1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX LEONARD AZEVEDO, No. 2:24-cv-03025-TLN-EFB (PC) 12 Plaintiff, 13 v. ORDER AND

FINDINGS AND RECOMMENDATIONS

14 THE PEOPLE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). Plaintiff has also filed an application to proceed in forma pauperis. ECF 20 Nos. 2. 21 I. Request to Proceed In Forma Pauperis 22 Plaintiff has not paid the court’s filing fee. He requests leave to proceed in forma pauperis 23 pursuant to 28 U.S.C. § 1915. ECF No. 2. Review of court records reveals that plaintiff has been 24 determined to be a “three strikes” litigant, having had three or more prior cases dismissed for 25 frivolity or failure to state a claim. Azevedo v. Smith, et al., E.D. Cal. Case No. 2:18-cv-02818- 26 TLN-AC, ECF Nos. 5, 7, 16. 27 Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless 28 plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff 1 has not alleged any facts which suggest that he is under imminent danger of serious physical 2 injury. Therefore, the motion to proceed in forma pauperis will be denied. 3 Further, as discussed below, plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 4 477 (1994). 5 II. Screening Requirement and Standards 6 Federal courts must engage in a preliminary screening of cases in which prisoners seek 7 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 8 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 9 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 10 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 11 relief.” Id. § 1915A(b). 12 This standard is echoed in 28 U.S.C. § 1915(e)(2), which requires that courts dismiss a 13 case in which a plaintiff proceeds in forma pauperis at any time if it determines, among other 14 things, that the action “is frivolous or malicious,” “fails to state a claim on which relief may be 15 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” “[The] 16 term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, 17 but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) 18 (discussing the predecessor to modern § 1915(e)(2), former § 1915(d)). Thus, § 1915(e)(2) 19 allows judges to dismiss a claim based on factual allegations that are clearly baseless, such as 20 facts describing “fantastic or delusional scenarios.” Id. at 327-38. 21 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 22 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 23 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 24 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 25 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 26 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 27 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 28 U.S. 662, 679 (2009). 1 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 2 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 3 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 4 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 5 678. 6 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 7 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 8 content that allows the court to draw the reasonable inference that the defendant is liable for the 9 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 10 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 11 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 12 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 13 III. Screening Order 14 Plaintiff’s complaint challenges various aspects of his criminal trial. ECF No. 1. In Heck 15 v. Humphrey and its progeny, the Supreme Court has held that, where a judgment in a prisoner’s 16 favor on § 1983 action would necessarily imply the invalidity of the prisoner’s confinement, the 17 prisoner’s claim is not cognizable until he demonstrates that the sentence or conviction has been 18 invalidated. Heck, 512 U.S. at 483, 486-87. Because it is clear from his complaint that plaintiff’s 19 claims fall within the rule of Heck, this case must be dismissed without prejudice to plaintiff 20 bringing his claim in a petition for writ of habeas corpus. 21 IV. Order and Recommendation 22 Accordingly, it is ORDERED that plaintiff’s request to proceed in forma pauperis (ECF 23 Nos. 2) is DENIED. It is further RECOMMENDED that the complaint be dismissed without 24 prejudice and the Clerk of Court directed to close the case. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 2 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 3 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 4 5 || Dated: December 16, 2025 lin of;

EDMUND F, BRENNAN

6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28