1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL C. GONCALVES CPT(P) SC, No. 2:24-cv-01985 DJC AC PS

USAR ARMY FOIA REQUESTOR,

12 Plaintiff, 13 ORDER AND FINDINGS AND v. RECOMMENDATIONS 14

SECRETARY OF DEFENCE HON

15 LLOYD J. AUSTIN III, et al., 16 Defendants. 17 18 Plaintiff is proceeding in this action pro se. This matter was referred to the undersigned 19 by E.D. Cal. R. 302(c)(21). Plaintiff filed a request for leave to proceed in forma pauperis 20 (“IFP”) pursuant to 28 U.S.C. § 1915 and has submitted the affidavit required by that statute. See 21 28 U.S.C. § 1915(a)(1). The motion to proceed IFP will therefore be granted. On August 13, 22 2024, a defendant specially appeared to notify the court that the complaint in this case needed to 23 be sealed because it contains several unredacted social security numbers. ECF No. 3. The court 24 ordered the complaint sealed on August 14, 2024. ECF No. 4. Plaintiff moves for an extension 25 of time to respond to the request to seal. ECF No. 5. That motion is denied because sealing was 26 required by Local Rule 140(a)(iii). 27 //// 28 //// 1 I. Screening 2 A. Legal Standard 3 A determination that a plaintiff qualifies financially for in forma pauperis status does not 4 complete the inquiry required by the statute. The federal IFP statute requires federal courts to 5 dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which 6 relief may be granted or seeks monetary relief from a defendant who is immune from such relief. 7 28 U.S.C. § 1915(e)(2). Plaintiff must assist the court in determining whether the complaint is 8 frivolous, by drafting the complaint so that it complies with the Federal Rules of Civil Procedure 9 (“Fed. R. Civ. P.”). Under the Federal Rules of Civil Procedure, the complaint must contain (1) a 10 “short and plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed 11 in this court, rather than in a state court), (2) a short and plain statement showing that plaintiff is 12 entitled to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the 13 relief sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and 14 directly. Fed. R. Civ. P. 8(d)(1). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 17 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 18 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 19 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 20 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 21 denied, 564 U.S. 1037 (2011). 22 The court applies the same rules of construction in determining whether the complaint 23 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 24 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 25 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 26 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 27 (1972). However, the court need not accept as true conclusory allegations, unreasonable 28 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 1 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 2 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 3 556 U.S. 662, 678 (2009). To state a claim on which relief may be granted, the plaintiff must 4 allege enough facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 5 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 6 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 7 Iqbal, 556 U.S. at 678. 8 A pro se litigant is entitled to notice of the deficiencies in the complaint and an 9 opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See 10 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as 11 stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc). 12 B. The Complaint 13 Plaintiff filed his 173-page complaint on July 22, 2024. ECF No. 1. The complaint itself 14 is very difficult to decipher. The first page contains what appears to be altered summaries of 15 emails, with varied fonts and certain words in bold. ECF No. 1 at 3. For example, plaintiff lists 16 text apparently from an email between “MG Robert Ostenberg, CDR” and “LTC Lisa Windsor 17 (JA USA)” with text below reading “I am going to see if I can get him S-O-M-E PAY (sic) He 18 (CPT(P)G) r-e-f-u-s-e-s RMA’s (sic) and wanted AD Orders---and that can't be done!’ USARC 19 Case File #13-99 (Gon¢alves) pp177.” ECF No. 1 at 3. Under his “Introduction” section, 20 plaintiff writes “Comes now, FOIA Requestor CPT(P) Michael C. Gon¢alves (SC) SAR, as 21 Appellant herein, a ‘Recalled to Active Duty’ Reservist who appeals his Adverse Findings of ‘NO 22 RECORDS FOUND’ from Army SARC-HQ, by the Army’s ‘Primary Initial Denial Authority’ 23 (P-IDA).” Id. at 6. However, the remainder of his complaint does not clearly define a cause of 24 action or clearly relate to a FOIA request. Instead, it contains apparently unrelated, unclear 25 phrases. For example, in a section entitled “Adherence to General Orders & Procedures” plaintiff 26 writes” “Who broke Defendants Contractual Obligation to the soldiers/families of the 319th SIG 27 BN by making unauthorized changes to our RDO-OPORD?” Id. at 8. The complaint contains 28 many undefined acronyms, references, and seemingly disconnected phrases. 1 C. Analysis 2 The complaint does not contain facts supporting any cognizable legal claim against any 3 defendant. The court finds that the complaint consists entirely of fanciful and delusional 4 allegations with no basis on law and no plausible supporting facts. See ECF No. 1. The contents 5 of the complaint are sufficiently unintelligible as to make it clear that leave to amend in this case 6 would not be fruitful. The undersigned will therefore recommend that the complaint be dismissed 7 with prejudice. 8 II. Pro Se Plaintiff’s Summary 9 Your motions to proceed without paying the filing fees are being granted, and you do not 10 have to pay the filing fee. However, the Magistrate Judge has determined that your complaint 11 cannot be served because it does not state any legal claim that the court can consider or resolve. 12 The Magistrate Judge is recommending that your case be dismissed. You have 21 days to file an 13 objection to this recommendation. 14 III. Conclusion 15 In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s application to 16 proceed in forma pauperis (ECF No. 2) is GRANTED. It is further ORDERED that the motion to 17 respond to defendant’s notification that the complaint required sealing (ECF No. 5) is DENIED. 18 Further, IT IS HEREBY RECOMMENDED that all claims against all defendants should 19 be DISMISSED with prejudice. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 22 after being served with these findings and recommendations, plaintiff may file written objections 23 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 24 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 25 //// 26 //// 27 //// 28 //// 1] || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 2 | (9th Cir. 1991). 3 IT IS SO ORDERED. . ~ 4 | DATED: August 28, 2024 tet 2 fA /, 5 ALLISON CLAIRE ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28