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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEVEN T. MARVIK,
Plaintiff,

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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)

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Plaintiff Steven T. Marvik is proceeding pro se—without an attorney. He filed

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a complaint on August 4, 2017, against Defendants Geico Insurance Company,

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Geico’s managers, Geico’s employees, and an entity that the Court assumes is

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intended to be Geico’s parent company—Berkshire Hathaway, Inc. Plaintiff seeks

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$150 billion in damages for Geico and others allegedly, among other things,

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damaging his car, impersonating him, conspiring against him, and making terrorist

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threats. He has also filed a motion seeking leave to proceed in forma pauperis

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(“IFP”)—without prepaying court fees or costs.
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For the following reasons, the Court GRANTS Plaintiff’s motion to proceed

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IFP and DISMISSES WITH PREJUDICE his Complaint as frivolous.

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I.

MOTION FOR LEAVE TO PROCEED IFP

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Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay

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the required fees or security to commence a legal action may petition the court to

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proceed without making such payment. The determination of indigency falls within

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the district court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th

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Cir. 1991) (holding that “Section 1915 typically requires the reviewing court to

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exercise its sound discretion in determining whether the affiant has satisfied the

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statute’s requirement of indigency”), rev’d on other grounds, 506 U.S. 194 (1993).

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It is well-settled that a party need not be completely destitute to proceed IFP. Adkins

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v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the

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requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which

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states that one cannot because of his poverty pay or give security for costs . . . and

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still be able to provide himself and dependents with the necessities of life.” Id. at 339.

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At the same time, however, “the same even-handed care must be employed to assure

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that federal funds are not squandered to underwrite, at public expense . . . the

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remonstrances of a suitor who is financially able, in whole or in material part, to pull

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his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

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District courts, therefore, tend to reject IFP applications where the applicant

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can pay the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer

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v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that the district court

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did not abuse its discretion in requiring a partial fee payment from a prisoner who

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had a $14.61 monthly salary and who received $110 per month from family), vacated

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in part on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995).

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Moreover, “in forma pauperis status may be acquired and lost during the course of

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litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL
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311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see

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also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that

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a plaintiff who was initially permitted to proceed in forma pauperis should be

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required to pay his $120 filing fee out of a $900 settlement). Finally, the facts as to

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the affiant’s poverty must be stated “with some particularity, definiteness, and

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certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).

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Having read and considered Plaintiff’s application, the Court finds that

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Plaintiff meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is

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unemployed and receives $934.00 per month in disability. (IFP Mot. ¶¶ 1–2, ECF

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No. 2.) He states the Screen Actors Guild and Hollywood owe him $240 billion, but

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the Court will disregard that amount as not reasonably collectible. (Id. ¶ 6.) Further,

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Plaintiff does not have any assets aside from two 20-year-old cars. (Id. ¶ 5.) His

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expenses approximate or exceed his minimal income. (Id. ¶ 8.) Under these

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circumstances, the Court finds that requiring Plaintiff to pay the court filing fees

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would impair his ability to obtain the necessities of life. See Adkins, 335 U.S. at 339.

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In light of the foregoing, the Court GRANTS Plaintiff’s application for leave

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to proceed IFP (ECF No. 2).

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II.

SCREENING UNDER 28 U.S.C. § 1915(e)

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Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action where

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the plaintiff is proceeding IFP if the court determines that the action “is frivolous or

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malicious.” An IFP complaint “is frivolous if it has ‘no arguable basis in fact or law.’”

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O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quoting Franklin v. Murphy,

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745 F.2d 1221, 1228 (9th Cir. 1984)). This standard grants the court “the unusual

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power to pierce the veil of the complaint’s factual allegations and dismiss those

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claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S.

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319, 327 (1989). Consequently, “a court is not bound, as it usually is when making a

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determination based solely on the pleadings, to accept without question the truth of

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the plaintiff’s allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992).

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Clearly baseless factual allegations include those “that are ‘fanciful,’

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‘fantastic,’ and ‘delusional.’” Denton, 504 U.S. at 32–33 (quoting Neitzke v.

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Williams, 490 U.S. 319, 325, 327, 328 (1989)). Accordingly, “a finding of factual

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frivolousness is appropriate when the facts alleged rise to the level of the irrational

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or the wholly incredible, whether or not there are judicially noticeable facts available

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to contradict them.” Id. at 33. These outlandish claims are those “with which federal

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district judges are all too familiar.” Neitzke, 490 U.S. at 328. Thus, district courts

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have dismissed as frivolous an assortment of complaints containing clearly baseless

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factual allegations. See, e.g., Frost v. Vasan, No. 16-cv-05883 NC, 2017 WL

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2081094, at *1 (N.D. Cal. May 15, 2017) (secret conspiracy involving a U.S. Senator,

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a university, and the CIA); Suess v. Obama, No. CV 17-01184-JAK (DTB), 2017

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WL 1371289, at *2 (C.D. Cal. Mar. 10, 2017) (conspiracy involving former President

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Barack Obama, the CIA, and the FBI); Demos v. United States, 2010 WL 4007527,

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at *2 (D. Ore. Oct. 8, 2010) (kidnapping involving law enforcement officers

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disguised as pirates).

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Here, Plaintiff seeks $150 billion in damages for Geico and others allegedly,

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among other things, damaging his car, making terrorist threats, and conspiring

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against him. Specifically, Plaintiff alleges he “has been illegally forced to sleep in

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his vehicle and has had his legal monies illegally seized by and from Wells Fargo

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Bank, [the Screen Actors Guild], criminal blacks/so-called African Americans, cops,

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and females et. al.” (ECF No. 1 at 6:4–7.) These persons have allegedly impersonated

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Plaintiff, stalked him, and sabotaged his 1997 silver Mercedes, but there has been

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“no legal resolution or legal arrests of these heinous criminals.” (Id. at 6:7–13.)

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Plaintiff also alleges his Complaint has been “illegally altered” or “tampered” with

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by criminals electronically. (Id. at 6:21–33.) In addition, Plaintiff appends various

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letters to his Complaint, including one to then-President Barack Obama about
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“terrorists operating Star Wars technology (invisible/cloaking device)” in various

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locations throughout California and Nevada. (ECF No. 1-1.)

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Having reviewed the allegations in Plaintiff’s Complaint and its attached

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exhibits, the Court concludes they are fantastical and clearly baseless. See Neitzke,

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490 U.S. at 325; see also 28 U.S.C. § 1915(e)(2)(B)(i); DeRock v. Sprint-Nextel, 603

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F. App’x 556, 558 (9th Cir. 2015) (affirming dismissal of nine actions as either

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frivolous or failing to state a claim because the plaintiff alleged “unsupported legal

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conclusions and fanciful factual allegations”). In addition, because the Complaint is

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frivolous, the Court does not grant Plaintiff leave to amend. See Lopez v. Smith, 203

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F.3d 1122, 1127 n.8 (9th Cir. 2000) (“When a case may be classified as frivolous or

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malicious, there is, by definition, no merit to the underlying action and so no reason

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to grant leave to amend.”).

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III.

CONCLUSION

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For the foregoing reasons, the Court GRANTS Plaintiff’s motion to proceed

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in forma pauperis (ECF No. 2). Further, the Court DISMISSES WITH

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PREJUDICE Plaintiff’s Complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

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IT IS SO ORDERED.

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DATED: August 21, 2017

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