Case 1:10-cv-02151-LJO-JLT Document 7 Filed 12/16/10 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`
`WESLEY KANE CAMPBELL,
`Plaintiff,
`
`Case No. 1:10-cv-02151 LJO JLT (PC)
`
`FINDINGS AND RECOMMENDATIONS
`RECOMMENDING THIS ACTION BE
`DISMISSED
`(Doc. 1)
`
`
`
`
`
`
`vs.
`
`BARACK OBAMA, et al.,
`
`Defendants.
`
` /
`Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C.
`§ 1983. Plaintiff has paid the filing fee for this action. This proceeding was referred to the undersigned
`magistrate judge in accordance with 28 U.S.C. § 636(b)(1) and Local Rule 302. Pending before the
`Court is Plaintiff’s complaint filed November 17, 2010.
`I.
`SCREENING
`A.
`Screening Requirement
`The Court is required to review a case in which a prisoner seeks redress from a governmental
`entity or officer. 28 U.S.C. § 1915A(a). The Court must review the complaint and dismiss any portion
`thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
`monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). Leave to
`amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
`Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
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`Case 1:10-cv-02151-LJO-JLT Document 7 Filed 12/16/10 Page 2 of 5
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`Rule 8(a)
`B.
`A complaint is governed by the notice pleading standard outlined in Federal Rule of Civil
`Procedure 8(a), which provides in relevant part that:
`A pleading that states a claim for relief must contain:
`(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court
`already has jurisdiction and the claim needs no new jurisdictional support;
`(2) a short and plain statement of the claim showing that the pleader is entitled to relief;
`and
`(3) a demand for the relief sought, which may include relief in the alternative or different
`types of relief.
`
`The Federal Rules of Civil Procedure adopt a flexible pleading policy. Nevertheless, a complaint
`must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]” Bell
`Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
`(1957)). Vague and conclusory allegations are insufficient to state a claim. Ivey v. Board of Regents,
`673 F.2d 266, 268 (9th Cir. 1982). “[A] plaintiff’s obligation to provide the grounds of his entitlement
`to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
`of action will not do[.]” Twombly, 550 U.S. at 555 (citations and quotations omitted). Although a
`complaint need not outline all of the elements of a claim, it must be possible to infer from the allegations
`that all of the elements exist and that plaintiffs are entitled to relief under a viable legal theory. Walker
`v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990). In Ashcroft v. Iqbal, 129 S.Ct.
`1937, 1949, (2009), the Court observed,
`[T]he pleading standard Rule 8 announces does not require “detailed factual allegations,”
`but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
`accusation. [Citations]. A pleading that offers “labels and conclusions” or “a formulaic
`recitation of the elements of a cause of action will not do.” [Citation]. Nor does a
`complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
`enhancement.” [Citation].
`
`The Court further clarified that,
`a complaint must contain sufficient factual matter, accepted as true, to “state a claim to
`relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the
`plaintiff pleads factual content that allows the court to draw the reasonable
`inference that the defendant is liable for the misconduct alleged. [Citation]. The
`plausibility standard is not akin to a “probability requirement,” but it asks for
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`Case 1:10-cv-02151-LJO-JLT Document 7 Filed 12/16/10 Page 3 of 5
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`more than a sheer possibility that a defendant has acted unlawfully. [Citation].
`Where a complaint pleads facts that are “merely consistent with” a defendant’s
`liability, it “stops short of the line between possibility and plausibility of
`‘entitlement to relief.’”
`
`Id., emphasis added. The Iqbal Court instructed,“Determining whether a complaint states a plausible
`claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial
`experience and common sense.” Id. at 1950.
`II.
