Flores v. United States Attorney General et al

Filing 5

MEMORANDUM OPINION & ORDER, 1) granting 3 MOTION for Leave to Proceed in forma pauperis by Eric Flores; all filing fees are waived including the $50.00 administrative fee 2) pla request for class certification and to act as lead plaintiff is OVERRULED AND DENIED 3) action is DISMISSED WITH PREJUDICE pursuant 28 USC 1915 4) court certifies that any appeal of dismissal of action would not be taken in good faith 5) clerk is directed to transmit a copy of this MO&O to the 6CCA. Signed by Judge Henry R. Wilhoit, Jr on 11/2/15.(SMT)cc: COR, Flores via USMail, 6CCA electronically

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

ERIC FLORES,
Plaintiff,

v.
UNITED STATES ATTORNEY
GENERAL, et al.,

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)
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Civil No. 0:15-CV-086-HRW

MEMORANDUM OPINION
AND ORDER

Defendants.

**** **** **** ****
BACKGROUND

I.

The Present Action
On October 15, 2015, plaintiff Eric Flores ("Flores"), formerly a three-strike

prisoner 1 and currently a resident of El Paso, Texas, filed a 58-page, pro se
Complaint against the United States Attorney General ("USAG") and the Federal
Bureau of Investigation ("FBI"). The Complaint is entitled "Petition to Challenge
the Constitutionality of the First Amendment" and is set forth on a template form
presumably created by Flores, with blank spaces to fill in the geographic location

'See 28 U.S.C. § 1915(g).

(e.g., Ashland, Kentucky) where his legal claims are being filed. Complaint, (R. I,
at p. 5).
The Complaint is unintelligible and is basically a rambling narrative. From
what can be gleaned, Flores first seeks to proceed in forma pauperis alleging that
he is in imminent danger? He also seeks to act prose as the lead representative for
a class of Mexican American citizens of the United States who reside in Texas?
Without detailing each and every allegation, one of Flores's representative claims
is that:
The organized group of executive employees of the federal
government further then used advanced technology with a direct
signal to the satellite in outerspace that has the capability of
caculateing [sic] a genetic code to cause the petitioner severe pain for
long durations exceeding calendar years in which was equivalent in
intensity to a great amount of pain to the petitioners brain that
impaired his thought process or ability to mentally function normally
so as to prevent the petitioner from adequately appealing the
aforementioned circumstances of the civil case to a higher court of
law to prohibit the civil case from being remanded to the court of
original jurisdiction and reinstituted for jury trial that could have
resulted in criminal lawful sanctions against the organized group of
'Presumably, Flores derives this "imminent danger" language from prior cases he
attempted to file in order to exempt application of the three strikes rule of 28
U.S.C. § 1915(g) so as to obtain leave to proceed in forma pauperis.
'The members of the purported class are relatives and friends of Flores and
include: (1) Jorge Salas (deceased); (2) Gloria Salas; (3) Javier Vensor Flores; (4)
Cynthia Lorenza Flores; (5) Javier Flores (deceased); (6) Ashley Rex Flores; (7)
Jessica Lazarin; (8) Jessica A. Munoz; (9) Joann Flores; (I 0) Rudy Alva
(deceased); (11) Cebastain Alva; (12) Evangelina Salas Mendoza (deceased); (13)
Mary Salas; (14) Richard Salas; (14) Marciano Flores; and (15) Celia Flores.
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executive employees of the federal government for not only
engageing [sic] in negligent torturious [sic] conduct that resulted in
the death of petitioners Uncle Jorge Salas, but also influenceing [sic],
directing coerceing [sic], or otherwise bribeing [sic] and solicitateing
[sic] another corrupt official to use the petitioners identity information
to fabercate [sic] the petitioners signature on fabercated [sic] legal
documents which were filed in a cause of action under the petitioners
named [sic] so as to allow corrupt official to benefit from a money
judgement [sic] to include assert a legal interest to overcome a want of
prosecution in the ongoing public corruptions case in El Paso[,]
Texas.
Complaint (R. 1 at 10-11 ). (brackets added). He contends that this governmental
interference violated the First Amendment right to free exercise of religious belief
with respect to the marriage vow against adultery.

!d. The remainder of the

Complaint contains more allegations of this ilk, including sexual assaults of others
through advanced technology.
Accompanying the Complaint, Flores filed a Motion for Leave to Proceed in

forma pauperis (R. 3).
II.

Similar Litigation filed by Flores in Other U.S. District Courts
On April 16, 2015, Flores filed a Complaint that is similar but not identical

to the present Complaint, in the Western District of Texas (El Paso). See Flores v.

