Opinion

Manuel Ollarsaba v. Unknown

Court
District Court, C.D. California
Filed
Jan 7, 2022
Cited by
0 cases
Authority
More cited than 16.3%

stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”

How later courts described this case

  • stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”
  • “Iqbal incorporated the Twombly pleading standard and Twombly did not 11 alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se 12 filings liberally when evaluating them under Iqbal.”
  • “[A] district court’s discretion over 5 | amendments is especially broad ‘where the court has already given a plaintiff one or 6 | more opportunities to amend his complaint.’ ”

Written by the judges who cited it.

The opinion

Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 1 of 7 Page ID #:53

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MANUEL OLLARSABA, Case No. 5:21-cv-1896-SVW (MAR)

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Plaintiff, ORDER SUMMARILY DISMISSING

9 FIRST AMENDED COMPLAINT

v.

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UNKNOWN,

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Defendant.

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13 I.

14 INTRODUCTION

15 On November 3, 2021, Manuel Ollarsaba (“Plaintiff”), proceeding pro se,

16 constructively filed1 a Complaint (“Complaint”). ECF Docket No. (“Dkt.”) 1. On

17 November 16, 2021, the Court dismissed the Complaint with leave to amend. Dkt. 4.

18 On December 10, 2021, Plaintiff filed a First Amended Complaint (“FAC”). Dkt. 6.

19 For the reasons discussed below, the Court dismisses the FAC without leave to

20 amend and without prejudice.

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1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to

27 court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.

Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103,

28 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).

Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 2 of 7 Page ID #:54

1 II.

2 BACKGROUND

3 On November 3, 2021, Manuel Ollarsaba (“Plaintiff”), proceeding pro se,

4 constructively filed a Complaint (“Complaint”). Dkts. 1, 5.2 On November 16, 2021,

5 the Court dismissed the Complaint with leave to amend because it was unclear and

6 therefore failed to state a claim or comply with Fed. R. of Civ. P. 8. Dkt. 4. On

7 December 10, 2021, Plaintiff filed a First Amended Complaint (“FAC”). Dkt. 6.

8 III.

9 STANDARD OF REVIEW

10 Where a plaintiff is incarcerated a court must screen the complaint under 28

11 U.S.C. § 1915A and is required to dismiss the case at any time if it concludes the

12 action is frivolous or malicious, fails to state a claim on which relief may be granted,

13 or seeks monetary relief against a defendant who is immune from such relief. 28

14 U.S.C. § 1915A; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

15 Dismissal for failure to state a claim can be warranted based on either a lack of

16 a cognizable legal theory or the absence of factual support for a cognizable legal

17 theory. See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th

18 Cir. 2008). Although the plaintiff must provide “more than labels and conclusions,”

19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “[s]pecific facts are not

20 necessary; the [complaint] need only give the defendant[s] fair notice of what the . . .

21 claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93

22 (2007) (per curiam) (citations and quotation marks omitted).

23

24 2 On December 13, 2021, the Court received a filing from Plaintiff and docketed it as a Response to

Order Dismissing Complaint with Leave to Amend. Dkt. 5. However, upon review, it appears that

25 this filing was intended to be the substantive portion of the original complaint: it contains a caption

page and is dated November 2, 2021, one (1) day before the date on the one-page filing that this

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Court originally construed as the Complaint. Id. at 1. It is not clear why this portion of the

27 Complaint was received so much later. Regardless, it suffers from the same deficiencies as both the

First Amended Complaint and the November 3, 2021 filing that the Court originally construed as

28 the Complaint. For clarity and ease of reference, this Order refers to both Dkt. 1 and Dkt. 5

together as the Complaint.

2

Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 3 of 7 Page ID #:55

1 In considering whether a complaint states a claim, a court must accept as true

2 all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892–93

3 (9th Cir. 2011). However, a court need not accept as true “allegations that are merely

4 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

5 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The court must also

6 construe the pleading in the light most favorable to the pleading party and resolve all

7 doubts in the pleader’s favor. See, e.g., Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir.

8 2005). Pro se pleadings are “to be liberally construed” and are held to a less stringent

9 standard than those drafted by a lawyer. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

10 2010) (“Iqbal incorporated the Twombly pleading standard and Twombly did not

11 alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se

12 filings liberally when evaluating them under Iqbal.”).

13 However, a pro se complaint may be dismissed as frivolous if “the facts alleged

14 rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 504

15 U.S. 25, 26 (1992). The term “ ‘frivolous,’ when applied to a complaint, embraces not

16 only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke

17 v. Williams, 490 U.S. 319, 325 (1989).

