(PS) Ortega v. Hinjosa

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 RHONDA ORTEGA, No. 2:22-cv-1406 KJM DB PS

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 TONY HINJOSA, et al.,

15 Defendants.

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17 Plaintiff Rhonda Ortega is proceeding in this action pro se. This matter was referred to

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

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

20 U.S.C. § 1915, motion to appoint counsel, and “motion for court order.” (ECF Nos. 1-4.)

21 Plaintiff’s pleadings consist of incomprehensible and delusional allegations.

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 and this action be closed.

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

2 Plaintiff’s in forma pauperis application is incomplete and asserts that “defendants-law

3 makers have restrict plaintiff from all knowledge of earnings.” (ECF No. 2 at 1.) Moreover, a

4 determination that a plaintiff qualifies financially for in forma pauperis status does not complete

5 the inquiry required by the statute. “‘A district court may deny leave to proceed in forma

6 pauperis at the outset if it appears from the face of the proposed complaint that the action is

7 frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998)

8 (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see also

9 McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the

10 district court did not abuse its discretion by denying McGee’s request to proceed IFP because it

11 appears from the face of the amended complaint that McGee’s action is frivolous or without

12 merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court

13 to examine any application for leave to proceed in forma pauperis to determine whether the

14 proposed proceeding has merit and if it appears that the proceeding is without merit, the court is

15 bound to deny a motion seeking leave to proceed in forma pauperis.”).

16 The court must dismiss an in forma pauperis case at any time if the allegation of poverty is

17 found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a

18 claim on which relief may be granted, or seeks monetary relief against an immune defendant. See

19 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or

20 in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

21 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous

22 where it is based on an indisputably meritless legal theory or where the factual contentions are

23 clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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

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

26 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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

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

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

2 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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

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

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

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

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

8 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

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

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

10 judgment for the relief the pleader seeks.

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

12 II. Plaintiff’s Complaint

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

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

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

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

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

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

19 Here, the complaint consists of vague, conclusory, and delusional allegations such as, in

20 June of 2015, “defendants abuse their authority with former client,” by “wrongful use of

21 administration proceedings—end user license—authenticate secure plaintiff’s identify in mobile

22 trust credentials—concealment—false imprisonment.” (Compl. (ECF No. 1) at 8.) That “[a]bout,

23 Dec. 2021, Plaintiff was intentionally inflicted injury of ‘Shingles’ — the Individual 90 Day

24 Search by President, Brian Infaction, can’t be Ruled out.” (Id. at 10.) Plaintiff’s motion to

25 appoint counsel alleges that on June 3, 2021, plaintiff “arrived @ White House in Washington,

26 D.C. regarding 90 Day President Corona Virus Individual with Brain Infaction search.” (ECF

27 No. 4.) Plaintiff was “locked . . . in D.C. Mental Institution with no release date[.]” (Id.)

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1 In this regard, the complaint’s allegations are delusional and frivolous. See Denton, 504

2 U.S. at 33 (“a finding of factual frivolousness is appropriate when the facts alleged rise to the

3 level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts

4 available to contradict them”).

5 III. Leave to Amend

6 For the reasons stated above, plaintiff’s complaint should be dismissed. The undersigned

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

8 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,

9 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d

10 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,

11 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the

12 court does not have to allow futile amendments).

13 Here, given the defects noted above, the undersigned finds that granting plaintiff leave to

14 amend would be futile.

15 IV. Motion to Appoint Counsel

16 Plaintiff is informed that federal district courts lack authority to require counsel to

17 represent indigent plaintiffs in civil cases. See Mallard v. United States Dist. Court, 490 U.S.

18 296, 298 (1989). The court may request the voluntary assistance of counsel under the federal in

19 forma pauperis statute, but only under exceptional circumstances. See 28 U.S.C. § 1915(e)(1);

20 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

21 1335-36 (9th Cir. 1990). The test for exceptional circumstances requires the court to evaluate the

22 plaintiff’s likelihood of success on the merits and the plaintiff’s ability to articulate his or her

23 claims. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718

24 F.2d 952, 954 (9th Cir. 1983).

25 Here, the undersigned has recommended that plaintiff’s complaint be dismissed without

26 leave to amend as frivolous. Accordingly, the undersigned cannot find that plaintiff is likely to

27 succeed on the merits and will recommend that the motion for appointment of counsel also be

28 denied.

1 CONCLUSION

2 Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that:

3 1. Plaintiff's August 8, 2022 complaint (ECF No. 1) be dismissed without prejudice;

4 2. Plaintiffs August 8, 2022 application to proceed in forma pauperis (ECF No. 2) be

5 | denied;

6 3. Plaintiff's August 8, 2022 motion to appoint counsel (ECF No. 3) be denied

7 4. Plaintiffs August 30, 2022 motion for court order (ECF No. 4) be denied; and

8 5. This action be closed.

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

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

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

12 | with the court. A document containing objections should be titled “Objections to Magistrate

13 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within

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

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

16 | Dated: October 28, 2022

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19 ‘BORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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DLB:6

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