Marvik v. Geico Insurance Company et al

Filing 3

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. Court dismisses Plaintiff's Complaint as frivolous under 28 USC 1915(e)(2)(B)(i). Signed by Judge Cynthia Bashant on 8/21/2017. (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 STEVEN T. MARVIK, Plaintiff, 14 15 16 17 18 Case No. 17-cv-01567-BAS-BGS ORDER: (1) GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (ECF No. 2); AND v. GEICO INSURANCE COMPANY, et al., Defendants. (2) DISMISSING ACTION AS FRIVOLOUS UNDER 28 U.S.C. § 1915(e)(2) 19 20 21 Plaintiff Steven T. Marvik is proceeding pro se—without an attorney. He filed 22 a complaint on August 4, 2017, against Defendants Geico Insurance Company, 23 Geico’s managers, Geico’s employees, and an entity that the Court assumes is 24 intended to be Geico’s parent company—Berkshire Hathaway, Inc. Plaintiff seeks 25 $150 billion in damages for Geico and others allegedly, among other things, 26 damaging his car, impersonating him, conspiring against him, and making terrorist 27 threats. He has also filed a motion seeking leave to proceed in forma pauperis 28 (“IFP”)—without prepaying court fees or costs. –1– 17cv1567 For the following reasons, the Court GRANTS Plaintiff’s motion to proceed 1 2 IFP and DISMISSES WITH PREJUDICE his Complaint as frivolous. 3 4 I. MOTION FOR LEAVE TO PROCEED IFP 5 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay 6 the required fees or security to commence a legal action may petition the court to 7 proceed without making such payment. The determination of indigency falls within 8 the district court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 9 Cir. 1991) (holding that “Section 1915 typically requires the reviewing court to 10 exercise its sound discretion in determining whether the affiant has satisfied the 11 statute’s requirement of indigency”), rev’d on other grounds, 506 U.S. 194 (1993). 12 It is well-settled that a party need not be completely destitute to proceed IFP. Adkins 13 v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the 14 requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which 15 states that one cannot because of his poverty pay or give security for costs . . . and 16 still be able to provide himself and dependents with the necessities of life.” Id. at 339. 17 At the same time, however, “the same even-handed care must be employed to assure 18 that federal funds are not squandered to underwrite, at public expense . . . the 19 remonstrances of a suitor who is financially able, in whole or in material part, to pull 20 his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 21 District courts, therefore, tend to reject IFP applications where the applicant 22 can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer 23 v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that the district court 24 did not abuse its discretion in requiring a partial fee payment from a prisoner who 25 had a $14.61 monthly salary and who received $110 per month from family), vacated 26 in part on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). 27 Moreover, “in forma pauperis status may be acquired and lost during the course of 28 litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL –2– 17cv1567 1 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see 2 also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that 3 a plaintiff who was initially permitted to proceed in forma pauperis should be 4 required to pay his $120 filing fee out of a $900 settlement). Finally, the facts as to 5 the affiant’s poverty must be stated “with some particularity, definiteness, and 6 certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 7 Having read and considered Plaintiff’s application, the Court finds that 8 Plaintiff meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is 9 unemployed and receives $934.00 per month in disability. (IFP Mot. ¶¶ 1–2, ECF 10 No. 2.) He states the Screen Actors Guild and Hollywood owe him $240 billion, but 11 the Court will disregard that amount as not reasonably collectible. (Id. ¶ 6.) Further, 12 Plaintiff does not have any assets aside from two 20-year-old cars. (Id. ¶ 5.) His 13 expenses approximate or exceed his minimal income. (Id. ¶ 8.) Under these 14 circumstances, the Court finds that requiring Plaintiff to pay the court filing fees 15 would impair his ability to obtain the necessities of life. See Adkins, 335 U.S. at 339. 