1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GREGORY SCOTT VAN HUISEN, No. 2:23-cv-00944-DJC-EFB (PC) 11 Plaintiff, 12 v. ORDER 13 JOSEPH R. BIDEN, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 17 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915, two motions to add defendants, and two motions 19 for appointment of counsel. 20 Leave to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 Motion for Appointment of Counsel 26 District courts lack authority to require counsel to represent indigent prisoners in section 27 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 28 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 1 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 2 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 3 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 4 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 5 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 6 the court finds there are no exceptional circumstances in this case. 7 Screening Standards 8 Notwithstanding payment of the filing fee, the court must screen plaintiff’s complaint in 9 accordance with 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the 10 complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to 11 state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who 12 is immune from such relief.” Id. § 1915A(b). 13 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 14 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 15 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 16 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 17 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 18 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 19 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 20 U.S. 662, 679 (2009). 21 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 22 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 23 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 24 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 25 678. 26 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 27 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 28 content that allows the court to draw the reasonable inference that the defendant is liable for the 1 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 2 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 3 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 4 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 5 Discussion 6 Plaintiff’s complaint includes among its numerous defendants President Joe Biden and 7 CIA Director William Burns. In an improperly filed supplement to the complaint, plaintiff 8 attempts to add as defendants Hunter Biden, Ron DeSantis, Donald Trump, and Marco Rubio. 9 ECF No. 8. The extravagant allegations are largely incoherent and read as a list of conclusory 10 terms and meandering phrases strung together. For example, Claim I, which is representative of 11 the three additional claims alleged, reads as follows: 12 Civil Conspiracy! Discrimination towards integration, reversing posterity of 13 breakthrough on the Civil Rights Act. Entering into segregation while discriminating against minorities under color of state law, with irreparable harm 14 and vicarious liability. Allowing the connon [sic] enemy to resurface, after already breaking ground in passage. See Psalm 104:9 “You have set a boundary 15 that they may not pass over, that they may not return to cover the earth.[”] Proverbs 22:28 “Remove not thy ancient boundary mark which you[r] fathers have 16 set.[”] Passage is remedy for color of state law. This only happens through insurrection, or violation of sworn oaths. Lost leader. See Exodus 23:8 for cause 17 of action remedy, cause or action for sic rights while practicing ancient hate, bleeding lawlessness “and you shall take no bribe, for a bribe blinds the discerning 18 and prevents the words of the righteous.[”] 19 ECF No. 1 at 8. The complaint is largely incomprehensible, lacks substance and fails to specify 20 how any particular defendant was involved in violating plaintiff’s federal statutory or 21 constitutional rights. As drafted, the complaint presents no cognizable federal claim. 22 A complaint that is frivolous, malicious, or fails to state a claim cannot survive screening 23 under section 1915A(b) and must be dismissed. A claim is frivolous “when the facts alleged arise 24 to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable 25 facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also 26 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding that “§ 1915(d)’s term ‘frivolous,’ when 27 applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful 28 factual allegation.”). Plaintiff’s allegations are indecipherable and, as currently drafted, frivolous.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GREGORY SCOTT VAN HUISEN, No. 2:23-cv-00944-DJC-EFB (PC) 11 Plaintiff, 12 v. ORDER 13 JOSEPH R. BIDEN, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 17 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915, two motions to add defendants, and two motions 19 for appointment of counsel. 20 Leave to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 Motion for Appointment of Counsel 26 District courts lack authority to require counsel to represent indigent prisoners in section 27 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 28 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 1 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 2 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 3 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 4 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 5 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 6 the court finds there are no exceptional circumstances in this case. 7 Screening Standards 8 Notwithstanding payment of the filing fee, the court must screen plaintiff’s complaint in 9 accordance with 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the 10 complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to 11 state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who 12 is immune from such relief.” Id. § 1915A(b). 