Pianka v. United States of America et al

Filing 8

ORDER granting 2 Plaintiff's Application/Motion for Leave to Proceed In Forma Pauperis and denying as moot 3 Plaintiff's Motion for Injunctive Hearing; denying as moot 4 Motion for Evidentiary Hearing and denying as moot 6 Plaint iff's Application/Motion for Leave to Proceed In Forma Pauperis. The Complaint (Doc. 1 ) is dismissed as frivolous and duplicative, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and the Clerk must enter judgment. Signed by Judge David G Campbell on 9/18/15.(LSP)

1
2

MH
WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Victor Pianka,

10
11
12

No. CV 15-1687-PHX-DGC (MHB)
Plaintiff,

v.

ORDER

United States of America, et al.,

13

Defendants.

14
15

Plaintiff Victor Pianka, who is confined in the Eloy Detention Center, has filed a

16

pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and two Applications

17

to Proceed In Forma Pauperis (Docs. 2, 6).

18

Injunctive Hearing (Doc. 3) and a Motion for Evidentiary Hearing (Doc. 4). The Court

19

will dismiss the Complaint as frivolous and duplicative. Plaintiff’s Motion for Injunctive

20

Hearing and Motion for Evidentiary Hearing will be denied as moot.

21

I.

22

Plaintiff has also filed a Motion for

Applications to Proceed In Forma Pauperis and Filing Fee
Plaintiff’s August 25, 2015 Application to Proceed In Forma Pauperis will be

23

granted.

24

commenced, an immigration detainee. There do not appear to be any criminal charges

25

pending against him at this time. Accordingly, Plaintiff is not subject to the filing fee

26

provisions of the Prison Litigation Reform Act, and he will be allowed to proceed

27

without payment of the filing fee. Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005);

28

28 U.S.C. § 1915(a).

Plaintiff is and was, at the time this action was

1

Agyeman v. INS, 296 F.3d 871, 885-86 (9th Cir. 2002). Plaintiff’s September 10, 2015

2

Application to Proceed In Forma Pauperis will be denied as moot.

3

II.

4
5

Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted
in forma pauperis status, the Court

6

shall dismiss the case at any time if the court determines that
. . . the action or appeal–(i) is frivolous or malicious; (ii) fails
to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.

7
8
9
10

Statutory Screening

28 U.S.C. § 1915(e)(2)(B).

11

A pleading must contain a “short and plain statement of the claim showing that the

12

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

13

does not demand detailed factual allegations, “it demands more than an unadorned, the-

14

defendant-unlawfully-harmed-me accusation.”

15

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

16

conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

17

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

18

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

19

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual

20

content that allows the court to draw the reasonable inference that the defendant is liable

21

for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

22

claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

23

on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

24

specific factual allegations may be consistent with a constitutional claim, a court must

25

assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

26

at 681.

27

But as the United States Court of Appeals for the Ninth Circuit has instructed,

28

courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

-2-

1

342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

2

stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

3

Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

4

III.

Complaint

5

In his two-count First Amended Complaint, Plaintiff asserts violations of his

6

Fourth, Fifth, Eighth, and Fourteenth Amendment rights. He also asserts a violation of

7

42 U.S.C. § 1981.

8

America; President Barack Obama; Attorney General Eric Holder; Secretary of the

9

Department of Homeland Security (“DHS”) Jeh Johnson; Federal Bureau of

10

Investigations (“FBI”) Director James Comey; Eloy Detention Center Employees Joseph

11

Duran, Sepulveda,1 Phillip Farabough, Smith, Rosemarie Kelly, ten unidentified Nurses

12

(“Does #1-10”), Durham, Sebastian, John Cantu, Jon Gruelle, Brett Day, and Patricia

13

Vroom; FBI Agents Douglas Price, Andrew Black, Mark Cwynar, John Lannarelli, Sean

14

Kaul, George Steuer, and Johnson; DHS Employees Charleston, Smith, Shane Kitchen,

15

and Lopez; the “Office Inspector General”; “DHS Civil Rights Civil Liberties”; and an

16

individual identified as “X-Ray Tech at AZ-Tech Radiology” (“Doe #11”).

17

Request for Relief, Plaintiff seeks $200 million in compensatory damages.

