1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:23-cv-1299-JES-MSB AARON JAMES WHITED, 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA v. PAUPERIS [ECF No 6.] and 14

YOUNG, ELIZABTH HACKET, 15 (2) DISMISSING CIVIL ACTION AS ADAM LANGKOWSKI, JESUS FRIVOLOUS PURUSANT TO 28 16 MANABAT, U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 17 Defendants. 18 19 20 I. INTRODUCTION 21 On July 7, 2023, Plaintiff, Aaron James Whited (“Plaintiff” or “Whited”), an 22 inmate proceeding pro se, filed a civil action pursuant to

. ECF No. 1. 23 On August 14, 2023, the Court dismissed the action because Whited had not prepaid the 24 $402 civil filing fee required by

(a) and had not filed a Motion to 25 Proceed In Forma Pauperis (“IFP”) pursuant to

(a). ECF No. 4. In its 26 Order, the Court gave Whited 45 days to either pay the fee or move to proceed IFP.

27 Whited filed a Motion to Proceed IFP on August 20, 2023. ECF No. 6. For the reasons 1 discussed below, the Court GRANTS Plaintiff’s IFP motion and DISMISSES the 2 Complaint as frivolous. 3 II. MOTION TO PROCEED IFP 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $402.1 See

(a). A party may initiate a civil action without prepaying the 7 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C. 8 § 1915(a); Andrews v. Cervantes,

(9th Cir. 2007). 9 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit 10 regarding their income and assets. See Escobedo v. Applebees,

(9th 11 Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a “certified 12 copy of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . . 13 the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 14 § 1915(a)(2). From the certified trust account statement, the Court assesses an initial 15 payment of 20% of (a) the average monthly deposits in the account for the past six 16 months, or (b) the average monthly balance in the account for the past six months, 17 whichever is greater, unless the prisoner has no assets. See

(b)(1) & 18 (4). Prisoners who proceed IFP must repay the entire fee in installments regardless of 19 whether their action is ultimately dismissed.

(b)(2); Bruce v. Samuels, 20

, 84 (2016). 21 In support of his IFP Motions, Plaintiff provided copies of his trust account 22 statements. ECF Nos. 2, 7. During the months prior to filing suit, Plaintiff had an average 23 monthly balance of $20.04, average monthly deposits of $60.00, and an available account 24

25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $52. See

(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to 27 persons granted leave to proceed IFP. Id. 1 balance of $0.04. at the time he filed suit. ECF No. 2. Accordingly, Plaintiff’s IFP motion 2 is GRANTED. While the Court assesses no initial payment, Plaintiff will be required to 3 pay the full $350 filing fee in installments to be collected from his trust account as set 4 forth in

(b)(2). 5 III. SCREENING PURSUANT TO

(e) AND § 1915A(b) 6 A. Legal Standards 7 Pursuant to

(e)(2)(B) and § 1915A(b), the Court must screen a 8 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 9 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 10 Lopez v. Smith,

, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 11

(9th Cir. 2010). “The standard for determining whether Plaintiff has 12 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 13 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a 14 claim.” Watison v. Carter,

(9th Cir. 2012). Rule 12(b)(6) requires 15 that a complaint to “contain sufficient factual matter . . . to state a claim to relief that is 16 plausible on its face.” Ashcroft v. Iqbal,

(2009) (internal quotation 17 marks omitted). While detailed factual allegations are not required, “[t]hreadbare recitals 18 of the elements of a cause of action, supported by mere conclusory statements, do not 19 suffice” to state a claim.

The “mere possibility of misconduct” or “unadorned, the 20 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 21 standard.

22 Title

“creates a private right of action against individuals who, 23 acting under color of state law, violate federal constitutional or statutory rights.” 24 Devereaux v. Abbey,

(9th Cir. 2001). Section 1983 “is not itself a 25 source of substantive rights, but merely provides a method for vindicating federal rights 26 elsewhere conferred.” Graham v. Connor,

U.S. 386, 393–94 (1989) (internal 27 quotation marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) 1 deprivation of a right secured by the Constitution and laws of the United States, and (2) 2 that the deprivation was committed by a person acting under color of state law.” Tsao v. 3 Desert Palace, Inc.,

(9th Cir. 2012). 4 B. Plaintiff’s Allegations 5 In his Complaint, Plaintiff names four defendants: Judge Young, who presisded 6 over a criminal case involving Plaintiff in Indiana; Adam Langkowski, an attorney hired 7 by Plaintiff’s mother to “work in [his] wrongful imprisonment case;” Elizabeth Hackett, 8 Plaintiff’s mother; and Jesus Manabat, who Plaintiff’s describes as a “private contractor.” 9 See ECF No. 1 at 2. 10 The legal claims and factual allegations contained in the Complaint are somewhat 11 rambling and disjointed. In his first claim, Plaintiff states he was denied the “right to 12 make an everlasting and forthright impression on somebody.” Id. at 3. Among other 13 things, Plaintiff states that Judge Young sentenced him to a lengthy prison sentence after 14 “conspir[ing] to imprison [him] in [a] ploy to steal [his] DNA.” Id. As to his second 15 claim, Plaintiff alleges he was denied access to courts by Langkowksi, who was hired by 16 Hackett (Plaintiff’s mother). Id. at 4. In support of the claim, Plaintiff references a 17 “personal injury contract” and states he is “suffering whole heartedly from micro- 18 aneurysms” and “close-circuitedness [sic].” Id. Plaintiff goes on to allege that his “third 19 eye powers . . . are being stolen.” Id. In his third claim, Plaintiff contends his right to be 20 free from cruel and unusual punishment was violated by Manabat, who he describes as a 21 “torture expert.” Id. at 5. Plaintiff claims Manabat “wiretapped [him] very bad on 22 purpose” and that his “DNA is highly sought after” by the government. Id. Plaintiff seeks 23 $400 million in damages. Id. at 7. 24 C. Discussion 25 Plaintiff filed suit invoking federal jurisdiction pursuant to

