Kellberg v. HBO Production Inc. et al

Filing 4

ORDER ADOPTING #3 FINDINGS AND RECOMMENDATIONS in full; denying #1 Motion for Leave to Proceed in forma pauperis. Clerk of Court shall close this matter unless Mr. Kellberg pays the $400.00 filing fee within 14 days of this Order. Signed by Judge Dana L. Christensen on 10/13/2020. Mailed to Kellberg (TAG)

Case 9:20-cv-00152-DLC-KLD Document 4 Filed 10/13/20 Page 1 of 4

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

WAYNE DALE KELLBERG,
Plaintiff,
vs.

ORDER

HBO PRODUCTIONS INC.,
CHRISTINA,
Defendant.
On October 13, 2020 United States Magistrate Judge Kathleen L. DeSoto
entered her Findings and Recommendations (Doc. 3) recommending that Plaintiff
Wayne Dale Kellberg’s motion for leave to proceed in forma pauperis (Doc. 1) be
denied. Because Judge DeSoto was acting pursuant to the authority vested in her
under 28 U.S.C. § 636(b)(3) in entering her Findings and Recommendations (Doc.
3), Mr. Kellberg is not afforded the opportunity to object. Minetti v. Port of
Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998).
This lack of an opportunity to object, however, necessitates de novo review.
See United States v. Peacock, 761 F.2d 1313, 1318 (9th Cir. 1985) (holding that
referral of matters to magistrates under 28 U.S.C. § 636(b)(3) “does not offend the
Constitution so long as de novo review is available in the district court”).
Ultimately, the Court finds that de novo review compels the same conclusion

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reached by Judge DeSoto.
Federal law generally requires plaintiffs to pay a fee before their civil
complaint will be filed. 28 U.S.C. § 1914(a). This Court may waive the filing fee
for persons who cannot afford it by granting them in forma pauperis status. Id. §
1915(a); see also Andrews v. Cervantes, 493 F.3d 1047, 1051 n.1 (9th Cir. 2006)
(noting that although this statute it textually limited to “prisoners” in places, it
nonetheless “applies to all persons”). Importantly, proceeding in forma pauperis
“is a privilege, not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).
As such, this Court must “examine any application for leave to proceed in
forma pauperis to determine whether the proposed proceeding has merit and if it
appears that the proceeding is without merit, the court is bound to deny a motion
seeking leave to proceed in forma pauperis.” Id. Indeed, this 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.” Minetti, 152
F.3d at 1115. In light of Mr. Kellberg’s pro se status, this Court will liberally
construe his proposed complaint applying “less stringent standards than formal
pleadings drafted by lawyers” no matter how “inartfully pleaded.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). Applying these principles, the Court finds that
Mr. Kellberg’s proposed complaint is without merit.
Mr. Kellberg’s proposed complaint names HBO Productions Inc. and
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Christina as defendants. (Doc. 2 at 1.) Besides the indication that Christina’s job
or title is “camera crew,” no further information regarding this defendant’s identity
is provided. (Id. at 2.) Mr. Kellberg’s proposed complaint contains little else,
simply stating “pain & suffering, attempted setups, blackmail” as a basis for
federal question jurisdiction. (Id. at 3.) Even affording Mr. Kellberg’s proposed
pleading the liberal construction it deserves, the Court finds no basis upon which it
can conclude any proceedings commenced by it would have merit. On the
contrary, the utter lack of any supporting allegations forces this Court to conclude
that the proposed complaint is without merit.
As Judge DeSoto noted, Mr. Kellberg is not unfamiliar with how to plead
the allegations necessary to support a claim in federal court. (Doc. 3 at 2.) Mr.
Kellberg has filed eight lawsuits in a two-year span. (Id.) In some of those suits
he has satisfied the liberal pleading standard necessary to advance a claim and in
others, as here, he has not. (Id. at 2–3.) Indeed, just over a month ago this Court
refused to permit Mr. Kellberg to proceed in forma pauperis for lodging a proposed
pleading strikingly similar in both form and insufficiency to the one at issue here.
Order, Kellberg v. HBO Prods. President (Channel 143), (D. Mont. Sept. 10,
2020) (CV 20-00142-M-DLC). In sum, the Court finds that the proceeding Mr.
Kellberg seeks to initiate is without merit.
Accordingly, IT IS ORDERED that Judge DeSoto’s Findings and
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Recommendations (Doc. 3) is ADOPTED in full.
IT IS FURTHER ORDERED that Mr. Kellberg’s motion for leave to
proceed in forma pauperis (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall close this matter
unless Mr. Kellberg pays the $400.00 filing fee within 14 days of this Order.
DATED this 13th day of October, 2020.

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