United States Attorney General. eta!., Civil Action No. 3:15-00202-FM (W.D.
Tex.) (El Paso) ("the Texas case").

That case had been transferred from the

Eastern District of Oklahoma (Muskogee) based on improper venue. See Flores v.

United States Attomey General, Civil Action No. 6:15-00139-JHP (E.D. Okla.
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(Muskogee)).

On July 20, 2015, United States District Judge Frank Montalvo

issued an Order in the Texas case (Docket No. 8) denying Flores's Application to
Proceed in forma pauperis. That opinion noted the numerous cases filed against the
USAG and others, which had been dismissed as frivolous and in which a monetary
sanction has been imposed along with an Order enjoining Flores. Further, Judge
Montalvo noted that Flores had advanced these same claims in a prior suit; thus his
claims were precluded by res judicata. See Order in the Texas Case (Docket No. 8
at 3) citing Flores v. U.S. Att)' Gen., EP-14-cv-00034-FM (W.D. Tex. Feb. 4,
2012) (Order Denying Plaintiff's Application to Proceed In Forma Pauperis and
Dismissing Plaintiff's Complaint).

Specifically, the Court noted that Flores's

representation of the proposed class "was found to be dubious and certification was
denied." See Order in the Texas Case (Docket No. 8 at 3). Moreover, Flores's
claims were "deemed fanciful, fantastic, delusional, and baseless." Id.

Judge

Montalvo dismissed Flores's Complaint with prejudice, noting that the Court's
sanction of$1 00.00 imposed in that case remained in effect. I d. at 5.
On April17, 2015, Flores filed substantially the same complaint (though not
identical) in the U. S. District Court for the District of Montana (Helena). See
Flores v. United States Attorney General. et al., Civil Action No. 6:15-00032-DLC

(D. Mont. (Helena) ("the Montana case"). Three days later, on April 20, 2015,
Flores filed nearly the identical complaint, challenging the constitutionality of the
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First Amendment to the U.S. Constitution, in the Northem Division of Mississippi
(Greenville Division). See Flores v. United States Attorney General. et al., Civil
Action No. 4:15-00048-DMB (N.D. Miss. (Greenville) ("the Mississippi case").
Less than a month after filing the cases in Texas, Montana, and Mississippi,
in May, 2015, Flores filed the same Complaint in the United States District Court,
Middle District of Alabama (Eastern Division).

See Flores v. United States

Attorney General. et al., Civil Action No.2: I 5-cv-219-MHT (M.D. AI.). On May
11, 2015, United States District Judge Myron H. Thompson ordered the action to
be transferred to the United States District Court for the Western District of Texas.
After transfer, on May 15, 2015, Judge Montalvo issued an Order Denying
Plaintiffs Application to Proceed In Forma Pauperis. !d., at Docket No.2 therein.
That Order also noted Flores's hist01y of filing frivolous cases, discussed
application of res judicata, and dismissed the action with prejudice.
In addition to the cases noted above, a review of the PACER4 records
reflects numerous civil actions filed by Flores in other District Courts across the
country, asserting the same challenges that Flores makes in the present action.
Significantly, on May 20, 2015, United States District Judge Sharon L. Gleason
entered an Order of Dismissal (Docket No. 7) in Flores v. United States Attorney
4

Error! Main Document Only.PACER, the acronym for Public Access to Comi
Electronic Records, is the federal comi system's online database. The PACER
Case Locator is a national index for U.S. district, bankruptcy, and appellate comis.
See http://pcl.uscourts.gov/search.
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General. eta!., No. 2:15-cv-00002-SLG (W.D. Alaska (Nome)). In that Order,

Judge Gleason noted that in one of his filings, Flores had indicated that he had
filed the same civil cause of action in over 25 United States District Courts
throughout the country. Id. at 2-3. She also noted that Flores's request for class
certification had been denied because he is not an attorney. Id. at 5 n.3. Judge
Gleason dismissed Flores's case with prejudice as frivolous.
DISCUSSION
A.

The Motion for Leave to Proceed In Forma Pauperis

Upon review of Flores's financial disclosures, this Court finds that he lacks
sufficient funds to pay the filing fee for this action. Therefore, his Motion for
Leave to Proceed in forma pauperis [R. 3] will be sustained.
B.

Screening of the Complaint

Pursuant to 28 U.S.C. § 1915(e)(2), a district court has authority to review
the merits of a plaintiff's complaint prior to the issuance of summonses whenever a
plaintiff seeks to proceed without prepayment of filing fees.

