Opinion
Civil No. 11 cv2021 LAB (BLM)
01-31-2012
SAMUEL KENNETH PORTER, CDCR #J-87467 Plaintiffs, v. L.W. McEWEN; GARCIA; MITCHELL; CORREA, Defendants.
ORDER SUA SPONTE DISMISSING
FIRST AMENDED COMPLAINT AS
FRIVOLOUS PURSUANT TO 28
U.S.C. § 1915(e)(2) & § 1915A
I. Procedural History
On September 1, 2011, Plaintiff, Samuel Kenneth Porter, currently incarcerated at Calipatria State Prison located in Calipatria, California and proceeding pro se, filed an action pursuant to 42 U.S.C. § 1983. In his original Complaint, Plaintiff alleged that prison officials had violated his Fourteenth Amendment rights by failing to process his administrative grievances. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") [ECF No. 2]. On November 14, 2011, the Court granted Plaintiff's Motion to Proceed IFP but sua sponte dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). See Nov. 14, 2011 Order at 5-6.
Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. On December 16, 2011, Plaintiff filed his First Amended Complaint ("FAC") in which he names new Defendants and claims factual allegations that are entirely different from those alleged in his original Complaint. In addition, Plaintiff has filed an Ex Parte Motion for Preliminary Injunction which the Court denied on January 27, 2011.
II. Initial Screening per 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)
A. Standard of Review
The Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A.
Plaintiff's First Amended Complaint is difficult to discern but he appears to allege that prison officials refuse to treat him for tapeworm. (See FAC at 3.) In addition, Plaintiff alleges that a tapeworm "came out in the shower" with "whiskers." (Id.) A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the Court finds Plaintiff's claims to be frivolous under § 1915A because they lack even "an arguable basis either in law or in fact," and appear "fanciful," "fantastic," or "delusional." Neitzke, 490 U.S. at 325, 328.
III. Conclusion and Order
Good cause appearing, IT IS HEREBY ORDERED that:
1. Plaintiff's First Amended Complaint is DISMISSED as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A. Moreover, because the Court finds amendment of Plaintiff's claims would be futile at this time, leave to amend is DENIED. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further amendment would be futile); see also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) ("Since plaintiff has not, and cannot, state a claim containing an arguable basis in law, this action should be dismissed without leave to amend; any amendment would be futile.") (citing Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)).
2. Further, this Court CERTIFIES that any IFP appeal from this Order would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).
The Clerk shall enter judgment for the Defendants and close the file.
IT IS SO ORDERED.
_______________
H ONORABLE L ARRY A LAN B URNS
United States District Judge