Opinion
1:21-cv-01640-CL
02-09-2022
MARK D. PECKHAM, Plaintiff, v. DAVE DANIEL, et al., Defendants.
REPORT & RECOMMENDATION
MARK D. CLARKE, United States Magistrate Judge.
Plaintiff Mark D. Peckham, a self-represented litigant, seeks to proceed in forma pauperis ("IFP") in this action against Defendants Dave Daniel, the Sheriff of Josephine County, and the Chief of Grants Pass City Police, and others. The Court previously dismissed Plaintiffs complaint without prejudice and with leave to file an amended complaint within thirty days. Plaintiff timely filed an amended complaint, but a review of the pleadings indicates that he has not cured the deficiencies identified. For the reasons below, the Court recommends that this action be DISMISSED with prejudice.
DISCUSSION
Generally, all parties instituting any civil action in United States District Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for meaningful access to the federal courts despite their inability to pay the costs and fees associated with that access. To authorize a litigant to proceed IFP, a court must make two determinations. First, a court must determine whether the litigant is unable to pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess whether the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Previously the Court issued an Opinion and Order dismissing Plaintiffs complaint for failure to state a claim. Similarly, the Amended Complaint (#7) fails to include sufficient facts to present a cognizable claim for relief. For example, as in his original complaint, Plaintiff states in a conclusory fashion that the city police have harassed him and falsely arrested him, but he does not present the specific facts of any arrest in such a manner as to allege that the police did not have probable cause, which is required for a claim of false arrest. In alleging his claims against "Defendant No 4," "Pete" (Pete Smith), Plaintiff admits that he fired a weapon in front of his ex-wife. He claims it was an accident due to an injured wrist, but then he states that he "lied, said I was scaring her with it at first." He states that "Pete" was his lawyer, and Defendant Ryan Malkins was "trying to give me a felony." Other discussions involve cases in other courts, problems with having his lawyer's brother as a judge, issues with his ex-wife and a restraining order, issues with not being allowed to be present at the Josephine County Courthouse unless he "has business there," and people there who believed him to be making threats. For all of these claims, the Court is unable to discern sufficient factual content to raise a claim for relief that can be granted by this Court.
The Court acknowledges receipt of the attachment showing that Plaintiffs motion for an order of dismissal in his case in the Josephine County Circuit Court was granted and the case was dismissed; thus showing that particular case was indeed determined in his favor. However, his allegations still fail to state that the case, and his arrest, was initiated without probable cause. Moreover, his allegations actually provide the opposite - if he did indeed lie and state that he was trying to scare his ex-wife by firing his weapon, then law enforcement had plenty of probable cause to believe that he was "menacing" under Oregon law.
For these reasons, as well as all of the reasons provided in the Court's prior Opinion and Order, this case should be dismissed for failure to state a claim for relief. Having been given a chance to cure the deficiencies of his Complaint and failing to do so, the Court determines that further leave to amend would be futile. Therefore, this case should be dismissed with prejudice.
RECOMMENDATION
For the reasons stated above, Plaintiffs case should be DISMISSED with prejudice. This Report and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. Fed.R.Civ.P. 72. If objections are filed, any response is due within fourteen (14) days after being served with a copy of the objections. Id. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)