Section 1915

authorizes a federal court to dismiss an in forma pauperis action if it lacks an
arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989). In forma pauperis complaints may be dismissed sua sponte and without
notice under § 1915 if the claims are based on an indisputably meritless legal
theory or if the factual allegations are clearly baseless. Denton v. Hernandez, 504
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U.S. 25, 32-33 (1992). Further, a complaint may also be dismissed if it is frivolous
or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2).
For purposes of preliminary screenmg, Flores's Complaint is construed
liberally because he is proceeding pro se. See Hughes v. Rowe, 449 U.S. 5, 9
(1980).

C.

This Action is Frivolous. Malicious. Vexatious and Abusive
Even under the most liberal of constructions, given Flores's extensive

litigation history, including the filing of virtually the identical Complaint filed
herein in many other U.S. District Courts across the country, including San Juan,
Puerto Rico, and St. Croix, Virgin Islands/ no other conclusion can be drawn
except that the instant action is yet another frivolous, malicious, vexatious, and
abusive suit. Therefore, it will be dismissed with prejudice. The frivolousness of
Flores's present complaint is so glaringly obvious that it warrants no fmiher
discussion and further expenditure of limited judicial resources. Therefore, this
action will be DISMISSED with prejudice, pursuant to 28 U.S.C.
5

The Cettificate of Service attached to Flores's Complaint filed in the Mississippi
case reflects that he filed copies of his "Petition to Challenge the Constitutionality
of the First Amendment" in twenty-nine United States District Courts throughout
the country and in San Juan, Puerto Rico, and St. Croix, VI. See Eric Flores v.
United States Attorney General, et al., Case No.4: 15-cv-00048-DMB (N.D. Miss.
2015) (R. 1 at 64-65 therein).
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§

1915(e)(2)(B)(i) and (ii). Further, Flores's request to represent a purported class of
Mexican American citizens will be DENIED not only because of the lack of merit,
but because Flores cannot adequately and fairly represent the purported class
because he is not a licensed attorney.
D.

Certification That Any Appeal Would Not Be Taken in Good Faith

In view of all of the above, this Court hereby CERTIFIES pursuant to 28
U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3)(A), that any appeal would not be
taken in good faith.
Under 28 U.S.C. § I 915(a)(3) "[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith." !d.
Similarly, under Fed. R. App. P. 24(a)(3)(A), a pmiy who has been permitted to
proceed in forma pauperis in the district court may proceed on appeal in forma

pauperis without further authorization, unless the district court ce1iifies that the
appeal is not taken in good faith. Id. "The applicant's good faith is established by
the presentation of any issue that is not plainly frivolous." Ellis v. United States,
356 U.S. 674, 674 (1958) (per curiam); see Lee v. Clinton, 209 F.3d 1025, 1026
(7th Cir. 2000); Wooten v. District of Columbia, 129 F.3d 206, 208 (D.C. Cir.
1997). A complaint is "frivolous" if "it lacks an arguable basis either in law or in
fact." Neitzke, 490 U.S. 325. Such is the case here. This Court finds that any
appeal would be one that plainly does not deserve additional judicial attention.
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Should Flores seek permission to proceed in forma pauperis on appeal, he
may file any request directly to the United States Court of Appeals for the Sixth
Circuit ("Sixth Circuit"). See Fed. R. App. P. 24(a)(5) ("A party may file a motion
to proceed on appeal in forma pauperis in the court of appeals within 30 days after
service of the notice prescribed in Rule 24(a)(4). The motion must include a copy
of the affidavit filed in the district court and the district court's statement of reasons
for its action. If no affidavit was filed in the district court, the party must include
the affidavit prescribed by Rule 24(a)(l ).").
CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:
1.

Plaintiff Eric Flores's motion for leave to proceed in forma pauperis

[R. 3] is SUSTAINED.

All filing fees are waived, including the $50.00

administrative fee.
2.

Plaintiff Eric Flores's request for class certification and to act as the

lead plaintiff is OVERRULED and DENIED.
3.

This action is DISMISSED WITH PREJUDICE, pursuant to 28

U.S.C. § 1915(e)(2)(B)(i) and (ii).
4.

This Court CERTIFIES that any appeal of the dismissal of this action

would not be taken in good faith.

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5.

The Clerk is directed to transmit a copy of this Memorandum Opinion

and Order to the Sixth Circuit Court of Appeals.
This 2"d day ofNovember, 2015.

Signed By:
Henrv R. Wllhnft. Jr.

United etateG Cletrlct .!Udlll

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