Brennan v. United States of America
Filing
9
MEMORANDUM AND ORDER denying Plaintiff's Applications 2 3 for Leave to Proceed in forma pauperis. Plaintiff is granted twenty (20) days in which to submit the $400.00 filing fee; and failure to pay the full filing fee within that time will result in the dismissal of this action without prejudice. Signed by District Judge Richard D. Rogers on 1/29/2015. Mailed to pro se party Nathan Deveron Brennan by regular mail. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NATHAN DEVERON BRENNAN,
Plaintiff,
v.
CASE NO.
14-3133-RDR
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM AND ORDER
This pro se pleading was filed by an inmate of the United States
Penitentiary, Leavenworth, Kansas (USPL) on forms for filing a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 with
a ten-page “Complaint” attached.
In 2007, Mr. Brennan pled guilty
to and was convicted of conspiracy to defraud and bank fraud in the
United States District Court for the Northern District of Georgia.
He directly appealed, and his convictions and sentence were affirmed.
See U.S. v. Brennan, 290 Fed.Appx. 286 (11th Cir. 2008).
In this action, plaintiff asserts that “the United States
Government has employed technology to capture, review and distribute
human thought.”
He claims that through use of this technology during
his confinement, he has been forcibly subjected to illegal searches
and seizures of his “private thoughts” and violations of his right
to privacy.
He further alleges that his “profoundly personal
information” has been distributed to others including inmates.
1
Allegedly, this “program” was employed against him during his prior
confinement in Florida and Oklahoma and continues at the USPL.
Having examined the materials filed, the court finds that the
initial pleading amounts to a civil rights complaint against the
United States rather than a habeas corpus petition, and that this
pleading is deficient in several ways.1
However, the court further
finds that plaintiff is a three-strikes litigant and may not proceed
in this action without paying the full filing fee up front.
The court takes judicial notice of Brennan v. Department of
Justice, Case 1:14-mc-00954 filed by plaintiff in the United States
District Court for the District of Columbia, and in particular the
Memorandum Opinion and Order entered therein on August 26, 2014 (Doc.
1).
In this Order, the judge found that Mr. Brennan had:
accumulated at least three strikes. See Brennan v. Dep’t
of Justice, No. 1:13-cv-23114 (S.D.Fla. Oct. 31,
2013)(dismissal
pursuant
to
28
U.S.C.
§1915(e)(2)(B)(ii)), appeal dismissed, No. 13-15821-A
1
For example, plaintiff’s allegations that prison officials are forcibly
using technology to seize his private thoughts and distributing his personal
information to others are claims challenging the conditions of his confinement
that may only be raised in a civil rights complaint. Plaintiff has not used
court-approved forms for filing this §1331 complaint as required by local court
rule. He admits that he has not exhausted administrative remedies within the
Bureau of Prisons, and his bald assertion that they are unavailable is inadequate
to excuse this legal prerequisite.
His bizarre allegations are vague and
conclusory and certainly do not present a plausible claim. Mr. Brennan has
repeatedly been informed that challenges to the legality of his imprisonment may
only be raised by §2255 motion in the sentencing court. Neither seeking an
injunction against government officials in a civil complaint nor inappropriate
relief under § 2241 is a viable method for testing the legality of a federal
conviction or sentence. Finally, the claim that plaintiff now attempts to raise
in this court has already been and still is barred by principles of res judicata
and issue preclusion because it was previously rejected. Should plaintiff pay
the filing fee in full, he must simultaneously submit an Amended Complaint on
court-approved § 1331 forms that cures all deficiencies.
2
(11th Cir. Apr. 21, 2014); Brennan v. Warden of FCI Miami,
No. 1:10-cv-21458, 2010 WL 5069860 (S.D. Fla. Dec. 6,
2010)(dismissal
pursuant
to
28
U.S.C.
§1915(e)(2)(B)(ii)), appeal dismissed, No. 11-10755-H
(11th Cir. Mar. 14, 2011); Brennan v. United States of
America,
No.
1:10-cv-20376
(S.D.Fla.
Aprl
16,
2010)(dismissal with prejudice pursuant to 28 U.S.C.
§1915(e)(2)(B)); Brennan v. Saviello, No. 1:08-cv-1490
(N.D.Ga. May 16, 2008)(dismissed under 28 U.S.C. § 1915A
for failure to state a claim).
