1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN BROSNAN, Case No. 2:25-cv-00741-DC-CSK 12 Plaintiff, ORDER AND FINDINGS AND

RECOMMENDATIONS

13 v.

14 STATE OF CALIFORNIA, (ECF Nos. 2-6) 15 Defendant. 16 17 Plaintiff John Brosnan is representing himself in this action and seeks leave to 18 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915.1 (ECF Nos. 2, 5.) For 19 the reasons that follow, the Court recommends Plaintiff’s IFP applications be denied, and 20 the First Amended Complaint (ECF No. 4) be dismissed without leave to amend. The 21 Court further orders Plaintiff’s motions for e-filing access (ECF Nos. 3, 6) are DENIED. 22 I. MOTION TO PROCEED IN FORMA PAUPERIS 23 28 U.S.C. § 1915(a) provides that the court may authorize the commencement, 24 prosecution or defense of any suit without prepayment of fees or security “by a person 25 who submits an affidavit stating the person is “unable to pay such fees or give security 26 therefor.” This affidavit is to include, among other things, a statement of all assets the 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 28 Civ. P. 72, and Local Rule 302(c). 1 person possesses. Id. The IFP statute does not itself define what constitutes insufficient 2 assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In Escobedo, 3 the Ninth Circuit stated that an affidavit in support of an IFP application is sufficient 4 where it alleges that the affiant cannot pay court costs and still afford the necessities of 5 life. Id. “One need not be absolutely destitute to obtain benefits of the in forma pauperis 6 statute.” Id. Nonetheless, a party seeking IFP status must allege poverty “with some 7 particularity, definiteness and certainty.” Id. According to the United States Department 8 of Health and Human Services, the current poverty guideline for a household of one (not 9 residing in Alaska or Hawaii) is $15,650.00. See U.S. Dpt. Health & Human Service 10 (available at https://aspe.hhs.gov/poverty-guidelines). 11 Here, Plaintiff has made the required showing under 28 U.S.C. § 1915(a). See 12 ECF Nos. 2, 5. However, the Court will recommend Plaintiff’s IFP applications be denied 13 because the action is facially frivolous and without merit because it fails to state a claim. 14 “‘A district court may deny leave to proceed in forma pauperis at the outset if it appears 15 from the face of the proposed complaint that the action is frivolous or without merit.’” 16 Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First 17 Nat. Bank & Tr., 821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee v. Dep’t of Child 18 Support Servs., 584 Fed. App’x 638 (9th Cir. 2014) (“the district court did not abuse its 19 discretion by denying McGee's request to proceed IFP because it appears from the face 20 of the amended complaint that McGee's action is frivolous or without merit”); Smart v. 21 Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court to examine 22 any application for leave to proceed in forma pauperis to determine whether the 23 proposed proceeding has merit and if it appears that the proceeding is without merit, the 24 court is bound to deny a motion seeking leave to proceed in forma pauperis.”). Because 25 it appears from the face of the First Amended Complaint that this action is frivolous and 26 is without merit as discussed in more detail below, the Court recommends denying 27 Plaintiff’s IFP motions. 28 / / / 1 II. SCREENING REQUIREMENT 2 Even if the Court were to grant Plaintiff’s IFP applications, Plaintiff’s First 3 Amended Complaint warrants dismissal pursuant to 28 U.S.C. § 1915(e)’s required pre- 4 answer screening. Pursuant to 28 U.S.C. § 1915(e), the court must screen every in 5 forma pauperis proceeding, and must order dismissal of the case if it is “frivolous or 6 malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary 7 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); 8 Lopez v. Smith, 203 F.3d 1122, 1126-27 (2000) (en banc). A claim is legally frivolous 9 when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 10 325 (1989). In reviewing a complaint under this standard, the court accepts as true the 11 factual allegations contained in the complaint, unless they are clearly baseless or 12 fanciful, and construes those allegations in the light most favorable to the plaintiff. See 13 id. at 326-27; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 14 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011). 15 Pleadings by self-represented litigants are liberally construed. Hebbe v. Pliler, 627 16 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even post-Iqbal). 17 However, the court need not accept as true conclusory allegations, unreasonable 18 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 19 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does 20 not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); 21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 22 To state a claim on which relief may be granted, the plaintiff must allege enough 23 facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A 24 claim has facial plausibility when the plaintiff pleads factual content that allows the court 25 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 26 Iqbal, 556 U.S. at 678. A pro se litigant is entitled to notice of the deficiencies in the 27 complaint and an opportunity to amend unless the complaint’s deficiencies could not be 28 cured by amendment. See Lopez, 203 F.3d at 1130-31; Cahill v. Liberty Mut. Ins. Co., 80 1 F.3d 336, 339 (9th Cir. 1996). 2 III. THE FIRST AMENDED COMPLAINT 3 Plaintiff brings this action against Defendant State of California. First Amended 4 Complaint (“FAC”) ¶ 2 (ECF No. 4). Plaintiff alleges a single cause of action for violation 5 of his First Amendment rights pursuant to 42 U.S.C. § 1983. FAC at 2 (“this action seeks 6 to redress the deprivation, under color of the laws, statutes, ordinances, regulations, 7 customs and usages of the State of California [] of rights, privileges or immunities 8 secured by the United States Constitution and by Acts of Congress.”). The entirety of the 9 allegations in the First Amended Complaint are as follows: 10 Plaintiff was stopped at a stoplight when the rear of the vehicle Plaintiff was driving was crashed into (“Crash”) by a 11 vehicle driven by Emily Bouch (“EB”). Plaintiff contacted EB and obtained the insurance information for the insurer 12 (“Insurer”) of EB, Plaintiff submitted a claim to Insurer that was denied. Plaintiff sought permission to sue EB for injuries 13 suffered in the Crash and was not given permission to file suit against EB (“EB Suit”). 