16 In light of the foregoing, the Court GRANTS Plaintiff’s application for leave 17 to proceed IFP (ECF No. 2). 18 19 II. SCREENING UNDER 28 U.S.C. § 1915(e) 20 Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action where 21 the plaintiff is proceeding IFP if the court determines that the action “is frivolous or 22 malicious.” An IFP complaint “is frivolous if it has ‘no arguable basis in fact or law.’” 23 O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quoting Franklin v. Murphy, 24 745 F.2d 1221, 1228 (9th Cir. 1984)). This standard grants the court “the unusual 25 power to pierce the veil of the complaint’s factual allegations and dismiss those 26 claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 27 319, 327 (1989). Consequently, “a court is not bound, as it usually is when making a 28 –3– 17cv1567 1 determination based solely on the pleadings, to accept without question the truth of 2 the plaintiff’s allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). 3 Clearly baseless factual allegations include those “that are ‘fanciful,’ 4 ‘fantastic,’ and ‘delusional.’” Denton, 504 U.S. at 32–33 (quoting Neitzke v. 5 Williams, 490 U.S. 319, 325, 327, 328 (1989)). Accordingly, “a finding of factual 6 frivolousness is appropriate when the facts alleged rise to the level of the irrational 7 or the wholly incredible, whether or not there are judicially noticeable facts available 8 to contradict them.” Id. at 33. These outlandish claims are those “with which federal 9 district judges are all too familiar.” Neitzke, 490 U.S. at 328. Thus, district courts 10 have dismissed as frivolous an assortment of complaints containing clearly baseless 11 factual allegations. See, e.g., Frost v. Vasan, No. 16-cv-05883 NC, 2017 WL 12 2081094, at *1 (N.D. Cal. May 15, 2017) (secret conspiracy involving a U.S. Senator, 13 a university, and the CIA); Suess v. Obama, No. CV 17-01184-JAK (DTB), 2017 14 WL 1371289, at *2 (C.D. Cal. Mar. 10, 2017) (conspiracy involving former President 15 Barack Obama, the CIA, and the FBI); Demos v. United States, 2010 WL 4007527, 16 at *2 (D. Ore. Oct. 8, 2010) (kidnapping involving law enforcement officers 17 disguised as pirates). 18 Here, Plaintiff seeks $150 billion in damages for Geico and others allegedly, 19 among other things, damaging his car, making terrorist threats, and conspiring 20 against him. Specifically, Plaintiff alleges he “has been illegally forced to sleep in 21 his vehicle and has had his legal monies illegally seized by and from Wells Fargo 22 Bank, [the Screen Actors Guild], criminal blacks/so-called African Americans, cops, 23 and females et. al.” (ECF No. 1 at 6:4–7.) These persons have allegedly impersonated 24 Plaintiff, stalked him, and sabotaged his 1997 silver Mercedes, but there has been 25 “no legal resolution or legal arrests of these heinous criminals.” (Id. at 6:7–13.) 26 Plaintiff also alleges his Complaint has been “illegally altered” or “tampered” with 27 by criminals electronically. (Id. at 6:21–33.) In addition, Plaintiff appends various 28 letters to his Complaint, including one to then-President Barack Obama about –4– 17cv1567 1 “terrorists operating Star Wars technology (invisible/cloaking device)” in various 2 locations throughout California and Nevada. (ECF No. 1-1.) 3 Having reviewed the allegations in Plaintiff’s Complaint and its attached 4 exhibits, the Court concludes they are fantastical and clearly baseless. See Neitzke, 5 490 U.S. at 325; see also 28 U.S.C. § 1915(e)(2)(B)(i); DeRock v. Sprint-Nextel, 603 6 F. App’x 556, 558 (9th Cir. 2015) (affirming dismissal of nine actions as either 7 frivolous or failing to state a claim because the plaintiff alleged “unsupported legal 8 conclusions and fanciful factual allegations”). In addition, because the Complaint is 9 frivolous, the Court does not grant Plaintiff leave to amend. See Lopez v. Smith, 203 10 F.3d 1122, 1127 n.8 (9th Cir. 2000) (“When a case may be classified as frivolous or 11 malicious, there is, by definition, no merit to the underlying action and so no reason 12 to grant leave to amend.”). 13 14 III. CONCLUSION 15 For the foregoing reasons, the Court GRANTS Plaintiff’s motion to proceed 16 in forma pauperis (ECF No. 2). Further, the Court DISMISSES WITH 17 PREJUDICE Plaintiff’s Complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). 18 IT IS SO ORDERED. 19 20 DATED: August 21, 2017 21 22 23 24 25 26 27 28 –5– 17cv1567

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