Harper v. US et al
Filing
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ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. Court dismisses with prejudice Plaintiff's Complaint as frivolous under 28 USC 1915(e)(2)(B)(i). Signed by Judge Cynthia Bashant on 10/3/2017. (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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MONTOREY DANYELL HARPER,
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Plaintiff,
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Case No. 17-cv-01974-BAS-MDD
Case No. 17-cv-01975-BAS-WVG
Case No. 17-cv-01980-BAS-BGS
Case No. 17-cv-01987-BAS-NLS
ORDER:
v.
(1) GRANTING MOTIONS FOR
LEAVE TO PROCEED IN
FORMA PAUPERIS (ECF No. 2)
UNITED STATES, et al.,
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Defendants.
AND
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(2) DISMISSING ACTIONS AS
FRIVULOUS UNDER 28 U.S.C. §
1915(e)(2)
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Pending before the Court are four actions filed by Plaintiff Montorey Danyell
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Harper, proceeding pro se: Case No. 17-cv-01974-BAS-MDD; Case No. 17-cv-
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01975-BAS-WVG; Case No. 17-cv-01980-BAS-BGS; and Case No. 17-cv-01987-
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BAS-NLS. Plaintiff also filed identical motions seeking leave to proceed in forma
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pauperis (“IFP”) in each action. (ECF Nos. 2.) For the reasons outlined below, the
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Court GRANTS each of Plaintiff’s IFP motions, and DISMISSES WITH
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PREJUDICE all four complaints as frivolous.
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I.
MOTIONS 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), rev’d on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915
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typically requires the reviewing court to exercise its sound discretion in determining
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whether the affiant has satisfied the statute’s requirement of indigency”). It is well-
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settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I.
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DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the requirements
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of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one
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cannot because of his poverty pay or give security for costs . . . and still be able to
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provide himself and dependents with the necessities of life.” Id. at 339. At the same
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time, however, “the same even-handed care must be employed to assure that federal
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funds are not squandered to underwrite, at public expense . . . the remonstrances of a
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suitor who is financially able, in whole or in material part, to pull his own oar.”
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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), vacated in part on other
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grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district
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court did not abuse its discretion in requiring a partial fee payment from a prisoner
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who had a $14.61 monthly salary and who received $110 per month from family).
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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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While Plaintiff may not meet the requirements under 28 U.S.C. § 1915 for IFP
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status for one action, having read and considered Plaintiff’s four applications
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together, the Court finds that Plaintiff does meet the requirements. He has a monthly
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income of $4,230—$2,915 from disability payments and $1,315 from other sources.
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(ECF No. 2 at 2.) Plaintiff has $1,495 on a pre-paid card, but no other assets. (Id. at
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2.) Plaintiff states he has monthly expenses of $3,965 (though only itemizes $3,880
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of expenses). His expenses include housing ($2,670), food ($800), clothing ($80),
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laundry and dry cleaning ($80), transportation ($100), and “recreation, entertainment,
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newspapers, magazines, etc.” ($100). (Id. at 4.) He does not list any expenses for
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medical expenses, though he states he is disabled. (Id. at 4-5.) Weighing the income
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against expenses, Plaintiff has a monthly net gain of approximately $265. Under
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these circumstances and considering that Plaintiff would have to pay filing fees in
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four actions, the Court finds that requiring Plaintiff to pay the court filing fees would
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impair his ability to obtain the necessities of life. See Adkins, 335 U.S. at 339.
In light of the foregoing, the Court GRANTS Plaintiff’s applications to
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proceed in forma pauperis. (ECF Nos. 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, though it is difficult to decipher, Plaintiff alleges the following for each
action:
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Case No. 17-cv-01974-BAS-MDD: Plaintiff files this action against the
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United States, Washington, DC, the United Nations, and New York City. Plaintiff
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alleges that the President-elect of France and “his audience” “singled out” Plaintiff.
