulate claims pro se. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 26

27 Here, while Plaintiff does show an inability to articulate his claims, he has not shown any likelihood of success on the merits. In fact, as noted above, his claims appear frivolous and subject to 28 summary dismissal. Accordingly, not only has Plaintiff failed to show a likelihood of success on the merits that would justify the appointment of counsel, but the request appears moot. 6 Case]5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 7of7 Page ID #:59

1 | plaintiff is “unwilling to draft a complaint that states viable claims for relief [the 2 | Court] deems such failure an admission that amendment is futile”). Accordingly, the 3 | Complaint should be dismissed without leave to amend. See Ismail v. Cty. of Orange, 4 | 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (“[A] district court’s discretion over 5 | amendments is especially broad ‘where the court has already given a plaintiff one or 6 | more opportunities to amend his complaint.’ ”) (quoting DCD Programs, Ltd. v. 7 | Leighton, 833 F.2d 183, 186 n.3 Oth Cir. 1987)).4 8 V. 9 CONCLUSION 10 IT IS THEREFORE ORDERED that this action is DISMISSED without 11 | leave to amend and without prejudice. 12 Dated: January 7, 2022 — £4 £187" 13 J y ae Lgfohey / FF hee fy HON. STEPHEN V. WILSON 14 United States District Judge 15 | Presented by: 16 A : V7) MARGO A. ROCCONI 18 | United States Magistrate Judge 19 20 21 22 23 |, . . The Court also notes that Plaintiff has yet to pay the filing fee or request to proceed in forma 24 | pauperis (“IFP”), which could provide independent justification for dismissing the action if Plaintiff failed to pay or file a request to proceed IFP after a warning from the Court. Dkt. 3; see McGuire v. 25 | United States, No. 5:18-2370-JVS (JPR), 2019 WL 1585199, at *1 (C.D. Cal. Apr. 12, 2019) (noting a % court may dismiss a prisoner’s civil rights action for failure to pay the initial filing fee or fails to respond to an order to show cause regarding his filing fee). However, at this point, issuing such a 97 | warning would be a waste of both Plaintiff's and the Court’s time, because even if Plaintiff were to pay the fee or apply to proceed IFP, Plaintiffs claims appear wholly frivolous and therefore would 28 | be subject to dismissal regardless.