Opinion
Case No. 3:17-CV-00409-MMD (VPC)
07-28-2017
COLLEEN A. BRADSHAW, Plaintiff, v. THE VOTER FRAUD PANEL, et al., Defendants.
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). For the reason set forth below, it is recommended that plaintiff's complaint be dismissed with prejudice.
I. BACKGROUND
On July 5, 2017, plaintiff filed a civil rights complaint with the court alleging "Kansas Secretary of State Chris Kobach and others on the Voter Fraud Panel convened at the direction of President Donald Trump, is seeking the voting registration information of every registered voter in America..." (ECF No. 1-1 at 2.) Plaintiff also apparently seeks, among other things, that this court orders relief in the amount of "...$1,000 from each member of the Voter Fraud Panel fold." (ECF No. 1-1 at 12.)
Plaintiff has filed an application to proceed in forma pauperis together with a civil rights complaint. (Id. at 1.) In her application and financial affidavit, plaintiff states that she receives a monthly income of $1023.00 in social security disability benefits, and that she has $604.08 in her checking or savings account. Id. Plaintiff also states that she has bills she is unable to pay at this time. Id. Because plaintiff has limited access to money, the court recommends that the motion for in forma pauperis be granted.
However, the court finds that plaintiff's complaint fails to state a claim upon which relief may be granted, and is in fact frivolous. Therefore, the court recommends that plaintiff's complaint be dismissed with prejudice.
II. DISCUSSION & CONCLUSION
Pursuant to 28 U.S.C. §1915(e)(2), a federal court must dismiss a case in which in forma pauperis status is granted, "if the allegation of poverty is untrue," or the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2).
Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under §1915 when reviewing the adequacy of a complaint or amended complaint. Review under Rule 12(b)(6) is essentially a ruling on a question of law. North Star Inter'l v. Arizona Corp. Comm., 720 F.2d 578 (9th Cir. 1983). In considering whether a plaintiff has stated a claim upon which relief may be granted, all material allegations in the complaint are accepted as true and are construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037 (9th Cir. 1980). Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519 (1972)(per curiam).
However, if it appears to a certainty that a plaintiff will not be entitled to relief under any set of facts that could be proven under the allegations of the complaint, the court may sua sponte dismiss the complaint or portions of it. Halet v. Wand Investment Co., 672 F.2d 1305 (9th Cir. 1982). All or part of a complaint filed in forma pauperis may therefore be dismissed sua sponte if the claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist) as well as claims based on fanciful factual allegations, (e.g., fantastic or delusional scenarios).
Plaintiff's complaint lists the defendants as three individuals and one entity: Chris Kobach, The Voter Fraud Panel, Donald J. Trump, and Jeff Sessions. (ECF No. 1-1.) Plaintiff suggests that there is "an intense effort to quash Americans' 1st Amendment right to freedom of the press...from the White House now." (Id. at 3.) Plaintiff also alleges her "television cable box has been hacked...display[ing] on [her] T.V. a row of...old Soviet style propaganda poster art showing...a strong, exalted Donald Trump, followed by a picture of a monstrous, witchy cartoon character of Hillary Clinton." (Id. at 8.) Plaintiff also apparently seeks, among other things, that this court order relief in the amount of "...$1,000 from each member of the Voter Fraud Panel" for violating her due process rights. (Id. at 12.)
The court concludes that plaintiff's claims are based on conclusions that are untenable, fantastical, or delusional scenarios. Therefore, it is recommended that plaintiff's complaint be dismissed with prejudice.
The parties are advised:
1. Pursuant to 28 U.S.C § 636(b)(1)(C) and Rule IB 3-2 of the Local Rules of Practice, the parties may file specific written objections to this report and recommendation within fourteen days of receipt. These objections should be entitled "Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points and authorities for consideration by the District Court.
2. This report and recommendation is not an appealable order and any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment.
III. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the district court enter an order as follows:
1. GRANTING plaintiff's motion to proceed in forma pauperis (ECF No. 1-1);
2. ORDERING the Clerk to file and docket plaintiff's complaint (ECF No. 1-1); and
3. DISMISSING plaintiff's complaint WITH PREJUDICE.
DATED: July 28, 2017.
/s/_________
UNITED STATES MAGISTRATE JUDGE