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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Harper, et al., Case No. 17-cv-01979-JAH-BGS Plaintiffs, 12 13 v. 14 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. 15 16 17 On September 27, 2017, Montorey Danyell Harper, a non-prisoner appearing pro 18 se, and Montorey, LLC (collectively, “Plaintiffs”) filed a complaint against numerous 19 Defendants, including, among others, the United States, the United Nations, New York, 20 New York, NATO, San Diego, and the Secret Service. Plaintiffs’ complaint alleges claims 21 of assault, harassment, and malpractice. Doc. No. 1. Plaintiffs concurrently filed a motion 22 to proceed in forma pauperis. 23 I. 24 All parties instituting any civil action, suit, or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee. See 26 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire 27 fee only if plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 28 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Legal Standard 1 17-cv-01979-JAH-BGS 1 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 2 any person seeking to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject 3 to a mandatory and sua sponte review and dismissal by the court to the extent it is 4 “frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking 5 monetary relief from a defendant immune to such relief.” 28 U.S.C. § 6 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)( “[T]he provisions of 28 U.S.C. 1915 7 (e) )(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th 8 Cir. 2000) (en banc). 28 U.S.C. § 1915(e)(2) mandates that the Court reviewing a complaint 9 filed pursuant to the in forma pauperis provisions of Section 1915 make and rule on its 10 own motion to dismiss before directing that the complaint be served by the U.S. Marshal 11 pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d at 1127. 1915(e)(2)(B); 12 A complaint will be considered frivolous, and therefore, subject to dismissal under 13 Section 1915(e)(2)(B), “where it lacks an arguable basis either in law or in fact.” Neitzke 14 v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32-33 15 (1992). The Supreme Court, however, has held that a federal court cannot properly sua 16 sponte dismiss an action commenced by an in forma pauperis applicant if the facts alleged 17 in the complaint are merely “unlikely.” Denton, 504 U.S. at 33. However, a complaint 18 may be properly dismissed sua sponte if the allegations are found to be “fanciful,” 19 “fantastic,” or “delusional,” or if they “rise to the level of the irrational or the wholly 20 incredible.” Id. (citing Neitzke, 490 U.S. at 325, 328). Moreover, if a case is classified 21 as frivolous, there is no reason to grant leave to amend because a frivolous case, by 22 definition, has no merit to the underlying action. Lopez, 203 F.3d at 1127 n.8. 23 II. 24 Plaintiffs’ allegations of assault, harassment, and malpractice by various 25 governmental officials and entities clearly “rise to the level of the irrational or the wholly 26 incredible.” See Denton, 504 U.S. at 33. Although in some cases it may be difficult to judge 27 whether a plaintiff’s factual allegations are truly “delusional” or merely “unlikely,” this is 28 not such a case. Although it is difficult for the Court to decipher, it appears that Plaintiff Analysis 2 17-cv-01979-JAH-BGS 1 alleges the Secret Service and government starting emailing and harassing Plaintiff. 2 Plaintiff states that his complaint “focused on people unknown to the [P]laintiff doing 3 things like interfering with emails and his surroundings…and warned the government that 4 years of complaining already meant that defendants like the Mormons who can influence 5 people where involve and politicians, such as Obama and business.” Plaintiff’s complaint 6 is nearly indecipherable. Doc. No. 1. 7 Therefore, this Court finds Plaintiffs’ complaint is “frivolous” as that term is defined 8 by the United States Supreme Court and, accordingly, dismisses the complaint without 9 leave to amend. Lopez, 203 F.3d at 1127, n. 8. Accordingly, Plaintiffs’ request to proceed 10 in forma pauperis is moot. 11 III. 12 Accordingly, IT IS HEREBY ORDERED THAT: 13 1. 14 15 Conclusion and Order The instant complaint is sua sponte DISMISSED without leave to amend as frivolous; and 2. Plaintiffs’ request to proceed in forma pauperis is DENIED AS MOOT. 16 17 18 19 20 DATED: October 3, 2017 _________________________________ JOHN A. HOUSTON United States District Judge 21 22 23 24 25 26 27 28 3 17-cv-01979-JAH-BGS

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