14 15 FAC ¶ 13. Plaintiff alleges Defendant improperly denied Plaintiff’s right to file a suit 16 against Emily Bouch and has therefore violated Plaintiff’s First Amendment rights. 17 FAC ¶¶ 16-17. For relief, Plaintiff seeks damages in the amount of $3 million and other 18 forms of relief. FAC at 2. 19 IV. DISCUSSION 20 A. Eleventh Amendment Immunity 21 Plaintiff names in the First Amended Complaint Defendant State of California. 22 FAC ¶ 2. The Eleventh Amendment shields Defendant State of California from suit. See 23 Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); Ass'n des Eleveurs de 24 Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (“Plaintiffs are 25 plainly barred by the Eleventh Amendment from suing the State of California in federal 26 court.”); Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[A]n unconsenting State is 27 immune from suits brought in federal courts by her own citizens as well as by citizens of 28 another State.”) (citations omitted). “Will establishes that the State and arms of the State, 1 which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit 2 under § 1983 in either federal court or state court.” Howlett v. Rose, 496 U.S. 356, 365 3 (1990) (citing Will, 491 U.S. at 58). Accordingly, because the only defendant Plaintiff has 4 named is the State of California, Plaintiff’s sole claim is barred by the Eleventh 5 Amendment and should be dismissed. 6 B. Federal Rule of Civil Procedure 8 7 Plaintiff’s First Amended Complaint also does not contain a short and plain 8 statement of a claim as required by Federal Rule of Civil Procedure 8. In order to give 9 fair notice of the claims and the grounds on which they rest, a plaintiff must allege with at 10 least some degree of particularity overt acts by specific defendants which support the 11 claims. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Here, the First 12 Amended Complaint does not contain facts supporting any cognizable legal claim 13 against Defendant State of California. 14 A claim under 42 U.S.C. § 1983 requires: “(1) a violation of rights protected by the 15 Constitution or created by federal statute, (2) proximately caused (3) by conduct of a 16 ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 17 (9th Cir. 1991); see also Benavidez v. County of San Diego, 993 F.3d 1134, 1144 (9th 18 Cir. 2021). Although Plaintiff alleges generally his First Amendment rights were violated, 19 Plaintiff’s bare allegations are insufficient to demonstrate Defendant’s connection to, or 20 involvement in any alleged constitutional violations. See Fayle v. Stapley, 607 F.2d 858, 21 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 22 442 U.S. 941 (1979). More importantly, Defendant State of California is immune from 23 suit based on Eleventh Amendment immunity. See Howlett, 496 U.S. at 365. Because 24 Plaintiff’s allegations are insufficient to state a claim and because Defendant State of 25 California is not a proper defendant, the First Amended Complaint fails to state a claim 26 upon which relief may be granted and should be dismissed. 27 Although the Federal Rules adopt a flexible pleading policy, even a pro se 28 litigant’s complaint must give fair notice and state the elements of a claim plainly and 1 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). 2 Based on these deficiencies, the Complaint is subject to dismissal. See McHenry v. 3 Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996) (affirming dismissal of complaint where 4 “one cannot determine from the complaint who is being sued, for what relief, and on 5 what theory, with enough detail to guide discovery”). 6 C. Leave to Amend 7 In considering whether leave to amend should be granted, the Court finds that the 8 First Amended Complaint is without merit and that the only defendant is immune from 9 suit. See generally FAC. The First Amended Complaint does not contain facts supporting 10 any cognizable legal claim against Defendant. In light of the First Amended Complaint’s 11 deficiencies, granting leave to amend would be futile. The First Amended Complaint 12 should therefore be dismissed without leave to amend. See Lopez, 203 F.3d at 1130-31; 13 Cato v. United States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 14 D. Motions for E-filing Access 15 Plaintiff has filed two motions for e-filing access. (ECF Nos. 3, 6.) Plaintiff 16 requests access to the Court’s electronic case filing system. Id. The Local Rules are 17 clear that “any person appearing pro se may not utilize electronic filing except with the 18 permission of the assigned Judge or Magistrate Judge.” See Local Rule 133(b)(2). 19 Plaintiff’s motions for e-filing access do not provide good cause to deviate from this Local 20 Rule. Thus, Plaintiff’s motions are denied. In addition, in light of the recommendation that 21 this action be dismissed, Plaintiff’s motions for e-filing access are also moot. 22 V. CONCLUSION 23 It is HEREBY ORDERED that Plaintiff’s motions for e-filing access (ECF Nos. 3, 24 6) are DENIED. 25 It is FURTHER HEREBY RECOMMENDED that: 26 1. Plaintiff’s motions to proceed in forma pauperis (ECF Nos. 2, 5) be 27 DENIED; 28 2. Plaintiff’s First Amended Complaint (ECF No. 4) be DISMISSED without 1 leave to amend; and 2 3. The Clerk of the Court be directed to CLOSE this case. 3 These findings and recommendations are submitted to the United States District 4 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 5 | 14 days after being served with these findings and recommendations, any party may file 6 || written objections with the Court and serve a copy on all parties. This document should 7 || be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 8 || reply to the objections shall be served on all parties and filed with the Court within 14 9 | days after service of the objections. Failure to file objections within the specified time 10 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 11 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 12 13 | Dated: August 12, 2025 C iy S \U 14 CHI SOO KIM 45 UNITED STATES MAGISTRATE JUDGE 4, bros0741.25 16 17 18 19 20 21 22 23 24 25 26 27 28