1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EUGENE KORTE, No. 2:19–cv–2428–TLN–KJN (PS) 12 Plaintiff, ORDER GRANTING IFP REQUEST AND STAYING CASE and 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS 14 STATE OF CALIFORNIA, et al.,
15 (ECF No. 1, 2) Defendants. 16 17 Plaintiff, who proceeds in this action without counsel, has requested leave to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Plaintiff’s application in support of 19 his request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915(a)(1). 20 Accordingly, the undersigned grants the request to proceed in forma pauperis. However, pursuant 21 to 28 U.S.C. § 1915, the Court is directed to dismiss the case at any time if it determines the 22 action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks 23 monetary relief against an immune defendant. 24 For the reasons discussed below, the Court concludes that Plaintiff’s Complaint fails to 25 state a claim on which relief may be granted and is otherwise frivolous, and that further leave to 26 amend would be futile. Thus, the Court recommends that the action be dismissed with prejudice. 27 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. 28 § 636(b)(1). 1 Legal Standard 2 Federal Rule of Civil Procedure 8(a) requires that a complaint contain: “(1) a short and 3 plain statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain statement of 4 the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, 5 which may include relief in the alternative or different types of relief.” 6 When considering whether a complaint states a claim upon which relief can be granted, 7 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 8 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 9 Allain, 478 U.S. 265, 283 (1986). However, to avoid dismissal for failure to state a claim, a 10 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 11 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 12 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). Furthermore, a claim upon which the court can grant relief must be facially plausible. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. A claim is legally frivolous when it lacks an 18 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 19 Murphy, 745 F.2d 1221, 1227–28 (9th Cir. 1984). The court may, therefore, dismiss a claim as 20 frivolous where it is based on an indisputably meritless legal theory or where the factual 21 contentions are clearly baseless. Neitzke, 490 U.S. at 327. Finally, Rule 8 also bars so–called 22 ‘shotgun pleadings’––where a complaint alleges all defendants were responsible for all conduct 23 (without facts linking each defendant to each claim) ––as this pleading style “interferes with the 24 court's ability to administer justice.” Destfino v. Kennedy, 2008 WL 4810770, at *3 (E.D.Cal. 25 Nov. 3, 2008). 26 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 27 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). A pro se plaintiff 28 proceeding in forma pauperis is ordinarily entitled to notice and an opportunity to amend before 1 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) superseded on other grounds 2 by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc); Franklin v. 3 Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). Nevertheless, leave to amend need not be granted 4 when further amendment would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 5 (9th Cir. 1996). 6 Analysis 7 In his Complaint, Plaintiff alleges that the State of California, a number of Solano County 8 and Vacaville City entities, the Federal Communications Commission, the Department of 9 Homeland Security, a number of private cell service providers and multiple private individuals 10 have conspired against him by, among other things, blocking his internet access, directing 11 malware attacks against his online accounts, and monitoring his internet activity. (ECF No. 1 at 12 pp. 2, 12–14.) Plaintiff lists a number of federal statutes as the apparent basis for his claims, 13 including multiple sections of the Americans with Disabilities Act (42 U.S.C § 12101, 12112, 14 12203, 12182), “Terrorism” (citing to 42 U.S.C. § 2333(a)), “Torture” (42 U.S.C. § 2340A), 15 Economic Espionage (42 U.S.C. § 1831), Theft of Trade Secrets (42 U.S.C. 1831), Wire and 16 Electronic Communication (42 U.S.C. § 2520), 42 U.S.C. § 1983––for First, Fourth, Fifth, Sixth, 17 Seventh, Thirteenth, and Fourteenth Amendment violations, as well as two employment– 18 discrimination sections (42 U.S.C. 2000a–3 and –5), four criminal–code sections (18 U.S.C. 19 § 2511 and § 242, Cal. Penal Code. § 530.5 and 530.6), and the entirety of Titles 11 (Bankruptcy) 20 and 17 (Copyright). (Id. at p.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EUGENE KORTE, No. 2:19–cv–2428–TLN–KJN (PS) 12 Plaintiff, ORDER GRANTING IFP REQUEST AND STAYING CASE and 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS 14 STATE OF CALIFORNIA, et al.,
15 (ECF No. 1, 2) Defendants. 16 17 Plaintiff, who proceeds in this action without counsel, has requested leave to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Plaintiff’s application in support of 19 his request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915(a)(1). 20 Accordingly, the undersigned grants the request to proceed in forma pauperis. However, pursuant 21 to 28 U.S.C. § 1915, the Court is directed to dismiss the case at any time if it determines the 22 action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks 23 monetary relief against an immune defendant. 24 For the reasons discussed below, the Court concludes that Plaintiff’s Complaint fails to 25 state a claim on which relief may be granted and is otherwise frivolous, and that further leave to 26 amend would be futile. Thus, the Court recommends that the action be dismissed with prejudice. 27 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. 28 § 636(b)(1). 1 Legal Standard 2 Federal Rule of Civil Procedure 8(a) requires that a complaint contain: “(1) a short and 3 plain statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain statement of 4 the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, 5 which may include relief in the alternative or different types of relief.” 6 When considering whether a complaint states a claim upon which relief can be granted, 7 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 8 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 9 Allain, 478 U.S. 265, 283 (1986). However, to avoid dismissal for failure to state a claim, a 10 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 11 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 12 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). Furthermore, a claim upon which the court can grant relief must be facially plausible. