Opinion
Case No. 20-cv-01936-JD
02-12-2021
KENNETH CARL GUY, Plaintiff, v. DALTON PIZZUTI, Defendant.
ORDER DISMISSING COMPLAINT
Re: Dkt. Nos. 15, 19
Pro se plaintiff Kenneth Carl Guy, who is proceeding in forma pauperis, has filed an amended complaint alleging obstruction of justice, wire fraud, and constitutional claims against a "polygraph examiner" and possibly a former employer. Dkt. No. 15. He has also applied for a preliminary injunction and an order to show cause. Dkt. No. 19.
The amended complaint is dismissed. The Court may "at any time" dismiss an IFP complaint that fails to state a claim on which relief may be granted, or that is "frivolous." 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (this statute "applies to all in forma pauperis complaints"). The standard for dismissal for failure to state a claim is the same as under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). As a pro se plaintiff, Davis gets a liberal construction of his complaint and the benefit of any doubts, but he still must satisfy the requirements of Rule 8 and state facts sufficient to allege a plausible claim. Nguyen Gardner v. Chevron Capital Corp., No. 15-cv-01514-JD, 2015 WL 12976114, at *1 (N.D. Cal. Aug. 27, 2015).
Rule 8 of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This requires a plaintiff to allege facts sufficient to plausibly state a claim for relief. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Even read liberally, the amended complaint does not satisfy these basic pleading standards. It is an unfocused, and at many points unintelligible, assortment of allegations about "spyphone software" used in connection with a racketeering organization's effort to prevent Guy from filing a claim against his former employer, defendant Newsmax Media Inc., with the Equal Employment Opportunity Commission, and obtaining new employment. Uber Technologies, the rideshare company, is also mentioned as an alleged co-conspirator, although it does not appear that Guy was anything other than an Uber user. The incomprehensibility of the complaint is exacerbated by its extreme length -- more than 150 pages -- and inclusion of approximately 500 pages of exhibits. Overall, the amended complaint does not reasonably or fairly apprise defendants of the claims that they might be called upon to answer, or provide an understandable statement of a case.
While that is enough to dismiss the amended complaint, see Twombly, 550 U.S. at 556-57, the Court also notes that Guy purports to allege a claim under 42 U.S.C. § 1983 against private actors without any facts to indicate that they were "acting under color of state law" or otherwise within the purview of that statute. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). Guy also does not have a private right of action under 18 U.S.C. § 1505, which is a criminal statute. See Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979).
Consequently, the amended complaint is dismissed for failing to state a plausible claim, and the application for a preliminary injunction or order to show cause is terminated. Many of the problems with the amended complaint were previously identified by Magistrate Judge Sallie Kim in her order dismissing Guy's original complaint. Dkt. No. 11. Judge Kim expressly directed Guy to "address and correct" the deficiencies in his original complaint in the event that he filed an amended complaint. Id. at 1, 3. The fact that Guy did not do so counsels against offering him another chance to amend. Additionally, the Court recently terminated Guy's ECF privileges for "multiple frivolous filings," and required Guy to seek the Court's approval before filing any more docket entries. Dkt. No. 20 at 4. As the Court was finalizing this order, Guy submitted another amended complaint that asserts substantially the same facts as the previous two complaints. It similarly fails to state a plausible claim due to its intelligibility problems and reliance on conclusory allegations of conspiracy, among other problems. Granting Guy a further opportunity to amend at this point would serve no meaningful purpose, and so the case is dismissed and ordered closed. No further filings are permitted without the Court's prior consent.
IT IS SO ORDERED. Dated: February 12, 2021
/s/_________
JAMES DONATO
United States District Judge