Mimms v. United State of America

Filing 3

ORDER denying 2 Motion to Proceed in forma pauperis; and Dismissing Civil Action as Frivolous Pursuant to 28 U.S.C. § 1915A(b)(1). Signed by Judge Larry Alan Burns on 2/20/2018. (All non-registered users served via U.S. Mail Service)(jdt)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

JARED BENJAMIN MIMMS,
Booking #17141130,

ORDER:

Plaintiff,

13
14

Case No.: 3:17-cv-02539-LAB-BGS

vs.

1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]

15
16
17

UNITED STATES OF AMERICA,
AND

Defendant.

2) DISMISSING CIVIL ACTION
AS FRIVOLOUS PURSUANT
TO 28 U.S.C. § 1915A(b)(1)

18
19
20
21

JARED BENJAMIN MIMMS (“Plaintiff”), currently detained at San Diego

22

Central Jail (“SDCJ”) and proceeding pro se, has filed a Complaint naming the United

23

States of America as the sole Defendant, and seeking his “transfer to Fort Knox” based

24

on what appear to be claims that his ongoing state criminal prosecution is the result of a

25

San Diego Sheriff’s Department scheme to entrap him. See ECF No. 1 at 1-3.

26

Plaintiff has not prepaid the $400 filing fee required to commence civil action

27

pursuant to 28 U.S.C. § 1914(a), instead has he filed a Motion to Proceed In Forma

28

Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2.
1
3:17-cv-02539-LAB-BGS

1

I.

2

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

3

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

4

$400. See 28 U.S.C. § 1914(a). 1 An action may proceed despite a plaintiff’s failure to

5

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

6

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

7

plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he

8

nevertheless remains obligated to pay the entire fee in “increments,” see Williams v.

9

Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is

10

ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d

11

844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of

12

filing is “incarcerated or detained in any facility who is accused of, convicted of,

13

sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

14

conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C.

15

§ 1915(h); Taylor, 281 F.3d at 847.

16

In order to comply with the PLRA, prisoners seeking leave to proceed IFP must

17

also submit a “certified copy of the[ir] trust fund account statement (or institutional

18

equivalent) ... for the 6-month period immediately preceding the filing of the complaint.”

19

28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court assesses an

20

initial payment of 20% of (a) the average monthly deposits in the account for the past six

21

months, or (b) the average monthly balance in the account for the past six months,

22

whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4);

23

see Taylor, 281 F.3d at 850. Thereafter, the institution having custody of the prisoner

24
25
26
27
28

1

In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
2
3:17-cv-02539-LAB-BGS

1

collects subsequent payments, assessed at 20% of the preceding month’s income, in any

2

month in which the prisoner’s account exceeds $10, and forwards them to the Court until

3

the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

4

While Plaintiff has filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a),

5

he has not attached a certified copy of his SDCJ trust account statements for the 6-month

6

period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2);

7

S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly requires that prisoners “seeking to bring

8

a civil action ... without prepayment of fees ... shall submit a certified copy of the trust

9

fund account statement (or institutional equivalent) ... for the 6-month period

10

immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) (emphasis

11

added).

12

Without Plaintiff’s trust account statements, Plaintiff’s IFP Motion is incomplete

13

and must be DENIED because the Court is unable to assess the appropriate amount of the

14

initial filing fee statutorily required to initiate the prosecution of this action. See 28

15

U.S.C. § 1915(b)(1).

16

II.

17

Screening of Complaint pursuant to 28 U.S.C. § 1915A
In addition, while the Court would ordinarily grant Plaintiff leave to correct his IFP

18

Motion’s deficiencies, it instead finds it appropriate to screen his Complaint pursuant to

19

28 U.S.C. § 1915A because at the time of filing Plaintiff was, and remains, “incarcerated

20

or detained in any facility [because he] is accused of, convicted of, sentenced for, or

21

adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

22

probation, pretrial release, or diversionary program.” Olivas v. Nevada ex rel. Dept. of

23

Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (citing 28 U.S.C. § 1915(h), 1915A(c); 42

24

U.S.C. § 1997e(h)).

25

Section 1915A “mandates early review—‘before docketing [] or [] as soon as

26

practicable after docketing’—for all complaints ‘in which a prisoner seeks redress from a

27

governmental entity or officer or employee of a governmental entity.’” Chavez v.

28

Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of
3
3:17-cv-02539-LAB-BGS

1

§ 1915A apply to all prisoners, no matter their fee status, who bring suit against a

2

governmental entity, officer, or employee. See, e.g. Resnick v. Hayes, 213 F.3d 443, 446-

3

47 (9th Cir. 2000). “On review, the court shall … dismiss the complaint, or any portion of

4

the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief

5

may be granted; or (2) seeks monetary relief from a defendant who is immune from such

6

relief.” Olivas, 856 F.3d at 1283 (quoting 28 U.S.C. § 1915A(b)). “The purpose of

7

§ 1915A is to ‘ensure that the targets of frivolous or malicious suits need not bear the

8

expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014)

9

(quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

10

A pleading is “factual[ly] frivolous[]” if “the facts alleged rise to the level of the

11

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

12

available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 25-26 (1992). Section

13

1915 gives courts “the unusual power to pierce the veil” of a Complaint like Plaintiff’s

14

and to “dismiss those claims whose factual contentions are clearly baseless.” Neitzke v.

