Harper v. US et al, No. 3:2017cv01974 - Document 3 (S.D. Cal. 2017)
Court Description: ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. Court dismisses with prejudice Plaintiff's Complaint as frivolous under 28 USC 1915(e)(2)(B)(i). Signed by Judge Cynthia Bashant on 10/3/2017. (All non-registered users served via U.S. Mail Service) (jah)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MONTOREY DANYELL HARPER, 12 Plaintiff, 13 14 Case No. 17-cv-01974-BAS-MDD Case No. 17-cv-01975-BAS-WVG Case No. 17-cv-01980-BAS-BGS Case No. 17-cv-01987-BAS-NLS ORDER: v. (1) GRANTING MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS (ECF No. 2) UNITED STATES, et al., 15 16 Defendants. AND 17 (2) DISMISSING ACTIONS AS FRIVULOUS UNDER 28 U.S.C. § 1915(e)(2) 18 19 20 21 Pending before the Court are four actions filed by Plaintiff Montorey Danyell 22 Harper, proceeding pro se: Case No. 17-cv-01974-BAS-MDD; Case No. 17-cv- 23 01975-BAS-WVG; Case No. 17-cv-01980-BAS-BGS; and Case No. 17-cv-01987- 24 BAS-NLS. Plaintiff also filed identical motions seeking leave to proceed in forma 25 pauperis (“IFP”) in each action. (ECF Nos. 2.) For the reasons outlined below, the 26 Court GRANTS each of Plaintiff’s IFP motions, and DISMISSES WITH 27 PREJUDICE all four complaints as frivolous. 28 –1– 17cv1974, 17cv1975, 17cv1980, 17cv1987 1 I. MOTIONS FOR LEAVE TO PROCEED IFP 2 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay 3 the required fees or security to commence a legal action may petition the court to 4 proceed without making such payment. The determination of indigency falls within 5 the district court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 6 Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 7 typically requires the reviewing court to exercise its sound discretion in determining 8 whether the affiant has satisfied the statute’s requirement of indigency”). It is well- 9 settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. 10 DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the requirements 11 of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one 12 cannot because of his poverty pay or give security for costs . . . and still be able to 13 provide himself and dependents with the necessities of life.” Id. at 339. At the same 14 time, however, “the same even-handed care must be employed to assure that federal 15 funds are not squandered to underwrite, at public expense . . . the remonstrances of a 16 suitor who is financially able, in whole or in material part, to pull his own oar.” 17 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 18 District courts, therefore, tend to reject IFP applications where the applicant 19 can pay the filing fee with acceptable sacrifice to other expenses. See e.g., Stehouwer 20 v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other 21 grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district 22 court did not abuse its discretion in requiring a partial fee payment from a prisoner 23 who had a $14.61 monthly salary and who received $110 per month from family). 24 Moreover, “in forma pauperis status may be acquired and lost during the course of 25 litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 26 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see 27 also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that 28 a plaintiff who was initially permitted to proceed in forma pauperis should be –2– 17cv1974, 17cv1975, 17cv1980, 17cv1987 1 required to pay his $120 filing fee out of a $900 settlement). Finally, the facts as to 2 the affiant’s poverty must be stated “with some particularity, definiteness, and 3 certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 4 While Plaintiff may not meet the requirements under 28 U.S.C. § 1915 for IFP 5 status for one action, having read and considered Plaintiff’s four applications 6 together, the Court finds that Plaintiff does meet the requirements. He has a monthly 7 income of $4,230—$2,915 from disability payments and $1,315 from other sources. 