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(Compl. at 1.) He further alleges that, because the French President-elect allegedly
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gave a part of his speech off script, the election was “perverted as young blacks where
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shown to darkened and looked pale,” which Plaintiff interpreted as a showing of an
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“assault” of the French people. (Id.) Therefore, Plaintiff states that he includes
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“France as property” because neither Defendants nor the President-elect stated that
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“something is wrong with the world.” (Id. at 2.) Plaintiff “demands an unlimited
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enormous enormous amount.” (Id.)
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Case No. 17-cv-01975-BAS-WVG: Plaintiff files this action against the
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United States, the United Nations, NATO, and the City of San Diego. He alleges that
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an assault occurred that “has more to do with ego than anything else and it is brazened
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since it is a lie,” and that Defendants are being “demeaning and scary.” (Compl. at
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1.) Plaintiff further alleges that he lacks information to describe the “attack” because
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he lacks “common knowledge in circles of Obama and Trump.” (Id.) He does cite to
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an email he sent (to whom is not stated) where he alleges that “Obama [is] assaulting
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now like he is in a classified room setting with generals . . . and that its pressure from
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him to get something started. He will be sued in US courts and the US. So, Obama is
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pressuring others.” (Id. at 2.) Because of these allegations, Plaintiff further alleges
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that he is “just stuck here to go through it” and has suffered mental anguish. (Id.)
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Plaintiff requests “enormous enormous unlimited amount [of] money.” (Id.)
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Case No. 17-cv-01980-BAS-BGS: Plaintiff files this action against the United
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States, Washington, DC, the United Nations, and New York City, though he lists
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additional defendants in his Complaint, including the States of Virginia and North
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Carolina, Ralphs, and the San Diego Police Department. Plaintiff alleges that he can
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“tell when people who should be regular store goers . . . become a tool of the hate”
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of Defendants, who are allegedly angry about Plaintiff’s lawsuits and “particular
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stereotypical social norms of the plaintiff or former norms like veganism and
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running.” (Compl. at 1-2.) Plaintiff requests “unlimited amount of money and that it
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be enormous enormous.” (Compl. at 2.)
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Case No. 17-cv-01987-BAS-NLS: Plaintiff files this action against the United
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States, Washington, DC, the United Nations, New York City, NATO, the City of San
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Diego, US Congress, and US Senate. He states that “spiritual assaults” have
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contaminated food, water, health, and noise, causing him “very very bad[]” harm.
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(Compl. at 2.) He further alleges that “the assaults include well known people” and
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that “it is a weapon as described to the FBI.” (Id.) He further cites to and quotes an
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email he sent to the “government” on June 17, 2017 on the same topic. (Id.) (stating,
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among other things, that various government officials are “not going to get away with
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it,” referring to the spiritual assaults). Lastly, Plaintiff alleges that hotels where
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Plaintiff stays are “being moved or [are] moving” and “mak[ing] these attacks already
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bad worse by projecting themselves and the plaintiff can see them and they’re yelling,
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spitting, fighting and hurting the plaintiff.” (Id.)
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Having reviewed the allegations in Plaintiff’s four complaints, the Court
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concludes each complaint is fantastical and clearly baseless. See Neitzke, 490 U.S. at
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325; see also 28 U.S.C. § 1915(e)(2)(B)(i); DeRock v. Sprint-Nextel, 603 F. App’x
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556, 558 (9th Cir. 2015) (affirming dismissal of nine actions as either frivolous or
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failing to state a claim because the plaintiff alleged “unsupported legal conclusions
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and fanciful factual allegations”). In addition, because each complaint is frivolous,
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the Court does not grant Plaintiff leave to amend. See Lopez v. Smith, 203 F.3d 1122,
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1127 n.8 (9th Cir. 2000) (“When a case may be classified as frivolous or malicious,
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there is, by definition, no merit to the underlying action and so no reason to grant
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leave to amend.”).
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III.
CONCLUSION
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For the foregoing reasons, the Court GRANTS Plaintiff’s motions to proceed
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in forma pauperis. (ECF Nos. 2.) Further, the Court DISMISSES WITH
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PREJUDICE Plaintiff’s four complaints as frivolous under 28 U.S.C. §
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1915(e)(2)(B)(i).
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IT IS SO ORDERED.
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DATED: October 3, 2017
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