Plaintiff names the following Defendants: the United States of

In his

18

In Count One of the Complaint, Plaintiff alleges that his Fifth, Eighth, and

19

Fourteenth Amendment rights were violated, along with 42 U.S.C. § 1981, by “x-ray

20

fraud.” Plaintiff alleges that he has “over fifty pet locator chips” under his skin that are

21

“constantly signaled to vibrate, shock, . . . cause pain[,] and make [Plaintiff] lose sleep.”

22

According to the Complaint, these chips were injected under his skin by “people [who]

23

organized the murder of his father for life insurance money and literally planned his

24

deportation.” Plaintiff appears to allege that Defendant Duran received a cash bribe for

25

changing out an x-ray of Plaintiff that would have revealed the existence of these chips.

26

Defendant Sepulveda should be held liable, Plaintiff claims, because “she is the one that

27

ordered the x-ray and ignored the fact that she felt the bumps” that indicated the location

28
1

This Defendant is also referred to in the Complaint as “Sepulvida.”
-3-

1

of the pet locator chips. Defendants Farabough and Smith ignored Plaintiff’s grievances

2

regarding the chips, and Defendants Kelly, Does #1-10, Durham, and Sebastian ignored

3

Plaintiff’s allegations regarding the fraud that was being committed against him. In

4

addition, Defendant Kelly misdiagnosed Plaintiff as delusional. Plaintiff alleges that he

5

has written to Defendants Price, Black, Cwynar, Lannarelli, Kaul, and Comey “every

6

single week this year” about the fraud being committed against him, but he has not

7

received any response from these Defendants. Defendant Steuer sent Defendant Johnson

8

to speak with Plaintiff, but Johnson failed to follow through with his investigation.

9

Plaintiff alleges that he filed three DHS Civil Rights and Civil Liberties complaints but

10

all were ignored. Defendants Charleston, Kitchen, Smith, Lopez, Cantu, Gruelle, and

11

Office Inspector General all ignored Plaintiff’s claim as well. In addition, Doe #11

12

“committed fraud again” by “plann[ing] for [Plaintiff] not to be able to prove” that he has

13

pet locator chips under his skin.

14

In Count Two, Plaintiff asserts violations of the Fourth Amendment, the Fifth

15

Amendment, and 42 U.S.C. § 1981 based on “document fraud.” According to Plaintiff,

16

the individuals who planned his father’s murder also conspired to have him deported

17

beginning in the summer of 2001, after he was released from immigration detention.

18

Plaintiff alleges that he was kidnapped one week after his release from detention and

19

forced to falsify several documents “to make it seem that [his] father was not [his] father

20

so [Plaintiff] could not derive citizenship from him.” The same individuals moved the

21

photograph on his mother’s naturalization certificate to cover her signature. Defendant

22

Vroom “made it seem like [Plaintiff] filed a N-600 for it to be denied by a District

23

Director at that time.” According to Plaintiff, DHS has “knowingly adopt[ed] inadequate

24

procedures regarding fraud complaints and . . . fraud committed against a detainee[] by

25

DHS employees,” resulting in violations of his due process rights. Plaintiff has written to

26

Defendants Price, Black, Cwynar, Lannarelli, Kaul, and Comey “every single week this

27

year” concerning the fraud that has been committed against him and “several murders” he

28

has witnessed, but he has not received a response. As noted above, Defendant Steuer sent

-4-

1

Defendant Johnson to speak with Plaintiff, but Steuer has not followed up on his

2

investigation. Plaintiff’s DHS Civil Rights and Civil Liberties complaint was ignored by

3

Defendant Charleston. Defendants Cantu, Gruelle, Holder, Obama, and Office Inspector

4

General have all failed to respond to Plaintiff’s complaints of document fraud. As a

5

result, Plaintiff has endured “3 unlawful detentions a year for over 12 year[s].” During

6

Plaintiff’s detention, he has allegedly suffered multiple physical and psychological

7

injuries, including, but not limited to, rape, sodium pentothal injections, force-feedings,

8

and death threats.

9

IV.