`THE COMPLAINT
`Plaintiff identifies President Barack Obama, Michelle Obama, George W. Bush, and Dick
`Cheney as the defendants to this action. Plaintiff alleges that President Obama is allowing prison
`officials to feed Plaintiff feces. Plaintiff also alleges that Michelle Obama is trying to defame Plaintiff
`as being a sex offender. As to George W. Bush, Plaintiff alleges that the former President ignored
`Plaintiff’s letters to the White House and is now colluding with the Southside Street Gang to have
`Plaintiff murdered. Lastly, Plaintiff alleges that Dick Cheney signed a contract to have Plaintiff
`murdered. Based on these allegations, Plaintiff accuses Defendants of defamation, slander, libel,
`professional negligence, and asbestos personal injury. In terms of relief, Plaintiff seeks an injunction
`and monetary damages. (Compl., Doc. 1, at 1-6.)
`III.
`DISCUSSION
`As an initial matter, the Court notes that this action should have been brought under Bivens v.
`Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and not under
`§ 1983. A Bivens action provides a remedy for violations of civil rights by federal actors, whereas an
`action under § 1983 provides a remedy for violations of civil rights by state actors. Van Strum v. Lawn,
`940 F.2d 406, 409 (9th Cir. 1991). Here, Plaintiff alleges that federal actors have violated his civil
`rights. A Bivens action is therefore the appropriate vehicle for Plaintiff to seek redress.
`1
`In any event, regardless of the case’s designation, the Court finds that Plaintiff’s allegations fail
`to state a cognizable claim. The only claim that potentially implicates a federal right is Plaintiff’s
`allegation that President Obama is permitting prison officials to feed him food tainted with feces. This
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` All of the named defendants in this action are federal actors with the exception of Michelle Obama who is neither
`a federal or state actor.
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`Case 1:10-cv-02151-LJO-JLT Document 7 Filed 12/16/10 Page 4 of 5
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`implicates Plaintiff’s right under the Eighth Amendment to be free from cruel and unusual punishment.
`Nevertheless, the allegation is so conclusory and devoid of factual support that it fails to state a claim.
`More importantly, on its face, this allegation patently incredible. Iqbal, 129 S. Ct. at 1949.
`Plaintiff’s remaining claims, which include allegations of defamation and negligence, among
`other things, all fall within the province of state law. Without commenting on the questionable merit
`of these claims, the Court declines to exercise supplemental jurisdiction over them. Pursuant to 28
`U.S.C. § 1367 the Court has the discretion to exercise supplemental jurisdiction over state law claims
`that form part of the same case or controversy to which the Court has original jurisdiction. Acri v.
`Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). As explained above, Plaintiff has failed to
`allege any cognizable federal claim in this case. Supplement jurisdiction is therefore improper. See
`United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (if all federal claims are dismissed
`before trial, the state claims should be dismissed as well).
`Finally, the Court will dismiss the complaint without leave to amend. It is this Court’s
`experience that unsupported, fantastic allegations such as the ones presented by Plaintiff in this case are
`frivolous, utterly lacking an arguable basis in fact. See Netizke v. Williams, 490 U.S. 319, 325-28
`(district courts have the power and experience to ferret out frivolous claims). Granting Plaintiff leave
`to amend would therefore be futile and would simply waste this Court’s limited time and scare resources.
`See Lopez, 203 F.3d at 1127 (leave to amend should be granted unless the court determines that the
`pleading could not be cured by amendment).
`IV.
`CONCLUSION
`Accordingly, it is HEREBY RECOMMENDED that:
`1.
`This action be dismissed for failure to state a cognizable claim; and
`2.
`The Clerk of the Court be directed to enter judgment and close this case.
`These findings and recommendations are submitted to the United States District Judge assigned
`to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of
`Practice for the United States District Court, Eastern District of California. Within twenty-one days after
`being served with these findings and recommendations, Plaintiff may file written objections with the
`court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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`Case 1:10-cv-02151-LJO-JLT Document 7 Filed 12/16/10 Page 5 of 5
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`Recommendations.” The district judge will review these findings and recommendations pursuant to 28
`U.S.C. § 636(b)(1)(c). Plaintiff is advised that failure to file objections within the specified time may
`waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
`
`IT IS SO ORDERED.
`Dated: December 16, 2010
`9j7khi
`
` /s/ Jennifer L. Thurston
`UNITED STATES MAGISTRATE JUDGE
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