Opinion
3:23-cv-01092-YY
07-28-2023
KEVIN M. KEAY, Plaintiff, v. BARBARA ANN KEAY, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Pro se plaintiff Kevin M. Keay has filed an action against his mother, Barbara Ann Keay, alleging a “racketeering” claim. This case should be dismissed because it fails to state a claim for relief.
The court has granted plaintiff's application to proceed in forma pauperis (“IFP”). The IFP statute provides that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “A pleading that states a claim for relief must contain . . . a short and plain statement of the grounds for the court's jurisdiction; . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may include in the alternative or different types of relief.” FED. R. CIV. P. 8(a). “Rule 8 does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2006) (citations omitted). “A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Federal courts hold a Pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (holding a document filed Pro se “is to be liberally construed”; a plaintiff need only give the defendant fair notice of the claim and the grounds on which it rests) (citation omitted). “Although . . . Pro se litigant[s] . . . may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
Plaintiff alleges no facts to support his claim of “racketeering” against his mother. The law allows for a civil RICO cause of action. See 18 U.S.C. § 1964. But even if plaintiff could somehow allege that his mother had formed an “enterprise,” see 18 U.S.C. 1961(4), he would still have to show that his mother engaged in “a pattern of racketeering activity,” including one of the criminal acts that constitute “racketeering activity,” and allege at least two acts of racketeering activity “within ten years.” See 18 U.S.C. § 1961(1) & (5).
Generally, a Pro se plaintiff should be given the opportunity to amend the complaint to state a valid claim for relief. However, here, there is no indication that amendment would be anything but futile. See Foman v. Davis, 371 U.S. 178 (1962) (holding that futility and bad faith are reasons to deny motion to amend). This is the 23rd case that plaintiff has filed with this court (not including social security cases), most of which have been dismissed for failure to state a claim, lack of jurisdiction, and/or want of prosecution.
Moreover, the fantastical racketeering claim that plaintiff alleges against his mother has no realistic prospect of proceeding. The IFP statute “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). “Examples of the former class are claims against which it is clear that the defendants are immune from suit, . . . and [e]xamples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.” Id. at 327-28. “To pierce the veil of the complaint's factual allegations means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Payne v. Contra Costa Sheriff's Dep't, No. C 02-2382CRB(PR), 2002 WL 1310748, at *1 (N.D. Cal. June 10, 2002) (citing Denton v. Hernandez, 504 U.S. 25, 32 (1992)). “A finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.” Id. Such a finding of frivolousness is appropriate here.
RECOMMENDATIONS
Because plaintiff's complaint fails to state a claim for relief, this case should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without leave to amend.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, August 18, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
IT IS SO ORDERED.