1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SERGEI PORTNOY, No. 2:19–cv–1863–KJM–KJN (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

AND ORDER

13 v. (ECF Nos. 1 and 2.) 14 UNITED STATES OF AMERICA, 15 Defendants. 16 17 On September 18, 2019, Plaintiff filed the instant action against Defendant “United States 18 of America,” and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 19 (ECF No. 2.) Plaintiff’s application in support of his request to proceed in forma pauperis makes 20 the showing required by 28 U.S.C. § 1915. Accordingly, the Court grants Plaintiff’s request to 21 proceed in forma pauperis. 22 The determination that a plaintiff may proceed in forma pauperis does not complete the 23 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any 24 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 26 an immune defendant. A claim is legally frivolous when it lacks an arguable basis either in law 27 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. 28 § 636(b)(1). 1 or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 2 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based 3 on an indisputably meritless legal theory. Neitzke, 490 U.S. at 327. Pro se pleadings are liberally 4 construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police 5 Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the 6 defects of a complaint, a pro se plaintiff proceeding in forma pauperis is ordinarily entitled to 7 notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 8 (9th Cir. 1987) superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 9 (9th Cir.2000)) (en banc); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). 10 Here, Plaintiff’s complaint concerns a 2013 order declaring him a vexatious litigant. (See 11 Case No. 2:13–cv–43–MCE–EFB at ECF No. 67.) Plaintiff requests this order be voided, as he 12 asserts he was not given notice of the court’s intent to label him a vexatious litigant, nor was he 13 given an opportunity to be heard on this issue. (ECF No. 1.) However, a review of the docket in 14 the prior case reveals that Plaintiff has already raised this issue before Judge England, who 15 considered the issue as a motion for reconsideration. (See No. 2:13–cv–43–MCE–EFB at ECF 16 Nos. 70, 72.) There, Judge England determined that Plaintiff in fact had received notice of the 17 vexatious litigant issue, and held a hearing on it; reconsideration was therefore denied. (Id. at 18 ECF No. 72.) Plaintiff’s current complaint is merely an invective–filled reassertion of his 19 previous arguments. (See ECF No. 1.) Thus, Plaintiff’s complaint is legally frivolous, and 20 should be dismissed with prejudice. Neitzke, 490 U.S. at 327. Further, given this context, 21 amendment would be futile. Noll, 809 F.2d at 1448. 22 Accordingly, IT IS HEREBY RECOMMENDED that: 23 1. The action be DISMISSED WITH PREJUDICE; and 24 2. The Clerk of Court be directed to CLOSE this case. 25 In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 26 discovery, and motion practice in this action are stayed pending resolution of the findings and 27 recommendations. With the exception of objections to the findings and recommendations and 28 any non-frivolous motions for emergency relief, the court will not entertain or respond to any 1 | motions and other filings until the findings and recommendations are resolved. 2 These findings and recommendations are submitted to the United States District Judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 4 | days after being served with these findings and recommendations, any party may file written 5 | objections with the court and serve a copy on all parties. Such a document should be captioned 6 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 7 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 8 | objections. The parties are advised that failure to file objections within the specified time may 9 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 10 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 11 | IT IS SO ORDERED AND RECOMMENDED. 12 | Dated: September 23, 2019 i Aectl Aharon 14 KENDALL J. NE port.1863 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28