Simon v. McDonald

LARRY ALAN BURNS

ORDER:

(1) SUA SPONTE DISMISSING

COMPLAINT AS FRIVOLOUS

PURSUANT TO 28 U.S.C. § 1915A(b;

and

(2) DENYING MOTION TO

PROCEED IN FORMA PAUPERIS

AS MOOT

Plaintiff, Roland Michael Simon, Jr., currently incarcerated at High Desert State Prison located in Susanville, California and proceeding pro se, has filed a Complaint pursuant to 42 U.S.C. § 1983. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis ("IFP").

I. Initial Screening per 28 U.S.C. § 1915A(b)

The Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A, obligates the Court to review complaints filed by anyone "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

Plaintiff's Complaint is nearly incomprehensible and difficult to determine what his true claims are. Plaintiff appears to take issue with his criminal proceeding in Los Angeles and he refers to spyplanes, the CIA and "brainwave emitting." (Compl. at 3-4.) Plaintiff does seeking "instant release, one billion dollars for violation of civil rights and one billion dollars for pain and suffering." (Id.) He further indicates that he has filed a similar action in Federal Court in Los Angeles but it was "dismissed illegally failed to research start database." (Id. at 6.)

A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the Court finds Plaintiff's claims to be frivolous under § 1915A because they lack even "an arguable basis either in law or in fact," and appear "fanciful," "fantastic," or "delusional." Neitzke, 490 U.S. at 325, 328. Thus, the Court dismisses the entirety of Plaintiff's Complaint as frivolous pursuant to 28 U.S.C. § 1915A.

II. Conclusion and Order

Good cause appearing, IT IS HEREBY ORDERED that:

1. Plaintiff's Complaint is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A. Moreover, because the Court finds amendment of Plaintiff's claims would be futile at this time, leave to amend is DENIED. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further amendment would be futile); see also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) ("Since plaintiff has not, and cannot, state a claim containing an arguable basis in law, this action should be dismissed without leave to amend; any amendment would be futile.") (citing Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)).

2. Further, this Court CERTIFIES that any IFP appeal from this Order would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).

3. Plaintiff's Motion to Proceed IFP [ECF No. 2] is DENIED as moot. The Clerk shall enter judgment for the Defendants and close the file.

IT IS SO ORDERED.

H ONORABLE L ARRY A LAN B URNS

United States District Judge