Kellberg v. HBO Production Inc. et al

Filing 3

FINDINGS AND RECOMMENDATIONS re #1 MOTION for Leave to Proceed in forma pauperis filed by Wayne Dale Kellberg. Signed by Magistrate Judge Kathleen L. DeSoto on 10/13/2020. Mailed to Kellberg (TAG)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV 20-00152-M-DLC-KLD

WAYNE DALE KELLBERG,
Plaintiff,

FINDINGS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE
JUDGE

vs.
HBO PRODUCTIONS INC.
CHRISTINA,
Defendants.

Plaintiff Wayne Kellberg, appearing pro se in this action, has filed a motion
to proceed in forma pauperis under 28 U.S.C. § 1915(a) and submitted a proposed
Complaint. (Docs. 1, 2.) A district court has discretion to deny leave to proceed in
forma pauperis under 28 U.S.C. § 1915(a) “if it appears from the face of the
proposed complaint that the action is frivolous or without merit[,]” i.e. lacking any
arguable basis in fact or law. Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th
Cir. 1998); Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A document filed pro
se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Erickson v. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule Civ. Proc. 8(e)
(“Pleadings must be construed so as to do justice”).
Mr. Kellberg names HBO Productions Inc. and Christina (camera crew) as
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Defendants in this action but he fails to present any factual allegations giving rise
to a claim. The form Mr. Kellberg used for filing his Complaint specifically
provides the following instructions in the Statement of Claim section of the form:
Write a short and plain statement of the claim. Do not make legal
arguments. State as briefly as possible the facts showing that each
plaintiff is entitled to the damages or other relief sought. State how
each defendant was involved and what each defendant did that caused
the plaintiff harm or violated the plaintiff’s rights, including the dates
and places of that involvement or conduct. If more than one claim is
asserted, number each claim and write a short and plain statement of
each claim in a separate paragraph. Attach additional pages if needed.
(Doc. 2 at 4, ¶ III.) Despite these instructions, Mr. Kellberg provided no
information regarding his statement of claims. The only indication of the nature of
his claims is that he stated, “pain & suffering, attempted setups, blackmail” as a
basis for federal jurisdiction. (Doc. 2 at 3.) He does not present any facts
describing what Defendants allegedly did or failed to do, that would subject them
to liability under any legal theory. Even with liberal construction of Mr.
Kellberg’s pleading, the Court finds his allegations fail to state a claim upon which
relief could be granted as required by Rule 8(a) of the Federal Rules of Civil
Procedure. The allegations are frivolous and state no arguable basis in fact or law.
Mr. Kellberg is no stranger to this Court having filed eight lawsuits in the
last two years. He knows how to allege facts to support his claims because he did
so in Civil Action Nos. 18-176-M, 18-204-M, and 19-37-M. In addition, he knows
the Court cannot act on allegations that do not exist, because the Court dismissed
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Civil Action Nos. 18-106-M, 19-50-M, and 20-142-M on that basis.
Mr. Kellberg’s Complaint is frivolous and lacks any arguable basis in fact or
law. Therefore, it is appropriate to deny his motion to proceed in forma pauperis.
Mr. Kellberg is not entitled to a fourteen-day period to object. See Minetti,
152 F.3d at 1114. No motion for reconsideration will be entertained.
Based upon the following, the Court issues the following:
RECOMMENDATIONS
Mr. Kellberg’s Motion for Leave to Proceed in Forma Pauperis (Doc. 1)
should be DENIED. The Clerk of Court should be directed to close this matter
should Mr. Kellberg fail to pay the $400.00 filing fee within 14 days of the
adoption of these Recommendations.
DATED this 13th day of October, 2020.

Kathleen L. DeSoto
United States Magistrate Judge

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