Opinion
No. SA CV 14-1890-DOC (PLA)
01-08-2016
LEONARD J. PORTO III, Plaintiff, v. JASON FARRIS, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On October 27, 2015, the Magistrate Judge issued a Report and Recommendation ("R&R") in this matter in which he recommended that the action be dismissed with prejudice. (Doc. No. 22). On January 4, 2016, following an extension of time, plaintiff filed a document entitled "Plaintiff's Opposition to the Three Reports and Recommendations of the Magistrate Judge." (Doc. No. 25). The Court construes this as plaintiff's Objections to the pending Report and Recommendation, which is the first Report and Recommendation issued in this case. / / /
II.
DISCUSSION
In a section labeled "Introduction," plaintiff states that he has "suffered behind bars and chaining [sic] to a wall," and, among other things, that he "suffered torture by unlawful search, seizure, and humiliation, multiple police threats, actual attack." (Objs. at 1). Plaintiff's Third Amended Complaint ("TAC"), however, alleges that he was arrested once by Officer Farris on August 22, 2013, for "interfering with an officer," that Officer Farris conducted an "invasive bodily search inside the back of [plaintiff's] swimming trunks," and that he was transferred by unspecified individuals to "solitary confinement behind city jail bars." (TAC ¶¶ 51-52, 61). The TAC also alleges, without naming any responsible officer, specifying any date, or setting forth any supporting factual allegations, that plaintiff was "emotionally traumatized and suffered physical pain of constraint in handcuffs while chained to the wall of a holding area." (TAC ¶ 71). Further, plaintiff in his Objections states that the "city has restricted my use of a DMV handicapped placard in city owned lots to only limited spaces," that he has "suffered assault multiple times by drunks at the city shelter," and that he is "not sharing sleeping space with persons having immediate access to backpacks that are not screened for weapons." (Objs. at 1-2). However, plaintiff's TAC does not raise any claims pertaining to any assault against plaintiff, claims related to plaintiff's use of any City shelter, or any claims arising from his use of a handicapped placard. Accordingly, the Court cannot address these portions of plaintiff's Objections.
In his Objections, plaintiff does object that the Magistrate Judge "required a difficult to use out-dated complaint form in a format confusing to interpret" and that this constitutes a "denial of access to this court" (Objs. at 2), but the Court has carefully considered all of plaintiff's factual allegations regardless of his difficulties in utilizing the civil rights complaint form that was provided. Further, the Court has diligently attempted to ascertain the nature of each of plaintiff's claims despite his "imperfect statement of the legal theory supporting the claim asserted." See Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014) (per curiam). Although plaintiff argues that he "is disparately targeted" for "judicial scrutiny" based on his status proceeding in forma pauperis (Objs. at 3), the Court is obligated to comply with 28 U.S.C. § 1915(e)(2). See, e.g., Shirley v. Univ. of Idaho, 800 F.3d 1193 (9th Cir. 2015) (citing 28 U.S.C. § 1915(e)(2)(B) and noting that a "district court shall screen and dismiss an action filed by a plaintiff proceeding in forma pauperis"); Lopez v. Smith, 203 F.3d 1122, 1127, n.7 (9th Cir. 2000) ("section 1915(e) applies to all in forma pauperis complaints" and directs "district courts to dismiss a complaint that fails to state a claim upon which relief may be granted") (en banc). Such screening is required because a litigant proceeding in forma pauperis, in the absence of an obligation to pay a filing fee, is "immune from the economic deterrents to filing frivolous lawsuits." Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). Further, the same standards apply to the Court's screening pursuant to 28 U.S.C. § 1915(e)(2) as would apply to a defendant's motion to dismiss had plaintiff paid the required filing fee and served his pleading without screening. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (in determining whether a complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B), courts apply the standard of Fed. R. Civ. P. 12(b)(6)).
Plaintiff also objects to the "application of Iqbal" (Objs. at 3) and argues that he "has no clarity as to a clear example of the balance between the federal rules of civil procedure and Iqbal that would allow this case to move past the complaint stage" (Objs at 5). Plaintiff additionally objects that the word "conclusory" is "quite elusory." (Objs. at 4). The Court, however, notes that the Magistrate Judge did not recommend dismissal of plaintiff's claims on the ground that they were "conclusory." Rather, as set forth in the Report and Recommendation, the Magistrate Judge found that plaintiff's pleading fails to include "sufficient factual matter, accepted as true," Iqbal, 556 U.S. at 663, to "nudge[] [his] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. As the Supreme Court has long held, the Court need not accept as true a "legal conclusion couched as a factual allegation." See, e.g., Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). Although plaintiff states that he would have "benefited [sic] greatly if this plaintiff could see a clear claim by claim example of the correct wording of a like complaint that did pass judicial scrutiny" (Objs. at 5), as the Magistrate Judge repeatedly advised plaintiff, his pleadings have each contained "claims" that referenced multiple legal grounds, alleged claims against defendants having no apparent connection to the claims, referenced factual issues (such as the availability of handicapped parking spaces in City parking lots) that do not appear to pertain to any of the claims that plaintiff was purporting to raise, and raised claims for which no factual allegations were set forth (such as the use of excessive force, or a refusal to accommodate plaintiff's disability). Because plaintiff has repeatedly failed to comply with Federal Rules of Civil Procedure 8(a) and 8(d), even construing the allegations of the pleadings liberally and affording plaintiff the benefit of any doubt, the Court is unable to ascertain the number of claims that plaintiff is purporting to raise, which defendants he is purporting to raise what claims against, and what the legal or factual basis of each of his claims may be.
III.
CONCLUSION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings in this action, including the Third Amended Complaint, the other records on file herein, the magistrate judge's report and recommendation, and plaintiff's objections to the report and recommendation. The Court has engaged in a de novo review of those portions of the report and recommendation to which objections have been made. The Court accepts the recommendations of the magistrate judge.
ACCORDINGLY, IT IS ORDERED:
1. The report and recommendation is accepted.
2. Judgment shall be entered consistent with this order.
3. The clerk shall serve this order and the judgment on all counsel or parties of record. DATED: January 8, 2015
/s/_________
HONORABLE DAVID O. CARTER
UNITED STATES DISTRICT JUDGE