Kellogg v. Wilson et al

Filing 17

ORDER DISMISSING CASE AS FRIVOLOUS. Court denies Plaintiff's 14 Motion for Miscellaneous Relief, 12 Motion for Temporary Restraining Order. Because Plaintiff's 8 First Amended Complaint merely repeats claims that were previously dismi ssed or contains factual allegations that are clearly baseless, Court dismisses Plaintiff's First Amended Complaint with prejudice as frivolous under 28 USC 1915(e)(2)(B)(i). Signed by Judge Cynthia Bashant on 7/11/2017. (All non-registered users served via U.S. Mail Service)(jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 KENDRICK BANGS KELLOGG, Plaintiff, 14 15 16 17 Case No. 17-cv-00353-BAS-AGS ORDER: (1) DENYING PLAINTIFF’S MOTIONS FOR EMERGENCY RELIEF (ECF Nos. 12, 14); AND v. JULIE WILSON, et al., (2) DISMISSING ACTION AS FRIVOLOUS UNDER 28 U.S.C. § 1915(e)(2) Defendants. 18 19 20 Plaintiff Kendrick Bangs Kellogg is proceeding pro se—without an attorney. 21 Previously, the Court granted Plaintiff’s motion to proceed in forma pauperis 22 (“IFP”)—without prepaying court fees or costs—but dismissed his Complaint for 23 failing to state a claim. (ECF No. 6.) See also 28 U.S.C. § 1915(e)(2). Plaintiff has 24 since filed a First Amended Complaint (ECF No. 8) and two motions seeking 25 emergency relief (ECF Nos. 12, 14). For the following reasons, the Court denies 26 Plaintiff’s emergency motions and dismisses his First Amended Complaint as 27 frivolous under 28 U.S.C. § 1915(e)(2). 28 –1– 17cv0353 1 I. Motions for Emergency Relief 2 Presently before the Court are two motions filed by Plaintiff seeking 3 emergency relief. First, Plaintiff filed an “Immediate Request for Motion from the 4 Court.” (ECF No. 12.) Plaintiff includes in this request a fictional newspaper article 5 from the Road Runner News titled: Is the Justice Department Stealing Tractors Now? 6 Plaintiff asks in the article why the U.S. Department of Justice is allegedly “out of 7 the blue” allowing its “agents and/or [its] informa[nts] to take those large yellow 8 crawler John Deere tractors” from a property purportedly near Palomar Mountain in 9 northern San Diego County. He further alleges the Justice Department’s “agents 10 and/or informers” have threatened him and may take “things that [Plaintiff] needs for 11 court and to live.” Thus, Plaintiff seeks an “immediate court order” against the Justice 12 Department to “not allow agents and/or informers, and/or others to cause any more 13 injury/damages to [Plaintiff].” 14 Second, Plaintiff filed an “Emergency Notice to the Court Only.” (ECF No. 15 14.) In this notice, Plaintiff alleges the Justice Department’s “agents and/or 16 informants . . . are now controlling all communications” and he “is on target now . . 17 . to have anything happen to [Plaintiff] (death included), to stop [Plaintiff] from going 18 to trial by jury.” Plaintiff therefore “formally deman[d]s 100% protection from the 19 Court from now on” and requests the Court “com[m]unicate by land only!” 20 The Court construes Plaintiff’s requests as seeking injunctive relief. To obtain 21 this relief, Plaintiff must demonstrate that (1) “he is likely to succeed on the merits,” 22 (2) “he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) 23 “the balance of equities tips in his favor,” and (4) “an injunction is in the public 24 interest.” See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). An 25 injunction is an extraordinary remedy that is proper only if the requirements for 26 injunctive relief are satisfied. Id. at 22. Here, having reviewed Plaintiff’s requests, 27 the Court finds Plaintiff does not meet his burden of demonstrating “he is likely to 28 –2– 17cv0353 1 suffer irreparable harm in the absence of preliminary relief.” See id. at 20. 2 Consequently, the Court denies his motions for emergency relief. 3 4 II. Screening Under 28 U.S.C. 1915(e) 5 Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action where 6 the plaintiff is proceeding IFP if the court determines that the action “is frivolous or 7 malicious.” An IFP complaint “is frivolous if it has ‘no arguable basis in fact or law.’” 8 O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quoting Franklin v. Murphy, 9 745 F.2d 1221, 1228 (9th Cir. 1984)). This standard grants the court “the unusual 10 power to pierce the veil of the complaint’s factual allegations and dismiss those 11 claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 12 319, 327 (1989). Consequently, “a court is not bound, as it usually is when making a 13 determination based solely on the pleadings, to accept without question the truth of 14 the plaintiff’s allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). 