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. A claim is legally frivolous when it lacks an 18 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 19 Murphy, 745 F.2d 1221, 1227–28 (9th Cir. 1984). The court may, therefore, dismiss a claim as 20 frivolous where it is based on an indisputably meritless legal theory or where the factual 21 contentions are clearly baseless. Neitzke, 490 U.S. at 327. Finally, Rule 8 also bars so–called 22 ‘shotgun pleadings’––where a complaint alleges all defendants were responsible for all conduct 23 (without facts linking each defendant to each claim) ––as this pleading style “interferes with the 24 court's ability to administer justice.” Destfino v. Kennedy, 2008 WL 4810770, at *3 (E.D.Cal. 25 Nov. 3, 2008). 26 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 27 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). A pro se plaintiff 28 proceeding in forma pauperis is ordinarily entitled to notice and an opportunity to amend before 1 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) superseded on other grounds 2 by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc); Franklin v. 3 Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). Nevertheless, leave to amend need not be granted 4 when further amendment would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 5 (9th Cir. 1996). 6 Analysis 7 In his Complaint, Plaintiff alleges that the State of California, a number of Solano County 8 and Vacaville City entities, the Federal Communications Commission, the Department of 9 Homeland Security, a number of private cell service providers and multiple private individuals 10 have conspired against him by, among other things, blocking his internet access, directing 11 malware attacks against his online accounts, and monitoring his internet activity. (ECF No. 1 at 12 pp. 2, 12–14.) Plaintiff lists a number of federal statutes as the apparent basis for his claims, 13 including multiple sections of the Americans with Disabilities Act (42 U.S.C § 12101, 12112, 14 12203, 12182), “Terrorism” (citing to 42 U.S.C. § 2333(a)), “Torture” (42 U.S.C. § 2340A), 15 Economic Espionage (42 U.S.C. § 1831), Theft of Trade Secrets (42 U.S.C. 1831), Wire and 16 Electronic Communication (42 U.S.C. § 2520), 42 U.S.C. § 1983––for First, Fourth, Fifth, Sixth, 17 Seventh, Thirteenth, and Fourteenth Amendment violations, as well as two employment– 18 discrimination sections (42 U.S.C. 2000a–3 and –5), four criminal–code sections (18 U.S.C. 19 § 2511 and § 242, Cal. Penal Code. § 530.5 and 530.6), and the entirety of Titles 11 (Bankruptcy) 20 and 17 (Copyright). (Id. at p. 10.) Plaintiff seeks a number of injunctions against various 21 Defendants, an unspecified amount of compensatory and punitive damages, and other 22 miscellaneous relief.2 (Id. at pp. 17–18.) 23 As explained to Plaintiff in 2015, simply listing a series of statutes without listing the facts 24 supporting each claim does not comport with federal pleading standards. (See 2:15–cv–1398, 25 ECF No. 4 at p. 3: “In the complaint plaintiff then alleges multiple causes of action[.] Those 26
27 2 This relief apparently includes access to files from two other cases Plaintiff filed with this Court in 2015 (2:15–cv–1398–KJM–DAD and 2:13–cv–35–JAM–JFM). These documents can be 28 viewed at the courthouse at the court’s public terminals. 1 causes of action, however, are asserted without any reference to any facts. For example, the 2 complaint does not identify the actions of any defendant, any dates or any locations. Moreover, 3 the complaint does not even identify which causes of action are asserted against which 4 defendants.”) Here, Plaintiff’s Complaint again fails to give fair notice to any of the listed 5 Defendants as to what claims are asserted against them. Fed. R. Civ. P. 8(a)(2); Jones v. 6 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Instead, Plaintiff’s complaint 7 offers mere labels, which is insufficient to state a claim. Iqbal, 556 U.S. at 678 (“A pleading that 8 offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of cause of action will 9 not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 10 enhancements.’”) (quoting Twombly, 550 U.S. at 557). 11 Further, in order for a claim to proceed in federal court, the facts presented must be 12 plausible on their face. Twombly, 550 U.S. at 570. Claims must also be legally cognizable, not 13 frivolous in nature. Neitzke, 490 U.S. at 327; see also Allen v. Gold Country Cascino, 464 F.3d 14 1044, 1048 (9th Cir. 2006) (no private right of action exists for alleged violations of criminal 15 statutes); Iegorova v. Intercom Sec., 2019 WL 6332162, at *1 (E.D. Cal. Sept. 17, 2019) 16 (recommending dismissal of complaint where plaintiff alleged factually–baseless causes of action 17 under numerous statutes, including portions of the U.S. criminal code). Plaintiff’s Complaint 18 fails the above standards, and so should be dismissed. 19 Ordinarily, federal courts liberally grant pro se plaintiffs leave to amend. However, 20 because the record here shows that Plaintiff would be unable to cure the above-mentioned 21 deficiencies through further amendment of the Complaint, the Court concludes that granting leave 22 to amend would be futile. See Cahill, 80 F.3d at 339. The Court therefore recommends dismissal 23 with prejudice. 24 ORDER 25 It is HEREBY ORDERED that: 26 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED; and 27 2. In light of the findings and recommendations, all pleading, discovery, and motion practice 28 in this action are STAYED pending resolution of these findings and recommendations 1 (other than objections to the findings and recommendations or non-frivolous motions for 2 emergency relief, the Court will not entertain or respond to any pleadings or motions until 3 the findings and recommendations are resolved). 4 RECOMMENDATIONS 5 IT IS HEREBY RECOMMENDED that: 6 1. This action be DISMISSED WITH PREJUDICE; and 7 2. The Clerk of Court be directed to CLOSE this case. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 10 || days after being served with these findings and recommendations, any party may file written 11 | objections with the court and serve a copy on all parties. Such a document should be captioned 12 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 13 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 14 | objections. Plaintiff is advised that failure to file objections within the specified time may waive 15 | the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 16 | 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 17 | Dated: January 7, 2020 i Aectl Aharon 19 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 20 21 kort.2428 22 23 24 25 26 27 28