United States District Court, D. Nevada
REPORT OF FINDINGS AND RECOMMENDATION
A. LEEN UNITED STATES MAGISTRATE JUDGE
matter is before the court on a screening of Plaintiff Thomas
Curtis W.'s Amended Complaint (ECF No. 4). This screening
is referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice.
Curtis is proceeding in this civil rights action pro
se and has received permission to proceed in forma
pauperis (“IFP”). See Order (ECF
No. 2). Upon review of the initial complaint (ECF No. 3), the
court instructed Curtis to file an amended complaint to
correct certain defects in his pleading. The court will now
review the Amended Complaint (ECF No. 4).
granting a litigant's IFP request, a federal court must
screen the complaint and any amended complaints filed prior
to a responsive pleading pursuant to § 1915(e).
Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)
(en banc) (§ 1915(e) applies to “all in forma
pauperis complaints”). When a court dismisses a
complaint pursuant to § 1915(e), a plaintiff is
ordinarily given leave to amend with directions as to curing
its deficiencies, unless it is clear from the face of the
complaint that the deficiencies could not be cured by
amendment. Cato v. United States, 70 F.3d 1103, 1106
(9th Cir. 1995). Allegations in a pro se complaint
are held to less stringent standards than formal pleading
drafted by lawyers. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 n.7
(9th Cir. 2010). However, pro se litigants
“should not be treated more favorably than parties with
attorneys of record, ” Jacobsen v. Filler, 790
F.2d 1362, 1364 (9th Cir. 1986); rather, they must follow the
same rules of procedure that govern other litigants.
Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
courts are required to dismiss an IFP action if the complaint
fails to state a claim upon which relief may be granted, is
legally “frivolous or malicious, ” or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). In determining whether a
complaint is frivolous and therefore warrants complete or
partial dismissal, a court is not bound to accept without
question truth of plaintiff's allegations. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Allegations are
frivolous when they are “clearly baseless, ”
id., or lack an arguable basis in law and fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Frivolous claims include those based on legal conclusions
that are untenable (e.g., claims against defendants
who are immune from suit or claims of infringement of a legal
interest that clearly does not exist), as well as claims
based on fanciful factual allegations (e.g.,
fantastic or delusional scenarios). Id. at 327-28;
McKeever v. Block, 932 F.2d 795, 798 (9th Cir.
properly pled complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2); accord Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Although Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Mere
recitals of the elements of a cause of action supported only
by conclusory allegations do not suffice. Id. at
679- 80. Where the claims in the complaint have not crossed
the line from plausible to conceivable, the complaint should
be dismissed. Twombly, 550 U.S. at 570. Stated
differently, the factual allegations “must plausibly
suggest an entitlement to relief, such that it is not unfair
to require the opposing party to be subjected to the expense
of discovery and continued litigation.” Starr v.
Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Amended Complaint (ECF No. 4) names the Federal Bureau of
Investigation (“FBI”) as the sole defendant. Mr.
Curtis alleges that the FBI violated his rights to see,
breath, hear, talk, and walk by removing his eyes, jaws,
head, brain, heart, lungs, arms, and legs. Id. at
3-4. He alleges the FBI used biologic pathogens and
biological chemicals and weapons on him and put cables and
electrical DNA strips on him to electrify him 24-hours a day.
Id. at 3. The FBI purportedly removed most of his
organs from the brain down and sexually assaulted him by
implanting an “electric penis” and “cables
in [his] a** crack.” Id. at 4. The FBI
allegedly contaminated his house, walls, attic, and cars
“with all sorts of chemicals, DNA mutations, [and]
photogenic pathogens.” Id. at 5.
court finds that Mr. Curtis's factual claims describe
fantastic and delusional scenarios and do not state a claim
upon which relief can be granted. Iqbal, 556 U.S. at
696 (Souter, J. dissenting) (noting that courts are not bound
to accept as true allegations that are “sufficiently
fantastic to defy reality as we know it: claims about little
green men, or the plaintiff's recent trip to Pluto, or
experiences in time travel). A finding of factual
frivolousness is appropriate here because the facts alleged
“rise to the level of the irrational or the wholly
incredible.” Denton, 504 U.S. at 33. Because
the Amended Complaint does not set forth a plausible claim
and the allegation of additional facts would not cure these
deficiencies, the court finds that Curtis is not entitled to
an opportunity to amend. Mr. Curtis's allegations and
claims are so fantastic and delusional that amendment would
be futile. See Lopez, 203 F.3d at 1126. The court
will therefore recommend that the complaint be dismissed with
IT IS RECOMMENDED
Plaintiff Thomas Curtis W.'s Amended Complaint (ECF No.
4) be DISMISSED WITH PREJUDICE.
Clerk of the Court be instructed to enter judgment
accordingly. Dated this 21st day of June, 2017.
Report of Findings and Recommendation is submitted to the
assigned district judge pursuant to 28 U.S.C. §
636(b)(1) and is not immediately appealable to the Court of
Appeals for the Ninth Circuit. Any notice of appeal to the
Ninth Circuit should not be filed until entry of the district
court's judgment. See Fed. R. App. P. 4(a)(1).
Pursuant to LR IB 3-2(a) of the Local Rules of Practice, any
party wishing to object to a magistrate judge's findings
and recommendations of shall file and serve specific
written objections, together with points and authorities
in support of those objections, within 14 days of the date of
service. See also 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 6, 72. The document should be captioned
“Objections to Magistrate Judge's Report of
Findings and Recommendation, ” and it is subject to the
page limitations found in LR 7-3(b). The parties are advised
that failure to file objections within the specified time may
result in the district court's acceptance of this Report
of Findings and Recommendation without further review.
United States v. Reyna-Tapia,328 F.3d 1114, 1121
(9th Cir. 2003). In addition, failure to file ...