(PC) Distin v. U.S. Army

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP CHRISTOPHER DISTIN, Case No. 2:25-cv-1883-JDP (P) 12 Plaintiff, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS 14 U.S. ARMY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action. The 18 allegations in the complaint are frivolous, and I recommend that the complaint be dismissed 19 without leave to amend. In light of the recommendation that this action be dismissed without 20 leave to amend, I also recommend that plaintiff’s application to proceed in forma pauperis be 21 denied.1 22 Screening and Pleading Requirements 23 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 24 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 25 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 26 1 “A district court may deny leave to proceed in forma pauperis at the outset if it appears 27 from the face of the proposed complaint that the action is frivolous or without merit.” Tripati v. First Nat’l Bank & Tr., 821 F.2d 1368, 1370 (9th Cir. 1987); Reece v. Washington, 310 F.2d 139, 28 140 (9th Cir. 1962). 1 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 2 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 3 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 4 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 5 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 6 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 8 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 9 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 10 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 11 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 12 n.2 (9th Cir. 2006) (en banc) (citations omitted). 13 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 14 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 15 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 16 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 17 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 18 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 19 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 20 Analysis 21 Plaintiff brings this action against the U.S. Army and the California Department of 22 Corrections and Rehabilitation (“CDCR”). ECF No. 1. He alleges that he has been tortured by 23 the Army with a top-secret military laser in his cell and that CDCR has been grossly negligent by 24 not investigating the Army. Id. at 3-4. Additionally, plaintiff seeks to bring a claim against an 25 unidentified District Judge for failing to investigate the Army. Id. at 5. 26 “[T]he United States may not be sued without its consent and that the existence of consent 27 is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Plaintiff 28 has the burden of showing a waiver of immunity, Holloman v. Watt, 708 F.2d 1399, 1401 (9th 1 Cir. 1983) (citation omitted), and has not done so here. The claims against the CDCR are 2 similarly barred by sovereign immunity because the prison is an arm of the state. See Howlett v. 3 Rose, 496 U.S. 356, 365 (1990) (the state and arms of the state “are not subject to suit under 4 § 1983” (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989))). Even if plaintiff could 5 name a proper defendant, the allegations in the complaint are fantastical. “[A] court may dismiss 6 a claim as factually frivolous only if the facts alleged are ‘clearly baseless,’ a category 7 encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’ As those words 8 suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of 9 the irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) 10 (internal citations omitted). The allegations are factually frivolous and have been rejected by this 11 court numerous times.2 See Distin v. U.S. Army, No. 1:20-cv-0860-AWI-SAB (P) (E.D. Cal.); 12 Distin v. U.S. Army, No. 2:23-cv-1369-WBS-AC (P) (E.D. Cal.); Distin v. U.S. Army, No. 2:23- 13 cv-1447-TLN-AC (P) (E.D. Cal.); Distin v. U.S. Army, No. 2:24-cv-1121-DAD-SCR (P) (E.D. 14 Cal.). 15 Accordingly, it is hereby ORDERED that the Clerk of Court is directed to assign a district 16 judge to this action. 17 Further, it is hereby RECOMMENDED that: 18 1. The complaint, ECF No. 1, be DISMISSED without leave to amend for failure to state 19 a claim; 20 2. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, be DENIED; and 21 3. The Clerk of Court be directed to close this action. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of 24 service of these findings and recommendations, any party may file written objections with the 25

2 The court notes that plaintiff appears to be a “Three-Striker” within the meaning of Title 26 28 U.S.C. § 1915(g). See Distin v. U.S. Army, No. 1:20-cv-0860-AWI-SAB (P) (E.D. Cal.); 27 Distin v. U.S. Army, No. 2:23-cv-1369-WBS-AC (P) (E.D. Cal.); Distin v. U.S. Army, No. 2:23- cv-1447-TLN-AC (P) (E.D. Cal.); Distin v. U.S. Army, No. 2:24-cv-1121-DAD-SCR (P) (E.D. 28 Cal.). 1 | court and serve a copy on all parties. Any such document should be captioned “Objections to 2 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 3 | within fourteen days of service of the objections. The parties are advised that failure to file 4 | objections within the specified time may waive the right to appeal the District Court’s order. See 5 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 6 | 1991). 7 g IT IS SO ORDERED.

Dated: _ July 31, 2025 aw—— 10 JEREMY D. PETERSON i UNITED STATES MAGISTRATE JUDGE

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