8 (ECF No. 2 at 2.) Plaintiff has $1,495 on a pre-paid card, but no other assets. (Id. at 9 2.) Plaintiff states he has monthly expenses of $3,965 (though only itemizes $3,880 10 of expenses). His expenses include housing ($2,670), food ($800), clothing ($80), 11 laundry and dry cleaning ($80), transportation ($100), and “recreation, entertainment, 12 newspapers, magazines, etc.” ($100). (Id. at 4.) He does not list any expenses for 13 medical expenses, though he states he is disabled. (Id. at 4-5.) Weighing the income 14 against expenses, Plaintiff has a monthly net gain of approximately $265. Under 15 these circumstances and considering that Plaintiff would have to pay filing fees in 16 four actions, the Court finds that requiring Plaintiff to pay the court filing fees would 17 impair his ability to obtain the necessities of life. See Adkins, 335 U.S. at 339. In light of the foregoing, the Court GRANTS Plaintiff’s applications to 18 19 proceed in forma pauperis. (ECF Nos. 2.) 20 21 II. SCREENING UNDER 28 U.S.C. § 1915(e) 22 Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action where 23 the plaintiff is proceeding IFP if the court determines that the action “is frivolous or 24 malicious.” An IFP complaint “is frivolous if it has ‘no arguable basis in fact or law.’” 25 O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quoting Franklin v. Murphy, 26 745 F.2d 1221, 1228 (9th Cir. 1984)). This standard grants the court “the unusual 27 power to pierce the veil of the complaint’s factual allegations and dismiss those 28 claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. –3– 17cv1974, 17cv1975, 17cv1980, 17cv1987 1 319, 327 (1989). Consequently, “a court is not bound, as it usually is when making a 2 determination based solely on the pleadings, to accept without question the truth of 3 the plaintiff’s allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). 4 Clearly baseless factual allegations include those “that are ‘fanciful,’ 5 ‘fantastic,’ and ‘delusional.’” Denton, 504 U.S. at 32–33 (quoting Neitzke v. 6 Williams, 490 U.S. 319, 325, 327, 328 (1989)). Accordingly, “a finding of factual 7 frivolousness is appropriate when the facts alleged rise to the level of the irrational 8 or the wholly incredible, whether or not there are judicially noticeable facts available 9 to contradict them.” Id. at 33. These outlandish claims are those “with which federal 10 district judges are all too familiar.” Neitzke, 490 U.S. at 328. Thus, district courts 11 have dismissed as frivolous an assortment of complaints containing clearly baseless 12 factual allegations. See, e.g., Frost v. Vasan, No. 16-cv-05883 NC, 2017 WL 13 2081094, at *1 (N.D. Cal. May 15, 2017) (secret conspiracy involving a U.S. Senator, 14 a university, and the CIA); Suess v. Obama, No. CV 17-01184-JAK (DTB), 2017 15 WL 1371289, at *2 (C.D. Cal. Mar. 10, 2017) (conspiracy involving former President 16 Barack Obama, the CIA, and the FBI); Demos v. United States, 2010 WL 4007527, 17 at *2 (D. Ore. Oct. 8, 2010) (kidnapping involving law enforcement officers 18 disguised as pirates). 19 20 Here, though it is difficult to decipher, Plaintiff alleges the following for each action: 21 Case No. 17-cv-01974-BAS-MDD: Plaintiff files this action against the 22 United States, Washington, DC, the United Nations, and New York City. Plaintiff 23 alleges that the President-elect of France and “his audience” “singled out” Plaintiff. 