Harper et al v. US et al

Filing 3

ORDER dismissing complaint without leave to amend as frivolous and denying as moot 2 Plaintiff's Motion to Proceed in forma pauperis. Signed by Judge John A. Houston on 10/03/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Harper, et al.,

Case No. 17-cv-01979-JAH-BGS
Plaintiffs,

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v.

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ORDER DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND
AND DENYING AS MOOT
PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS

US, et al. ,
Defendants.

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On September 27, 2017, Montorey Danyell Harper, a non-prisoner appearing pro

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se, and Montorey, LLC (collectively, “Plaintiffs”) filed a complaint against numerous

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Defendants, including, among others, the United States, the United Nations, New York,

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New York, NATO, San Diego, and the Secret Service. Plaintiffs’ complaint alleges claims

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of assault, harassment, and malpractice. Doc. No. 1. Plaintiffs concurrently filed a motion

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to proceed in forma pauperis.

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I.

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All parties instituting any civil action, suit, or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee. See

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28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire

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fee only if plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

Legal Standard

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17-cv-01979-JAH-BGS

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Notwithstanding payment of any filing fee or portion thereof, a complaint filed by

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any person seeking to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject

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to a mandatory and sua sponte review and dismissal by the court to the extent it is

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“frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking

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monetary relief from a defendant immune to such relief.” 28 U.S.C. §

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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)( “[T]he provisions of 28 U.S.C. 1915

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(e) )(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th

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Cir. 2000) (en banc). 28 U.S.C. § 1915(e)(2) mandates that the Court reviewing a complaint

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filed pursuant to the in forma pauperis provisions of Section 1915 make and rule on its

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own motion to dismiss before directing that the complaint be served by the U.S. Marshal

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pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d at 1127.

1915(e)(2)(B);

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A complaint will be considered frivolous, and therefore, subject to dismissal under

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Section 1915(e)(2)(B), “where it lacks an arguable basis either in law or in fact.” Neitzke

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v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32-33

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(1992). The Supreme Court, however, has held that a federal court cannot properly sua

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sponte dismiss an action commenced by an in forma pauperis applicant if the facts alleged

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in the complaint are merely “unlikely.” Denton, 504 U.S. at 33. However, a complaint

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may be properly dismissed sua sponte if the allegations are found to be “fanciful,”

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“fantastic,” or “delusional,” or if they “rise to the level of the irrational or the wholly

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incredible.” Id. (citing Neitzke, 490 U.S. at 325, 328). Moreover, if a case is classified

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as frivolous, there is no reason to grant leave to amend because a frivolous case, by

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definition, has no merit to the underlying action. Lopez, 203 F.3d at 1127 n.8.

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II.

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Plaintiffs’ allegations of assault, harassment, and malpractice by various

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governmental officials and entities clearly “rise to the level of the irrational or the wholly

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incredible.” See Denton, 504 U.S. at 33. Although in some cases it may be difficult to judge

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whether a plaintiff’s factual allegations are truly “delusional” or merely “unlikely,” this is

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not such a case. Although it is difficult for the Court to decipher, it appears that Plaintiff

Analysis

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17-cv-01979-JAH-BGS

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alleges the Secret Service and government starting emailing and harassing Plaintiff.

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Plaintiff states that his complaint “focused on people unknown to the [P]laintiff doing

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things like interfering with emails and his surroundings…and warned the government that

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years of complaining already meant that defendants like the Mormons who can influence

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people where involve and politicians, such as Obama and business.” Plaintiff’s complaint

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is nearly indecipherable. Doc. No. 1.

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Therefore, this Court finds Plaintiffs’ complaint is “frivolous” as that term is defined

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by the United States Supreme Court and, accordingly, dismisses the complaint without

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leave to amend. Lopez, 203 F.3d at 1127, n. 8. Accordingly, Plaintiffs’ request to proceed

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in forma pauperis is moot.

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III.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1.

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Conclusion and Order

The instant complaint is sua sponte DISMISSED without leave to amend as
frivolous; and

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Plaintiffs’ request to proceed in forma pauperis is DENIED AS MOOT.

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DATED:

October 3, 2017
_________________________________
JOHN A. HOUSTON
United States District Judge

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17-cv-01979-JAH-BGS