15

Williams, 490 U.S. 319, 327 (1989)). Clearly baseless factual allegations include those

16

“that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’” Denton, 504 U.S. at 32-33 (quoting

17

Neitzke, 490 U.S. at 325, 327, 328).

18

Plaintiff invokes no arguable legal basis for his suit, and his factual allegations are

19

plainly frivolous. Id.; see also O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990)

20

(“An in forma pauperis complaint is frivolous if it has no arguable basis in fact or law.”

21

(citation and internal quotation marks omitted)). For example, Plaintiff claims that the

22

“People of the State of California have noticed his pedigree and have designed an

23

entrapment to steal his life based on height, weight, and face alone.” See ECF No. 2. He

24

contends the Sheriff’s Department stole his $275 Allen Edmunds shoes, his $1000

25

Brooks’ Brothers suit, a Nordstrom’s tie, a Hugo Boss shirt, committed a “grand theft” of

26

case his files, and have falsely described him as “emaciated at 130 pounds,” even though

27

he has maintained that weight “since running cross country at Poway High School.” Id. at

28

3. In addition, Plaintiff purports to be the victim of a “hacker” and former business
4
3:17-cv-02539-LAB-BGS

1

partner’s plot to “assassinate” him because he is the only person who can “take him

2

down” for participating in a “swatting” scheme. 2 Id. at 3.

3

While conclusory, disjointed, and incoherent, Plaintiff’s factual allegations appear

4

to be grounded in delusion, are facially irrational, and wholly incredible. Therefore, his

5

Complaint demands sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1). See

6

Denton, 504 U.S. at 25-26; Neitzke, 490 U.S. at 324; see also Suess v. Obama, 2017 WL

7

1371289, at *2 (C.D. Cal. Mar. 10, 2017) (dismissing as frivolous complaint alleging

8

conspiracy among President, CIA, and FBI to torment plaintiff over six year period);

9

Frost v. Vasan, No. 16-CV-05883 NC, 2017 WL 2081094, at *1 (N.D. Cal. May 15,

10

2017) (dismissing as frivolous claims against a United States Senator, a university, two

11

corporate entities, and additional unspecified defendants for having allegedly conspired

12

with a secret elite group of businessmen and the CIA to torment him); Sierra v. Moon,

13

2012 WL 423483, at *2 (E.D. Cal. Feb. 8, 2012) (dismissing as frivolous an alleged

14

conspiracy by defendants with ex-military and CIA to defraud plaintiffs’ interests and

15

murder him); Demos v. United States, 2010 WL 4007527, at *2 (D. Ore. Oct. 8, 2010)

16

(dismissing as frivolous complaint alleging plaintiff was captured by pirates disguised as

17

law enforcement officers); Reid v. Mabus, 2015 WL 9855875, at *1 (D. Ore. Nov. 16,

18

2015) (dismissing complaint alleging a massive conspiracy targeting 300,000 individuals

19

with “electronic harassment”).

20

If a Plaintiff’s claims are frivolous, “there is by definition no merit to the

21

underlying action and so no reason to grant leave to amend.” Lopez v. Smith, 203 F.3d

22

1122, 1127 n.8 (9th Cir. 2000) (en banc).

23
24
25
26
27
28

2

“Swatting is the harassment tactic of deceiving an emergency service (via such means as
hoaxing an emergency services dispatcher) into sending a police and emergency service
response team to another person’s address. This is triggered by false reporting of a serious
law enforcement emergency, such as a bomb threat, murder, hostage situation, or other
alleged incident.” See generally https://en.wikipedia.org/wiki/Swatting (last visited Feb.
13, 2018).
5
3:17-cv-02539-LAB-BGS

1

III.

Conclusion and Order

2

For the reasons discussed, the Court:

3

1)

DENIES Plaintiff’s Motion to Proceed IFP [ECF No. 2];

4

2)

DISMISSES this civil action as frivolous pursuant to 28 U.S.C.

5

§ 1915A(b)(1);

6

3)

7

CERTIFIES that an IFP appeal would not be taken in good faith pursuant

to 28 U.S.C. § 1915(a)(3); and

8

4)

9

to close the file.

10

DIRECTS the Clerk of the Court to enter a final judgment of dismissal and

IT IS SO ORDERED.

11
12
13
14

Dated: February 20, 2018

_______________________________________
HON. LARRY ALAN BURNS
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
3:17-cv-02539-LAB-BGS