1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE CHILDRESS, JR., Case No.: 3:19-cv-0319 CAB (BLM) No. 25851-039, 12

ORDER DISMISSING COMPLAINT

Plaintiff, 13 PURSUANT vs. TO 28 U.S.C. § 1915(e)(2) AND 14 § 1915A(b)(1)

15

KRAIG PALMER,

16 Defendant. 17 18 19 20 On February 13, 2019, Robert Lee Childress (“Plaintiff”), currently housed at the 21 Otay Mesa Detention Center located in San Diego, California, filed this civil rights 22 action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff also filed a Motion to 23 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) which was 24 GRANTED by the Court on May 10, 2019. (ECF Nos. 2, 5.) 25 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 26 A. Standard of Review 27 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 28 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 1 statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of 2 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 3 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 4 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 5 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 6 the targets of frivolous or malicious suits need not bear the expense of responding.’” 7 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 11 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 12 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 14 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 15 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 16 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 20 relief [is] ... a context-specific task that requires the reviewing court to draw on its 21 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 22 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 23 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 24 (9th Cir. 2009). 25 B. Plaintiff’s Factual Allegations 26 Plaintiff alleges that he is the “owner and founder of Exoticar International Auto 27 Sales.” (Comp. at 2.) Plaintiff claims to own several vehicles which he alleges were 28 “searched and seized” by Defendant Palmer. (Id.) 1 Plaintiff alleges that “[o]n October 4, 2016, Palmer “illegally searched and seized 2 in ‘bad faith’” several of his vehicles “without a warrant.” (Id. at 3.) In addition, he 3 claims Palmer “obtained a federal search and arrest warrant in ‘bad faith’ for bank fraud.” 4 (Id.) On November 2, 2016, Plaintiff “was federally indicted for wire fraud.” (Id.) His 5 criminal defense attorney “filed a motion to preserve all evidence seized with and without 6 a warrant” which was granted by the court. (Id.) However, Plaintiff alleges Palmer “was 7 secretly disposing of the property without Plaintiff’s consent, authorization or 8 knowledge.” (Id.) 9 Plaintiff seeks $14,875,000 in compensatory damages and $7,312,000 in punitive 10 damages. (Id. at 4.) 11 C. Duplicative claims 12 These are claims that are duplicative of those Plaintiff previously raised in 13 Childress v. Palmer, et al., S.D. Civil Case No. 3:18-cv-00514-CAB-BLM (“Childress 14 I”) A court “‘may take notice of proceedings in other courts, both within and without the 15 federal judicial system, if those proceedings have a direct relation to matters at issue.’” 16 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, 17 Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). A prisoner’s complaint is considered 18 frivolous if it “merely repeats pending or previously litigated claims.” Cato v. United 19 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) 20 (citations and internal quotations omitted). 21 In Childress I, Plaintiff claimed that on “October 4, 2015, FBI Agency Kraig 22 Palmer illegally searched and seized” his vehicles “without a warrant.” (Childress I, 23 Compl., ECF No. 1 at 3.) In addition, Plaintiff alleged that he “just learned that [his] 24 property, illegally searched and seized” had been “disposed of without ‘notice’ or [his] 25 consent.” (Id. at 5.) These claims are virtually identical to the claims Plaintiff has 26 brought in this action and are against the same Defendant. 27 Therefore, because Plaintiff already filed an action with identical claims presented 28 in the instant action, the Court must dismiss the duplicative claims brought in this action 1 || pursuant to 28 U.S.C. § 1915(e) (2) & 1915A(b). See Cato, 70 F.3d at 1105 n.2; Resnick, 2 F.3d at 446 n. 3 Conclusion and Order 4 Accordingly, the Court: 5 1) DISMISSES Plaintiff's Complaint as frivolous pursuant to 28 U.S.C. 6 1915(e)(2) and § 1915A(b); 7 2) DENIES leave to amend as futile, see Lopez, 203 F.3d at 1127; Schmier v. 8 || U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) 9 || (recognizing “[f]utility of amendment” as a proper basis for dismissal without leave to 10 amend); 11 3) | CERTIFIES that an IFP appeal of this dismissal would not be taken in good 12 || faith pursuant to 28 U.S.C. § 1915(a)(3); and 13 4) DIRECTS the Clerk to enter a final judgment and close the file. 14 IT IS SO ORDERED. 15 Dated: September 26, 2019 € Z 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 4