, but 26 “[Section] 1983 ‘is not itself a source of substantive rights,’” and “merely provides a 27 method for vindicating federal rights elsewhere conferred.” Graham v. Connor,

, 393–94 (1989) (quoting Baker v. McCollan,

, 144 n.3 (1979)). “Section 2 1983 creates a private right of action against individuals who, acting under color of state 3 law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

(9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show both (1) 5 deprivation of a right secured by the Constitution and laws of the United States, and (2) 6 that the deprivation was committed by a person acting under color of state law.” Tsao v. 7 Desert Palace, Inc.,

(9th Cir. 2012). 8 The Court finds Whited’s suit is frivolous. “The purpose of [screening] is ‘to 9 ensure that the targets of frivolous or malicious suits need not bear the expense of 10 responding.’” Nordstrom v. Ryan,

, 920 n.1 (9th Cir. 2014) (citation 11 omitted). A pleading is “factual[ly] frivolous[ ]” if “the facts alleged rise to the level of 12 the irrational or the wholly incredible, whether or not there are judicially noticeable facts 13 available to contradict them.” Denton v. Hernandez,

, 25–26 (1992). “[A] 14 complaint, containing as it does both factual allegations and legal conclusions, is 15 frivolous where it lacks an arguable basis either in law or in fact . . .. [The] term 16 ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal 17 conclusion, but also the fanciful factual allegation.” Neitzke v. Williams,

, 18 325 (1989). When determining whether a complaint is frivolous, the court need not 19 accept the allegations as true, but must “pierce the veil of the complaint’s factual 20 allegations,”

, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] 21 ‘delusional.’” Denton,

(quoting Neitzke,

). 22 Here, Whited’s allegations are rambling, disjointed, and incoherent. The Complaint 23 includes a list of unsubstantiated fanciful and conspiratorial assertions. Plaintiff refers to 24 himself as “a religious figure to Mexican and ethnic people,” with “third eye powers” and 25 states he has an “innate ability to obtain lost artifacts from the war.” ECF No. 1 at 4, 5. 26 The Complaint also includes references to “underwater submersible extortion,” 27 “pretransfusion” and “teleportation.” Id. at 4, 5. In sum, the Complaint lacks any “short 1 and plain statement of the claim showing that [he] is entitled to [any] relief” arguably 2 based on law or fact.2 See Fed. R. Civ. P. 8(a)(2); Neitzke,

. When taken 3 together with the exorbitant amount of damages he seeks, the Court finds this action 4 “lacks serious purpose or value.” See Johnson v. Paul, No. 20-CV-2174-JLS (WVG), 5

, at *2 (S.D. Cal. Nov. 20, 2020) (dismissing pro se § 1983 complaint 6 seeking to sue the Pope, a U.S. Senator, the Secretary of State, and several Presidents for 7 having committed “human trafficking crimes, Biblical crimes . . . extortion, conspiracies 8 [and] public kidnappings” sua sponte as frivolous pursuant to

(e)(2)). 9 Therefore, the Complaint is dismissed as frivolous. 10 IV. CONCLUSION AND ORDER 11 For the reasons set forth above, the Court hereby: 12 1. GRANTS Plaintiff’s Motion to proceed IFP pursuant to

(a) 13 (ECF No. 2). 14 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 15 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 16 payments from the account in an amount equal to twenty percent (20%) of the preceding 17 month’s income and forward payments to the Clerk of the Court each time the amount in 18 the account exceeds $10 in accordance with

(b)(2). ALL PAYMENTS 19 MUST CLEARLY IDENTIFY THE NAME AND CASE NUMBER ASSIGNED TO 20

21 2 The Court also notes that three of the individuals named as defendants––Hackett, Manabat and 22 Langkowski––appear to be private citizens and thus not acting under the color of state law, as 23 required under § 1983. See Florer v. Congregation Pidyon Shevuyim, N.A.,

(9th Cir. 2011) (“We start with the presumption that conduct by private actors is not state 24 action”); Dominguez v. Varnell, No. 17-cv-2652-KAW,

, at * 1 (N.D. Cal. Nov. 1, 2017) (stating that private individuals and entities, not affiliated with a state or 25 municipal government, are generally presumed to not be acting under color of state law); 26 Gernard v. Cty. of Sonoma, 92-cv-4617-BAC,

, at *3 (N.D. Cal. June 29, 1994) (stating that private citizen does not act under color of law); see also Kimes v. Stone, 84

, 1126 (9th Cir. 1996) (stating attorneys are private citizens). 1 || THIS ACTION. 2 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 3 || Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by 4 || U.S. Mail, or by forwarding an electronic copy to [email protected]. 5 4. DISMISSES the Complaint sua sponte and in its entirety as frivolous 6 || pursuant to

(e)(2)(B)(i) and 1915A(b)(1). 7 5. CERTIFIES that an IFP appeal would not be taken in good faith pursuant 8

(a)(3). 9 6. DIRECTS the Clerk of the Court to enter a judgment of dismissal and to 10 close the file. 11 IT IS SO ORDERED. 12 3 Dated: November 6, 2023 = 4, 14 Honorable James E. Simmons Jr. 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27