1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOE RUBEN HOLMES, JR., Case No.: 24-CV-492 JLS (BLM)

12 Petitioner, ORDER DISMISSING ACTION 13 v. WITH PREJUDICE AS FRIVOLOUS

14 JASON T. GROSS, (ECF No. 1) 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas 18 Corpus pursuant to

, but has failed to pay the $5.00 filing fee or submit a 19 request to proceed in forma pauperis. ECF No. 1. Accordingly, the Court DISMISSES 20 this action. See Rule 3(a), 28 U.S.C. foll. § 2254;

(a);

§ 1915. 21 In addition, the Petition is incomprehensible. See ECF No. 1 at 2–7. A pleading is 22 “factually frivolous” if “the facts alleged rise to the level of the irrational or the wholly 23 incredible, whether or not there are judicially noticeable facts available to contradict them.” 24 Denton v. Hernandez,

, 32–33 (1992); see also Neitzke v. Williams,

319, 325 (1989) (“[A] complaint, containing as it does both factual allegations and legal 26 conclusions, is frivolous where it lacks an arguable basis either in law or in fact. . . . [The] 27 term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal 28 conclusion, but also the fanciful factual allegation.”); Mayle v. Felix,

, 649 1 (2005) (noting that “Rule 8... requires only ‘a short and plain statement,’” while “Rule 2 ||2(c) of the Rules Governing Habeas Corpus Cases requires a more detailed statement.” 3 || (quoting Fed. R. Civ. P. 8(a)(2)); Blackledge v. Allison,

(1977) (explaining 4 ||that vague, conclusory, or palpably incredible allegations unsupported by specific facts 5 ||may be subject to summary dismissal). 6 Based on the incomprehensible nature of Plaintiff's pleading, the Court finds that 7 claims “rise to the level of the irrational or the wholly incredible,” Denton,

||33, and as such, his Petition must b DISMISSED WITHOUT LEAVE TO AMEND as 9 ||frivolous. See Lopez v. Smith,

, 1127 n.8 (9th Cir. 2000) (en banc) (noting 10 || that if a claim is classified as frivolous, “there is by definition no merit to the underlying 11 |} action and so no reason to grant leave to amend.”). 12 IT IS SO ORDERED. 13 ||Dated: March 15, 2024 jae L. Lo memeaite- 14 on. Janis L. Sammartino 15 United States District Judge

16 17 18 19 20 21 22 23 24 25 26 27 28