(PS) Korte v. State of California

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 EUGENE KORTE, an individual d/b/a No. 2:21-cv-0240 JAM DB PS

EFK Systems,

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13 Plaintiff, FINDINGS AND RECOMMENDATIONS

14 v.

15 STATE OF CALIFORNIA, et al.,

16 Defendants.

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18 Plaintiff Eugene Korte is proceeding in this action pro se. This matter was referred to the

19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending

20 before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28

21 U.S.C. § 1915. (ECF Nos. 1 & 2.) The complaint’s allegations concern an alleged cyber-attack.

22 The court is required to screen complaints brought by parties proceeding in forma

23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated

25 below, the undersigned will recommend that plaintiff’s complaint be dismissed without leave to

26 amend.

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1 I. Plaintiff’s Application to Proceed In Forma Pauperis

2 Plaintiff’s in forma pauperis application makes the financial showing required by 28

3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma

4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny

5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed

6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d

7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th

8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th

9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed

10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous

11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the

12 District Court to examine any application for leave to proceed in forma pauperis to determine

13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit,

14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).

15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

17 state a claim on which relief may be granted, or seeks monetary relief against an immune

18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the

22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

26 true the material allegations in the complaint and construes the allegations in the light most

27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

5 The minimum requirements for a civil complaint in federal court, as explained by Rule 8

6 of the Federal Rules of Civil Procedure (“Rules”), are as follows:

7 A pleading which sets forth a claim for relief . . . shall contain (1) a

short and plain statement of the grounds upon which the court’s

8 jurisdiction depends . . . , (2) a short and plain statement of the claim

showing that the pleader is entitled to relief, and (3) a demand for

9 judgment for the relief the pleader seeks.

10 Fed. R. Civ. P. 8(a).

11 II. Plaintiff’s Complaint

12 “[T]he in forma pauperis statute . . . ‘accords judges not only the authority to dismiss a

13 claim based on an indisputably meritless legal theory, but also the unusual power to pierce the

14 veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are

15 clearly baseless.’” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke, 490 U.S. at

16 327). “Examples of the latter class are claims describing fantastic or delusional scenarios, claims

17 with which federal district judges are all too familiar.” Neitzke, 490 U.S. at 328.

18 Here, the complaint identifies 17 defendants ranging from the Department of Homeland

19 Security, the Federal Communications Commission, the State of California, Vacaville City Hall,

20 Verizon Wireless, as well as several individuals. (Compl. (ECF No. 1) at 2.) The complaint

21 alleges that the defendants engaged in a “malicious cyber espionage attack” against the plaintiff

22 that “seemed to parallel the government’s Stucknet cyberattack[.]” (Id. at 15.) Using “malicious

23 wireless malware, a Unified Extensible Firmware Interface” the defendants destroyed plaintiff’s

24 copies of files associated with actions previously filed in this court. (Id. at 13-14.) The complaint

25 seeks “in camera ex parte hearing determining who, what, when, and why a secret FISA warrant

26 was obtained against the plaintiff[.]” (Id. at 17.) In this regard, the complaint’s allegations are

27 delusional.

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1 | DI. Leave to Amend

2 For the reasons stated above, plaintiff's complaint should be dismissed. The undersigned

3 | has carefully considered whether plaintiff may amend the complaint to state a claim upon which

4 | relief could be granted. “Valid reasons for denying leave to amend include undue delay, bad

5 | faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818

6 | F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv.

7 | Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely

8 | given, the court does not have to allow futile amendments). In light of the deficiencies noted

9 | above, the undersigned finds that it would be futile to grant plaintiff leave to amend.

10 CONCLUSION

11 For the reasons stated above, IT IS HEREBY RECOMMENDED that:

12 1. Plaintiff's February 8, 2021 application to proceed in forma pauperis (ECF No. 2) be

13 || denied;

14 2. Plaintiffs February 8, 2021 complaint (ECF No. 1) be dismissed without leave to

15 || amend; and

16 3. This action be closed.

17 These findings and recommendations will be submitted to the United States District Judge

18 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after

19 | being served with these findings and recommendations, plaintiff may file written objections with

20 | the court. A document containing objections should be titled “Objections to Magistrate Judge’s

21 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

22 | specified time may, under certain circumstances, waive the right to appeal the District Court’s

23 | order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

24 | Dated: April 22, 2021

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27 | DLB:6 ONETED STATS ag JUDGE

38 DB/orders/orders.pro se/kKorte0240.dism.f&rs ~