18 If a court finds the complaint should be dismissed for failure to state a claim, a

19 court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203

20 F.3d 1122, 1126–30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it

21 appears possible the defects in the complaint could be corrected, especially if the

22 plaintiff is pro se. Id. at 1130–31; see also Cato v. United States, 70 F.3d 1103, 1106

23 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot

24 be cured by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d

25 at 1105, 1107–11.

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Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 4 of 7 Page ID #:56

1 IV.

2 DISCUSSION

3 A. THE COMPLAINT FAILS TO STATE A CLAIM OR COMPLY WITH

4 RULE 8

5 1. Applicable law

6 Rule 8 requires a complaint contain “a short and plain statement of the claim

7 showing that the pleader is entitled to relief” and “a demand for the relief sought.”

8 Fed. R. Civ. P. 8. Rule 8(a) “requires a ‘showing,’ rather than a blanket assertion, of

9 entitlement to relief.” See Twombly, 550 U.S. at 555. “[T]he ‘short and plain

10 statement’ [required by Rule 8] must provide the defendant with ‘fair notice of what

11 the plaintiff’s claim is and the grounds upon which it rests.’ ” Dura Pharms., Inc. v.

12 Broudo, 544 U.S. 336, 346 (2005).

13 A court may dismiss a complaint because it is unintelligible or frivolous “where

14 it lacks an arguable basis either in law or in fact.” Williams, 490 U.S. at 325. Further,

15 Rule 8 requires that a complaint clearly establish the claims and parties such that a

16 defendant would have “no difficulty in responding to the claims with an answer

17 and/or with a Rule 12(b)(6) motion to dismiss.” Hearns v. San Bernardino Police

18 Dep’t, 530 F.3d 1124, 1131–32 (9th Cir. 2008); Conley v. Gibson, 355 U.S. 41, 47

19 (1957).

20 2. Analysis

21 Here, like the Complaint, the FAC provides nothing that could be construed as

22 a cause of action or claim for relief, even when construed liberally. Under “CLAIM

23 I” in the “CLAIMS” section of the Civil Rights Complaint form, Plaintiff writes as

24 follows:

25 Multiple issues of harassment daily with no physical contact of trouble

shooting signal low current electrical device’s of government apparatus –

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equipment of science technology hitting the anatomy (body) to disturb the

27 physical-mental stability multiple internal structure (inner) movement of

abnormal chemical imbalance of invisible function due to the processing

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+ manufacture’s companies not following FDA regulation requirements

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Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 5 of 7 Page ID #:57

for quality control – of environmental solution of liquids – solids form

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not for table usage. The reason for grievance @ the Robert Preseley

2 Detention Center was to notified [sic] them of past + present issue due to

mental health of no major illness of negative diagnosis of abnormal issue

3

due to kitchen food + KeefeNet – work of the product of activity due to

4 the substance being grounded to body consuming (toxic) press and

neglecting situation etcetera.

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6 Dkt. 6 at 5. Not only is Plaintiff’s claim largely unintelligible, but any comprehensible

7 factual allegations appear “irrational or wholly incredible.” Denton, 504 U.S. at 26

8 Furthermore, Plaintiff identifies no Defendants. Under the corresponding

9 section in the Civil Rights Complaint form, Plaintiff simply writes “unknown.” Dkt. 6

10 at 3. Later in the FAC, Plaintiff appears to identify “Riverside County Sheriff’s

11 Department (unknown) personnal’s [sic]” as a Defendant. Id. at 6. Plaintiff also lists

12 various other individuals and entities throughout the FAC, including former Secretary

13 of Defense Colin Powell, the CIA, NASA, Channel 7 Eyewitness News, “Major

14 Holiday,” TMZ, and the FDA. Id. at 7. It is unclear whether Plaintiff intended to

15 name any or all of these individuals as Defendants, nor is it clear how any of them are

16 involved in Plaintiff’s allegations.

17 Finally, under the “REQUEST FOR RELIEF” section on the Civil Rights

18 Complaint form, Plaintiff writes as follows:

19 Immediately Assistance (“Help” 911)

* I am entitled to better resource and more advance’s (technology)

20 facilities due to special condition of treatment that should be a first prior

on the list for my mental + physical condition of health issue instead of

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sitting in a jail with no therapy and analyze + monitoring to endanger my

22 life with neglecting my information with no obligation time @ the

moment due to further evaluation I have no time to wait I need

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immediately help from professional doctor I am being hit from distance

24 with some kind of a device used by government agencies – apparatus –

equipment hitting with low-current electrical running through anatomy of

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abnormal feels through product of activity which is the category of FDA

26 Regulation of government harassment and biological terrorist. Call Paul

T. Raudenbush – NASA - …Channel 7 Eyewitness New Investigation -

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… -Congress Man – Mark Takano…