Id. at 2.
The court rejected Mr. Brennan’s “attempt[] to skirt the
‘three strikes’ provision by claiming he is under imminent danger”
because “the government of the United States employs ‘technology to
capture, review and distribute human thought.’”
Id.
The court
quoted Brennan’s allegations that this technology:
is now used by federal and state agencies and officers to
illegally search and collect (seize) intimate and person
information about [him] by force, and distribute [his]
unauthorized private information to other federal
agencies and officers as well as to federal prisoners. .
. .
Id.
The court found that these allegations were “utterly frivolous”
and could “not establish that plaintiff qualifies for the imminent
danger exception.”
Id.
Thus, Mr. Brennan has been already
designated a three-strikes litigant under Section 1915(g) by another
federal district court.
This court has reviewed the dismissal in Case No. 13-23114 and
finds that it qualifies as a strike under this court’s and Tenth
Circuit Court standards.
In this 1983 action, Mr. Brennan claimed
his right to privacy was violated.
3
He alleged that defendants
Department of Justice, Bureau of Prisons, federal institutions, and
various prison officials were, among other things, subjecting him
to “technology” to seize his private thoughts and impersonating
voices of persons he knows.
The court found that plaintiff’s
allegations failed to state a claim “plausible on its face.”
Id.
(Doc. 24) at 4 (S.D.Fla., Oct. 31, 2013).
The court has reviewed the dismissal in Case No. 10-20376 and
finds that it qualifies as a strike.
In this Bivens complaint Mr.
Brennan sued the United States claiming that sanctions imposed
against him, such as restrictions upon his freedom for twenty years
and his ability to be employed to provide for his family, were without
authority and unconstitutional.
He sought an order compelling the
United States to terminate all such sanctions and reserved the right
to pursue damages.
The court found plaintiff’s allegations were
“essentially a challenge to his federal conviction” that “is not a
cognizable claim in a civil rights case” and that were also premature
under Heck v. Humphrey, 512 U.S. 477 (1994).
Id. (Doc. 32) at 2-3
(S.D.Fla. Apr. 16, 2010).
This court has reviewed the dismissal in Case No. 10-21458 and
finds that it qualifies as a strike.
In this Bivens action, Brennan
sued the Warden, FCI Miami, and the United States Attorney General
for damages claiming that he was illegally held in custody due to
violations of his constitutional rights.
4
The court found that the
complaint was not plausible on its face because it did not plead
sufficient facts and was barred by Heck as well as the doctrines of
res judicata and collateral estoppel.
Id.
(Doc. 88) at 3, 5
(S.D.Fla. Dec. 6, 2010).
The court concludes that Mr. Brennan, while incarcerated, has
brought at least 3 or more prior actions that are strikes.
Section
1915(g) of 28 U.S.C. provides:
In no event shall a prisoner bring a civil action or appeal
a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought
an action or appeal in a court that is frivolous,
malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger
of serious physical injury.
Id.
Mr. Brennan is therefore required to “pay up front for the
privilege of filing . . . any additional civil actions” unless he
can show “imminent danger of serious physical injury.”
28 U.S.C.
1915(g); Jennings v. Natrona County Detention Center, 175 F.3d 775,
778 (10th Cir. 1999).
Plaintiff alleges no facts in his motions to
proceed in forma pauperis showing that he qualifies for the “imminent
danger” exception.
threats
and
While plaintiff makes conclusory claims of
“immediate
danger”
in
his
complaint
and
subsequently-filed “sworn statements,” the court has no difficulty
finding that none of the facts alleged by plaintiff in these filings
establish that he is in imminent danger of serious physical injury.
5
Accordingly, Mr. Brennan may proceed in this action only if he pays
the filing fee of $400.00 for filing a civil complaint.
IT
IS
THEREFORE
BY
THE
COURT
ORDERED
that
plaintiff’s
applications for leave to proceed in forma pauperis (Doc. 2 & 3) are
denied; he is granted twenty (20) days in which to submit the $400.00
filing fee; and failure to pay the full filing fee within that time
will result in the dismissal of this action without prejudice.
IT IS SO ORDERED.
DATED:
This 29th day of January, 2015, at Topeka, Kansas.
s/RICHARD D. ROGERS
United States District Judge
6
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