Caldwell v. United States

Filing 11

RECOMMENDATION AND ORDER DISMISSING CASE. Request to proceed without payment of fees as contained in Complaint 1 is denied, all pending motions are terminated, and this matter is dismissed. Any appeal of this decision would not be taken in good faith. Signed by Judge Susan P. Watters on 1/25/2016. Mailed to Caldwell. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

FILED
Clerk, U.S. District Court
District Of Montana
Bil!inas

CV 15-00132-BLG-SPW-CSO

KENNETH LESLIE CALDWELL,
Plaintiff,

RECOMMENDATION AND ORDER
TO DENY MOTION TO PROCEED
IN FORMA PAUPERIS

vs.
UNITED STATES, et al.,
Defendants.

Kenneth Caldwell, who listed his address as being in Alamosa,
Colorado, has submitted a nearly incomprehensible Complaint (ECF I)
naming the United States District Court(s) of Idaho, President Obama,
Bonneville County/others, a number of unnamed medical practitioners
in America, the United States Supreme Court, the United States
Court(s) of Appeals for the Ninth Circuit, Alamosa County Court
Alamosa Colorado, the Secretary of State, the United States Attorney
for the District of Colorado, the Attorney General of Colorado,
google.com, Niagara County NY, and Spokane County, WA. Cmplt.,
ECF 1 at 3-26. In his Complaint, Caldwell asks for a court appointed

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attorney and commencement of this action without the payment of fees
or costs. Cmplt., ECF 1 at 2.
Subsequent to the filing of the Complaint, Caldwell filed the
following documents:
1. Notice of Change of Address indicating that he currently

resided in Billings, Montana (ECF 2);
2. Motion for Fee Waiver (ECF 3);
3. Motion for Preliminary Injunction (ECF 4);
4. Motion to Seal (ECF 5);
5. Motion for Settlement or Summary Judgment (ECF 6);
6. Notice of Genocide (ECF 7);
7. Demand for Judicial Notice (ECF 8);
8. Demand for Executive Action (ECF 9); and
9. Motion for Leave to Proceed in forma pauperis (ECF 10).
Caldwell has failed to provide sufficient financial information, his
Complaint is frivolous, and venue is improper. The motions to proceed
in forma pauperis (ECF 1, 2, 10) should therefore be denied and this
matter dismissed.

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I. Motions to Proceed in Forma Pauperis
Permission to proceed in forma pauperis is discretionary with the
Court. See 28 U.S.C. § 1915(a). Leave to proceed in forma pauperis
should be granted if the affidavit sufficiently indicates the affiant
cannot pay court costs and still provide the necessities of life for himself
and his family. Adkins v. E. I. Du Pont De Nemours & Co., Inc., 335
U.S. 331, 339 (1948).
"A district court may deny leave to proceed in forma pauperis at
the outset if it appears from the face of the proposed complaint that the
action is frivolous or without merit." Tripati v. First Nat'l Bank &

Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).
Caldwell raises allegations on a plethora of issues including
complaints about how other courts have handled his cases, an
allegation against President Obama for failing to prevent an oil spill,
several allegations regarding the public disclosure of his confidential
medical records, an allegation that the Secretary of State edited his
passport photo to make his face red, an allegation against google.com
because it provides a search suggestion with the word obituary after his

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name, and an excessive force claim stemming from events in Spokane,
Washington. Cmplt., ECF 1 at 2-26.
Even liberally construed, Caldwell's Complaint fails to meet the
pleading requirements of Ashcroft u. Iqbal, 556 U.S. 662 (2009) and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Complaint is
frivolous. He provides no facts to support his claims, his allegations are
conclusory and he has failed to state a federal claim upon which relief
may be granted. As such, the motion to proceed in forma pauperis
should be denied and this matter dismissed.

II. Venue
Federal law provides that a civil action may be brought in: (1) a
judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located; (2) a judicial
district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated, or (3) if there is no district in which the
action may otherwise be brought, as provided above, any judicial
district in which any defendant is subject to the court's personal

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jurisdiction with respect to such action. 28 U.S.C. § 1391(b). "The
district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which it could
have been brought." 28 U.S.C. § 1406(a). The Court may, sua
sponte, raise the issue of defective venue and dismiss or transfer an
action before a responsive pleading is filed. See Costlow v. Weeks, 790
F.2d 1486, 1488 (9th Cir. 1986).
There is no allegation that any event forming the alleged basis of
this action occurred in Montana or that any named Defendant resides
in Montana. Caldwell has stated no basis for venue in Montana.
The Court finds that it would not be in the interest of justice to
transfer this matter and that it should be dismissed. See Costlow, 790
F.2d at 1488 (permitting a district court to dismiss an action sua sponte
for improper venue). In addition, the Complaint is so devoid of facts
and intelligible allegations and raises such a multitude of unrelated
issues that it would be impossible to determine where the matter
should be transferred.

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Based on the foregoing, the Court RECOMMENDS that the
following Order be issued by Judge Watten:r.,
DATED

th~f J

uary, 20

c

Based upon the above Recommendation by Judge Ostby, the
Court issues the following:

ORDER
1. Caldwell's request to proceed without payment of fees as
contained in his Complaint (ECF 1) is denied, all pending motions are
terminated, and this matter is dismissed. It would be futile to allow
Caldwell an opportunity to pay the filing fee in light of the frivolous
nature of his claims and because Montana is not a proper venue for his
claims.
2. The Clerk of Court is directed to close the case and enter
judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
3. No motions for reconsideration or rehearing will be entertained
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and the Clerk of Court is directed to discard any such motions.
4. The Clerk of Court is directed to have the docket reflect that
the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of
Appellate Procedure that any appeal of this decision would not be taken
in good faith.

.

vL-

DATED this :{S: day of January, 2016.

~r:u~

§USANP.WATTERS
United States District Judge

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