24 (Compl. at 1.) He further alleges that, because the French President-elect allegedly 25 gave a part of his speech off script, the election was “perverted as young blacks where 26 shown to darkened and looked pale,” which Plaintiff interpreted as a showing of an 27 “assault” of the French people. (Id.) Therefore, Plaintiff states that he includes 28 “France as property” because neither Defendants nor the President-elect stated that –4– 17cv1974, 17cv1975, 17cv1980, 17cv1987 1 “something is wrong with the world.” (Id. at 2.) Plaintiff “demands an unlimited 2 enormous enormous amount.” (Id.) 3 Case No. 17-cv-01975-BAS-WVG: Plaintiff files this action against the 4 United States, the United Nations, NATO, and the City of San Diego. He alleges that 5 an assault occurred that “has more to do with ego than anything else and it is brazened 6 since it is a lie,” and that Defendants are being “demeaning and scary.” (Compl. at 7 1.) Plaintiff further alleges that he lacks information to describe the “attack” because 8 he lacks “common knowledge in circles of Obama and Trump.” (Id.) He does cite to 9 an email he sent (to whom is not stated) where he alleges that “Obama [is] assaulting 10 now like he is in a classified room setting with generals . . . and that its pressure from 11 him to get something started. He will be sued in US courts and the US. So, Obama is 12 pressuring others.” (Id. at 2.) Because of these allegations, Plaintiff further alleges 13 that he is “just stuck here to go through it” and has suffered mental anguish. (Id.) 14 Plaintiff requests “enormous enormous unlimited amount [of] money.” (Id.) 15 Case No. 17-cv-01980-BAS-BGS: Plaintiff files this action against the United 16 States, Washington, DC, the United Nations, and New York City, though he lists 17 additional defendants in his Complaint, including the States of Virginia and North 18 Carolina, Ralphs, and the San Diego Police Department. Plaintiff alleges that he can 19 “tell when people who should be regular store goers . . . become a tool of the hate” 20 of Defendants, who are allegedly angry about Plaintiff’s lawsuits and “particular 21 stereotypical social norms of the plaintiff or former norms like veganism and 22 running.” (Compl. at 1-2.) Plaintiff requests “unlimited amount of money and that it 23 be enormous enormous.” (Compl. at 2.) 24 Case No. 17-cv-01987-BAS-NLS: Plaintiff files this action against the United 25 States, Washington, DC, the United Nations, New York City, NATO, the City of San 26 Diego, US Congress, and US Senate. He states that “spiritual assaults” have 27 contaminated food, water, health, and noise, causing him “very very bad[]” harm. 28 (Compl. at 2.) He further alleges that “the assaults include well known people” and –5– 17cv1974, 17cv1975, 17cv1980, 17cv1987 1 that “it is a weapon as described to the FBI.” (Id.) He further cites to and quotes an 2 email he sent to the “government” on June 17, 2017 on the same topic. (Id.) (stating, 3 among other things, that various government officials are “not going to get away with 4 it,” referring to the spiritual assaults). Lastly, Plaintiff alleges that hotels where 5 Plaintiff stays are “being moved or [are] moving” and “mak[ing] these attacks already 6 bad worse by projecting themselves and the plaintiff can see them and they’re yelling, 7 spitting, fighting and hurting the plaintiff.” (Id.) 8 Having reviewed the allegations in Plaintiff’s four complaints, the Court 9 concludes each complaint is fantastical and clearly baseless. See Neitzke, 490 U.S. at 10 325; see also 28 U.S.C. § 1915(e)(2)(B)(i); DeRock v. Sprint-Nextel, 603 F. App’x 11 556, 558 (9th Cir. 2015) (affirming dismissal of nine actions as either frivolous or 12 failing to state a claim because the plaintiff alleged “unsupported legal conclusions 13 and fanciful factual allegations”). In addition, because each complaint is frivolous, 14 the Court does not grant Plaintiff leave to amend. See Lopez v. Smith, 203 F.3d 1122, 15 1127 n.8 (9th Cir. 2000) (“When a case may be classified as frivolous or malicious, 16 there is, by definition, no merit to the underlying action and so no reason to grant 17 leave to amend.”). 18 19 III. CONCLUSION 20 For the foregoing reasons, the Court GRANTS Plaintiff’s motions to proceed 21 in forma pauperis. (ECF Nos. 2.) Further, the Court DISMISSES WITH 22 PREJUDICE Plaintiff’s four complaints as frivolous under 28 U.S.C. § 23 1915(e)(2)(B)(i). 24 IT IS SO ORDERED. 25 26 DATED: October 3, 2017 27 28 –6– 17cv1974, 17cv1975, 17cv1980, 17cv1987
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