15 Clearly baseless factual allegations include those “that are ‘fanciful,’ 16 ‘fantastic,’ and ‘delusional.’” Denton, 504 U.S. at 32–33 (quoting Neitzke v. 17 Williams, 490 U.S. 319, 325, 327, 328 (1989)). Accordingly, “a finding of factual 18 frivolousness is appropriate when the facts alleged rise to the level of the irrational 19 or the wholly incredible, whether or not there are judicially noticeable facts available 20 to contradict them.” Id. at 33. These outlandish claims are those “with which federal 21 district judges are all too familiar.” Neitzke, 490 U.S. at 328. Thus, district courts 22 have dismissed as frivolous an assortment of complaints containing clearly baseless 23 factual allegations. See, e.g., Frost v. Vasan, No. 16-cv-05883 NC, 2017 WL 24 2081094, at *1 (N.D. Cal. May 15, 2017) (secret conspiracy involving a U.S. Senator, 25 a university, and the CIA); Suess v. Obama, No. CV 17-01184-JAK (DTB), 2017 26 WL 1371289, at *2 (C.D. Cal. Mar. 10, 2017) (conspiracy involving former President 27 Barack Obama, the CIA, and the FBI); Demos v. United States, 2010 WL 4007527, 28 –3– 17cv0353 1 at *2 (D. Ore. Oct. 8, 2010) (kidnapping involving law enforcement officers 2 disguised as pirates). 3 In addition, an IFP complaint “that merely repeats pending or previously 4 litigated claims” is subject to dismissal as frivolous. See Cato v. United States, 70 5 F.3d 1103, 1105 n.2 (9th Cir. 1995) (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 6 (5th Cir. 1988)); see also Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) 7 (affirming dismissal of plaintiff’s claims as “frivolous or malicious” where the 8 plaintiff’s four previous actions concerning the same issue were dismissed for lack 9 of subject matter jurisdiction). 10 Here, the Court previously dismissed Plaintiff’s Complaint for failing to state 11 a claim. (ECF No. 6.) Specifically, the Court noted Plaintiff’s claims that (i) he was 12 wrongfully assessed taxes and (ii) his Social Security was wrongfully seized had 13 already been dismissed in a prior case and were therefore barred by the doctrines of 14 res judicata and collateral estoppel. (Id.) Plaintiff repeats these same claims in his 15 First Amended Complaint. (See ECF No. 8.) Thus, the Court finds the portion of 16 Plaintiff’s First Amended Complaint that discusses these claims “merely repeats 17 pending or previously litigated claims” and is subject to dismissal as frivolous. See 18 Cato, 70 F.3d at 1105 n.2; Franklin, 745 F.2d at 1230. 19 Further, the Court finds Plaintiff’s remaining allegations regarding illegal 20 entrapment, his state court divorce proceedings in the early 1990s, damages to a 21 “school,” and various IRS and Department of Justice conspiracies to be clearly 22 baseless. See Denton, 504 U.S. at 32–33; Neitzke, 490 U.S. at 328. The Court will 23 therefore also dismiss the remainder of Plaintiff’s First Amended Complaint as 24 frivolous. See Neitzke, 490 U.S. at 325; see also 28 U.S.C. § 1915(e)(2)(B)(i); 25 DeRock v. Sprint-Nextel, 603 F. App’x 556, 558 (9th Cir. 2015) (affirming dismissal 26 of nine actions as either frivolous or failing to state a claim because the plaintiff 27 alleged “unsupported legal conclusions and fanciful factual allegations”). In addition, 28 because the First Amended Complaint is frivolous, the Court does not grant Plaintiff –4– 17cv0353 1 leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (“When 2 a case may be classified as frivolous or malicious, there is, by definition, no merit to 3 the underlying action and so no reason to grant leave to amend.”). 4 5 III. CONCLUSION 6 For the foregoing reasons, the Court DENIES Plaintiff’s motions for 7 emergency relief (ECF Nos. 12, 14). Further, because Plaintiff’s First Amended 8 Complaint (ECF No. 8) merely repeats claims that were previously dismissed or 9 contains factual allegations that are clearly baseless, the Court DISMISSES WITH 10 PREJUDICE Plaintiff’s First Amended Complaint as frivolous under 28 U.S.C. § 11 1915(e)(2)(B)(i). 12 IT IS SO ORDERED. 13 14 DATED: July 11, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –5– 17cv0353

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