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Case 5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 6 of 7 Page ID #:58

* I am entitled to a federal attorney to address my issue that I know my

1

rights and the constitution has been violated through government

2 agencies + multiple organization going with technology equipment with

the policy of quality and patience safety policae [sic] @ the American

3

Hospital Association – US Center for Disease Control – Prevention –

4 Negative diagnosis of any major illness (no COVID 19) Refer – Primary

Doctor Lisa Block…

5

6 Id. at 6. Plaintiff’s request for help and medical assistance is troubling. However, the

7 Court is powerless to grant any type of relief without a discernible and meritorious

8 underlying claim. Furthermore, here, the FAC appears entirely based on fanciful

9

allegations and therefore must be summarily dismissed.3

10 B. THE COMPLAINT SHOULD BE DISMISSED WITHOUT LEAVE

11 TO AMEND

12 As discussed above, the Complaint fails to state a claim on which relief may be

13 granted. See above, subsections IV.A. Despite being given an opportunity to correct

14 the specific deficiencies the Court identified in the ODLA, Dkt. 4, Plaintiff was

15 unable to correct them.

16 Plaintiff’s inability to draft an intelligible complaint shows leave to amend

17 would be futile. See Pearce v. LA Cty. Jail Peace Officer/Corr. Officer, No. CV 17-

18 8092 JLS (JC), 2018 WL 3339646, at *2 (C.D. Cal. July 5, 2018) (finding where

19

20 3 Additionally, to the extent Plaintiff requests appointment of counsel, his request must be

DENIED.

21

There is no constitutional right to appointed counsel in civil rights actions. Storseth v. Spellman,

22

654 F.2d 1349, 1353 (9th Cir. 1981). A court has no direct way to pay appointed counsel and cannot

23 compel an attorney to represent a plaintiff. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 301-10,

109 S. Ct. 1814, 104 L. Ed. 2d 318 (1989). In exceptional circumstances, a court may request

24 counsel to voluntarily provide representation. 28 U.S.C. § 1915(e)(1); see Mallard, 490 U.S. at 301-

10. To decide whether “exceptional circumstances” exist, a court evaluates both the likelihood of a

25 plaintiff’s success on the merits and plaintiff’s ability to articulate claims pro se. Palmer v. Valdez,

560 F.3d 965, 970 (9th Cir. 2009); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

26

27 Here, while Plaintiff does show an inability to articulate his claims, he has not shown any likelihood

of success on the merits. In fact, as noted above, his claims appear frivolous and subject to

28 summary dismissal. Accordingly, not only has Plaintiff failed to show a likelihood of success on the

merits that would justify the appointment of counsel, but the request appears moot.

6

Case]5:21-cv-01896-SVW-MAR Document 7 Filed 01/07/22 Page 7of7 Page ID #:59

1 | plaintiff is “unwilling to draft a complaint that states viable claims for relief [the

2 | Court] deems such failure an admission that amendment is futile”). Accordingly, the

3 | Complaint should be dismissed without leave to amend. See Ismail v. Cty. of Orange,

4 | 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (“[A] district court’s discretion over

5 | amendments is especially broad ‘where the court has already given a plaintiff one or

6 | more opportunities to amend his complaint.’ ”) (quoting DCD Programs, Ltd. v.

7 | Leighton, 833 F.2d 183, 186 n.3 Oth Cir. 1987)).4

8 V.

9 CONCLUSION

10 IT IS THEREFORE ORDERED that this action is DISMISSED without

11 | leave to amend and without prejudice.

12

Dated: January 7, 2022 — £4 £187"

13 J y ae Lgfohey / FF hee fy

HON. STEPHEN V. WILSON

14 United States District Judge

15 | Presented by:

16 A :

V7)

MARGO A. ROCCONI

18 | United States Magistrate Judge

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23 |, . .

The Court also notes that Plaintiff has yet to pay the filing fee or request to proceed in forma

24 | pauperis (“IFP”), which could provide independent justification for dismissing the action if Plaintiff

failed to pay or file a request to proceed IFP after a warning from the Court. Dkt. 3; see McGuire v.

25 | United States, No. 5:18-2370-JVS (JPR), 2019 WL 1585199, at *1 (C.D. Cal. Apr. 12, 2019) (noting a

% court may dismiss a prisoner’s civil rights action for failure to pay the initial filing fee or fails to

respond to an order to show cause regarding his filing fee). However, at this point, issuing such a

97 | warning would be a waste of both Plaintiff's and the Court’s time, because even if Plaintiff were to

pay the fee or apply to proceed IFP, Plaintiffs claims appear wholly frivolous and therefore would

28 | be subject to dismissal regardless.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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