Dismissal of Complaint

10

Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), the Court must dismiss a case

11

proceeding in forma pauperis if the court determines that the action or complaint is

12

“frivolous or malicious.” When evaluating claims under this standard, the Court “is not

13

bound, as it usually is when making a determination based solely on the pleadings, to

14

accept without question the truth of the plaintiff=s allegations.” Denton v. Hernandez,

15

504 U.S. 25, 32 (1992).

16

“[A] court may dismiss a claim as factually frivolous only if the facts alleged are

17

‘clearly baseless,’ a category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and

18

‘delusional.’” Id. at 32-33 (citations omitted). “[A] finding of factual frivolousness is

19

appropriate when the facts alleged rise to the level of the irrational or the wholly

20

incredible.” Id. at 33. Plaintiff alleges in Count One that Defendants have refused to

21

acknowledge that the individuals responsible for the murder of his father have injected

22

him with pet locator chips that they use to shock him, cause him pain, and keep him

23

awake. In Count Two, he asserts that Defendants have prevented him from establishing

24

that the same individuals who conspired to kill his father kidnapped Plaintiff and forced

25

him to falsify immigration documents in an effort to get him deported. The Court finds

26

these claims to be factually frivolous, and Counts One and Two will be dismissed on that

27

basis. In the alternative, the Court draws on its judicial experience and common sense to

28

determine that Plaintiff’s allegations are implausible on their face, see Iqbal, 556 U.S. at

-5-

1

678, and therefore fail to state a claim for relief. See 28 U.S.C. § 1915(e)(2)(B)(ii).

2

Plaintiff’s Complaint is also frivolous to the extent it raises claims that have

3

already been adjudicated in this Court. An in forma pauperis complaint that merely

4

repeats pending or previously litigated claims may be dismissed as frivolous or

5

malicious. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing

6

former 28 U.S.C. § 1915(d)) (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.

7

1988)). A complaint repeating the same factual allegations asserted in an earlier case,

8

even if now filed against a new defendant, is subject to dismissal pursuant to 28 U.S.C.

9

§ 1915 as duplicative and frivolous. See Bailey, 846 F.2d at 1021.

10

In Pianka v. DeRosa, CV 14-2644-PHX-DGC (MHB), Plaintiff filed a civil action

11

asserting multiple violations of his constitutional rights. One of the counts in Plaintiff’s

12

second amended complaint alleged that Plaintiff had more than fifty pet locator chips

13

under his skin and that multiple Defendants—including Duran, Sepulveda, Farabough,

14

Smith, Kelly, Sebastian, and Durham—refused to acknowledge the existence of these

15

chips. (Doc. 10 in CV 14-2644-PHX-DGC (MHB) at 13). Another count alleged that

16

Defendants Charleston, Kitchen, Vroom, and Johnson, among others, violated Plaintiff’s

17

due process rights by failing to address his claims that his immigration file had been

18

tampered with and documents falsified in order to “make it seem like [his] father was not

19

[his] father.” (Doc. 10 in CV 14-2644-PHX-DGC (MHB) at 6). These counts were

20

dismissed for failure to state a claim in a May 18, 2015 Order (Doc. 14 in CV 14-2644-

21

PHX-DGC (MHB)). An order dismissing that action was entered the same date. (Doc.

22

15 in CV 14-2644-PHX-DGC (MHB)). Plaintiff’s appeal from those Orders is currently

23

pending in the Ninth Circuit. See Pianka v. DeRosa, No. 15-16241 (9th Cir.).

24

Accordingly, the Court will dismiss Plaintiff’s Complaint, and this action, as

25

frivolous and duplicative of Pianka v. DeRosa, CV 14-2644-PHX-DGC (MHB). In light

26

of the Court’s dismissal of the Complaint, Plaintiff’s Motion for Injunctive Hearing and

27

Motion for Evidentiary Hearing will be denied as moot.

28

....

-6-

1
2
3
4
5
6
7
8
9
10

IT IS ORDERED:
(1)

Plaintiff’s August 25, 2015 Application to Proceed In Forma Pauperis

(Doc. 2) is granted.
(2)

Plaintiff’s September 10, 2015 Application to Proceed In Forma Pauperis

(Doc. 6) is denied as moot.
(3)

The Complaint (Doc. 1) is dismissed as frivolous and duplicative, pursuant

to 28 U.S.C. § 1915(e)(2)(B)(i), and the Clerk of Court must enter judgment accordingly.
(4)

Plaintiff’s Motion for Injunctive Hearing (Doc. 3) and Motion for

Evidentiary Hearing (Doc. 4) are denied as moot.
Dated this 18th day of September, 2015.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-