13 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 14 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 15 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 16 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 17 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 18 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 19 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 20 U.S. 662, 679 (2009). 21 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 22 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 23 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 24 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 25 678. 26 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 27 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 28 content that allows the court to draw the reasonable inference that the defendant is liable for the 1 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 2 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 3 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 4 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 5 Discussion 6 Plaintiff’s complaint includes among its numerous defendants President Joe Biden and 7 CIA Director William Burns. In an improperly filed supplement to the complaint, plaintiff 8 attempts to add as defendants Hunter Biden, Ron DeSantis, Donald Trump, and Marco Rubio. 9 ECF No. 8. The extravagant allegations are largely incoherent and read as a list of conclusory 10 terms and meandering phrases strung together. For example, Claim I, which is representative of 11 the three additional claims alleged, reads as follows: 12 Civil Conspiracy! Discrimination towards integration, reversing posterity of 13 breakthrough on the Civil Rights Act. Entering into segregation while discriminating against minorities under color of state law, with irreparable harm 14 and vicarious liability. Allowing the connon [sic] enemy to resurface, after already breaking ground in passage. See Psalm 104:9 “You have set a boundary 15 that they may not pass over, that they may not return to cover the earth.[”] Proverbs 22:28 “Remove not thy ancient boundary mark which you[r] fathers have 16 set.[”] Passage is remedy for color of state law. This only happens through insurrection, or violation of sworn oaths. Lost leader. See Exodus 23:8 for cause 17 of action remedy, cause or action for sic rights while practicing ancient hate, bleeding lawlessness “and you shall take no bribe, for a bribe blinds the discerning 18 and prevents the words of the righteous.[”] 19 ECF No. 1 at 8. The complaint is largely incomprehensible, lacks substance and fails to specify 20 how any particular defendant was involved in violating plaintiff’s federal statutory or 21 constitutional rights. As drafted, the complaint presents no cognizable federal claim. 22 A complaint that is frivolous, malicious, or fails to state a claim cannot survive screening 23 under section 1915A(b) and must be dismissed. A claim is frivolous “when the facts alleged arise 24 to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable 25 facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also 26 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding that “§ 1915(d)’s term ‘frivolous,’ when 27 applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful 28 factual allegation.”). Plaintiff’s allegations are indecipherable and, as currently drafted, frivolous. 1 In an abundance of caution, plaintiff will be given the opportunity to amend his complaint 2 to cure the deficiencies. 3 Leave to Amend 4 Plaintiff’s complaint is dismissed with leave to amend.1 If plaintiff chooses to file an 5 amended complaint it should observe the following: 6 Any amended complaint must identify as a defendant only persons who personally 7 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 8 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 9 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 10 legally required to do that causes the alleged deprivation). The complaint should also describe, 11 in sufficient detail, how each defendant personally violated or participated in the violation of his 12 rights. The court will not infer the existence of allegations that have not been explicitly set forth 13 in the amended complaint. 14 The amended complaint must contain a caption including the names of all defendants. 15 Fed. R. Civ. P. 10(a). 16 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 17 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 18 Any amended complaint must be written or typed so that it so that it is complete in itself 19 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 20 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 21 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 22 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 23 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 24 1967)). 25 ///// 26 ///// 27
28 1 Accordingly, plaintiff’s motions to add defendants (ECF No. 15) are DENIED as moot. ] Finally, the court notes that any amended complaint should be as concise as possible in 2 | fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 3 || procedural or factual background which has no bearing on his legal claims. 4 Conclusion 5 Accordingly, IT IS ORDERED that: 6 1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) is GRANTED; 7 2. Plaintiffs motions for the appointment of counsel (ECF Nos. 11 & 19) are DENIED 8 without prejudice; 9 3. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 10 accordance with the notice to the custodial agency filed concurrently herewith; 11 4. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend within 30 days 12 from the date of service of this order; 13 5. Plaintiff's motions to add defendants (ECF Nos. 15 & 18) are DENIED as moot; and 14 6. Failure to comply with this order may result in dismissal of this action for the reasons 15 stated herein. 16 17 | DATED: August 9, 2023. gS Veter f i hb LM A 18 EDMUND F. BRENNAN 9 UNITED STATES MAGISTRATE JUDGE
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