1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSHUA LAWRENCE LATHAM, Case No.: 3:20-CV-0354-JLS-BGS CDCR #G-48528, 12 ORDER: (1) DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT TO 28 U.S.C. v. § 1915A(b)(1); AND (2) DENYING 14 MOTION TO PROCEED IN FORMA JOHN DOE, Director of the California 15 PAUPERIS AS MOOT Department of Corrections; JOHN DOE, 16 Warden of R.J. Donovan; JOHN AND JANE DOES, Correctional Officers of the 17 California Department of Corrections, 18 Defendants. 19 20 21 22 23 Plaintiff Joshua Lawrence Latham, a state inmate currently incarcerated at the 24 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California and 25 proceeding pro se, has filed a civil rights complaint pursuant to

. See 26 Compl., ECF No. 1. Plaintiff did not pay the filing fee required by

(a) to 27 commence a civil action when he filed his Complaint; instead, he has filed a Motion to 28 Proceed In Forma Pauperis (“IFP”) pursuant to

(a). See ECF No. 17. 1 I. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b) 2 The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, obligates the 3 Court to review complaints filed by anyone “incarcerated or detained in any facility who 4 is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 5 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 6 soon as practicable after docketing” and regardless of whether the prisoner prepays filing 7 fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). Pursuant to this provision 8 of the PLRA, the Court is required to review prisoner complaints which “seek[] redress 9 from a governmental entity or officer or employee of a government entity,” and to dismiss 10 those, or any portion of those, which are “frivolous, malicious, or fail[] to state a claim 11 upon which relief may be granted,” or which “seek monetary relief from a defendant who 12 is immune.” 28 U.S.C. § 1915A(b)(1)–(2); Resnick v. Hayes,

, 446–47 (9th 13 Cir. 2000); Hamilton v. Brown,

, 892 n.3 (9th Cir. 2011). “The purpose of 14 § 1915A is ‘to ensure that the targets of frivolous or malicious suits need not bear the 15 expense of responding.’” Nordstrom v. Ryan,

, 920 n.1 (9th Cir. 2014) 16 (quoting Wheeler v. Wexford Health Sources, Inc.,

(7th Cir. 2012)). 17 A. Plaintiff’s factual allegations 18 Plaintiff alleges that he was first housed at RJD on May 29, 2019. (See Compl. at 19 3.) Plaintiff claims RJD correctional officers have been “using technology” to “look 20 through the Plaintiff’s eyes like a camera, listen through his ears,” and “control his motor 21 functions.” (Id.) He further alleges RJD correctional officers “use the technology to look 22 through his eyes while Plaintiff is in the shower and using the restroom.” (Id. at 4.) 23 Plaintiff also claims that “correctional officers have been sending emotional brain signals 24 to staff and inmates to create hostility/conflict.” (Id. at 5.) Plaintiff alleges that 25 “correctional staff at CSP-Corcoran and CCC Susanville utilized the technology in the 26 same manner.” (Id.) Plaintiff seeks declaratory and injunctive relief, along with money 27 damages. (Id. at 9.) 28 /// 1 B. Application to Plaintiff’s claims 2 The Court finds Plaintiff’s entire Complaint is patently frivolous. A pleading is 3 “factual[ly] frivolous[]” if “the facts alleged rise to the level of the irrational or the wholly 4 incredible, whether or not there are judicially noticeable facts available to contradict them.” 5 Denton v. Hernandez,

, 25–26 (1992). “[A] complaint, containing as it does 6 both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis 7 either in law or in fact. . . . [The] term ‘frivolous,’ when applied to a complaint, embraces 8 not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke 9 v. Williams,

(1989). When determining whether a complaint is frivolous, 10 the court need not accept the allegations as true, but must “pierce the veil of the complaint’s 11 factual allegations,”

, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] 12 ‘delusional.’” Denton,

(quoting Neitzke,

). 13 Here, the Court finds that Plaintiff’s claims “rise to the level of the irrational or the 14 wholly incredible,” Denton,

, and as such, his Complaint requires dismissal 15 as frivolous and without leave to amend. See Lopez v. Smith,

, 1127 n.8 (9th 16 Cir. 2000) (en banc) (noting that if a claim is classified as frivolous, “there is by definition 17 no merit to the underlying action and so no reason to grant leave to amend.”). 18 II. Conclusion and Order 19 Good cause appearing, the Court: 20 1. DISMISSES Plaintiff’s Complaint as frivolous pursuant to 28 U.S.C. 21 § 1915A and without leave to amend; 22 2. DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 17) as moot; and 23 3. CERTIFIES that an IFP appeal from this Order would also be frivolous and, 24 therefore, could not be taken in good faith pursuant to

(a)(3). See 25 Coppedge v. United States,

(1962); Gardner v. Pogue,

, 26 /// 27 /// 28 /// 1 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal 2 || would not be frivolous). 3 The Clerk shall close the file. 4 IT IS SO ORDERED. 5 Dated: April 7, 2020 . tt f te 6 on. Janis L. Sammartino 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28