Albanese v. Department of Homeland Security

Filing 3

REPORT AND RECOMMENDATION Recommending to deny 1 Motion/Application for Leave to Proceed in forma pauperis and to dismiss complaint. Objections to R&R due by 8/7/2017. Signed by Magistrate Judge Peggy A. Leen on 7/24/2017. (Copies have been distributed pursuant to the NEF - JM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

GRACE ALBANESE,

Case No. 2:17-cv-01287-JCM-PAL

8

Plaintiff,

9
10
11

REPORT OF FINDINGS AND
RECOMMENDATION

v.
DEPARTMENT OF HOMELAND
SECURITY,

(IFP Application – ECF No. 1)

Defendant.

12
13

This matter is before the court on Plaintiff Grace Albanese’s Application to Proceed In

14

Forma Pauperis (ECF No. 1) pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of

15

Practice. This Application is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and

16

(B) and LR IB 1-3 and 1-4 of the Local Rules of Practice.

17

I.

IN FORMA PAUPERIS APPLICATION

18

Ms. Albanese is proceeding in this action pro se, which means that she is not represented

19

by an attorney. See LSR 2-1. She has requested authority pursuant to 28 U.S.C. § 1915 to proceed

20

in forma pauperis (“IFP”), meaning without prepaying the filing fees, and submitted a proposed

21

complaint. Pursuant to 28 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a filing

22

fee and administrative fee totaling $400 is required to commence a civil action in a federal district

23

court. The court may authorize a person to commence an action without the prepayment of fees

24

and costs if the person files an IFP application including an affidavit stating that he or she is unable

25

to pay the initial fees. See 28 U.S.C. § 1915(a)(1); LSR 1-1. However, the court must apply “even-

26

handed care” to ensure that “federal funds are not squandered to underwrite, at public expense,

27

either frivolous claims” or the colorable claims of a plaintiff “who is financially able, in whole or

28

in material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984)
1

1

(collecting cases). A “district court may deny leave to proceed in forma pauperis at the outset if it

2

appears from the face of the proposed complaint that the action is frivolous or without merit.”

3

Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat’l Bank

4

& Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). A complaint that “merely repeats pending or

5

previously litigated claims” is frivolous. See, e.g., Cato v. United States, 70 F.3d 1103, 1105 n.2

6

(9th Cir. 1995) (citation omitted); see also Denton v. Hernandez, 504 U.S. 25, 30 (1992); Martinez

7

v. Bureau of Immigration & Customs Enf’t, 316 F. App’x 640, 641 (9th Cir. 2009).

8

Since March 2016, Ms. Albanese has filed 45 federal cases in the District of Nevada, 42 of

9

which are currently ongoing and 13 of which are pending before the undersigned magistrate judge.1

10

In all, she has sued the Las Vegas Metropolitan Police Department (“LVMPD”) 30 times in just

11

over a year. Most of Albanese’s actions assert the same or very similar allegations: various persons

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

See Albanese v. Fed. Bureau of Investigations, 2:16-cv-00529-KJD-NJK; Albanese v. Transp. Security
Admin., 2:16-cv-00530-GMN-CWH; Albanese v. Homeland Security, 2:16-cv-00531-RFB-VCF; Albanese
v. Las Vegas Metro. Police Dep’t, 2:16-cv-00532-RFB-GWF; Albanese v. Regional Transp. Comm’n of
So. Nev., 2:16-cv-01882-APG-PAL; Albanese v. Las Vegas Metro Police Dep’t, 2:17-cv-00577-GMNPAL; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01087-GMN-GWF; Albanese v. Las Vegas
Metro. Police Dep’t, 2:17-cv-01284-MMD-NJK; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv01285-JCM-VCF, appeal docketed, No. 17-16127 (9th Cir. May 31, 2017); Albanese v. Fed. Bureau of
Investigations, 2:17-cv-01286-JAD-PAL; Albanese v. Dep’t of Homeland Security, 2:17-cv-01287-JCMPAL; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01520-JAD-CWH; Albanese v. Las Vegas
Metro. Police Dep’t, 2:17-cv-01544-RFB-PAL; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv01573-JCM-GWF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01574-RFB-PAL; Albanese v. Fed.
Bureau of Investigations, 2:17-cv-01599-JAD-VCF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv01600-JAD-VCF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01613-APG-PAL; Albanese v. Fed.
Bureau of Investigations, 2:17-cv-01614-JAD-PAL; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv01633-JAD-VCF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01634-RFB-CWH; Albanese v. Fed.
Bureau of Investigations, 2:17-cv-01635-JAD-CWH; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv01640-MMD-VCF; Albanese v. Fed. Bureau of Investigations, 2:17-cv-01641-JAD-GWF; Albanese v.
Homeland Security, 2:17-cv-01642-RFB-GWF; Albanese v. Fed. Bureau of Investigations, 2:17-cv-01662JAD-NJK; Albanese v. Homeland Security, 2:17-cv-01663-JCM-NJK; Albanese v. Las Vegas Metro. Police
Dep’t, 2:17-cv-01664-JCM-GWF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01735-JCM-PAL;
Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01780-JCM-VCF; Albanese v. Las Vegas Metro.
Police Dep’t, 2:17-cv-01782-JCM-VCF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01795-JADGWF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01807-JCM-GWF; Albanese v. Las Vegas
Metro. Police Dep’t, 2:17-cv-01808-APG-GWF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv01832-KJD-PAL; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01852-JCM-GWF; Albanese v. Fed.
Bureau of Investigations, 2:17-cv-01871-JAD-VCF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv01872-RFB-VCF; Albanese v. Homeland Security, 2:17-cv-01874-RFB-VCF; Albanese v. Las Vegas
Metro. Police Dep’t, 2:17-cv-01896-JCM-VCF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv01903-MMD-GWF; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01904-JCM-PAL; Albanese v.
Las Vegas Metro. Police Dep’t, 2:17-cv-01972-JAD-NJK; Albanese v. Las Vegas Metro. Police Dep’t,
2:17-cv-01973-RFB-PAL; Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01974-JAD-PAL.

2

1

stalk or spy on Albanese in her bedroom and when she travels around Las Vegas, sometimes using

2

listening devices or hacking into her phone, but federal and state law enforcement officers ignore

3

her requests for help and refuse to investigate or arrest the wrongdoers. She asserts similar legal

4

claims in all her cases pursuant to 42 U.S.C. § 1983: violations of her due process, equal protection,

5

and free speech rights, obstruction of justice, defamation, public corruption, and conspiracy.

6

Ms. Albanese has been warned by the undersigned as well as Magistrate Judge Cam

7

Ferenbach that duplicative lawsuits with virtually identical causes of action are subject to dismissal

8

under 28 U.S.C § 1915. See Albanese v. Fed. Bureau of Investigations, 2:17-cv-01599-JAD-VCF,

9

June 19, 2017 Report & Recommendation (ECF No. 3); Albanese v. Las Vegas Metro Police

10

Dep’t, 2:17-cv-00577-GMN-PAL, June 30, 2017 Report & Recommendation (ECF No. 68).

11

Additionally, Judge Ferenbach has recommended that she be declared a vexatious litigant and be

12

prohibited from filing any complaint, petition, or other document without first obtaining leave

13

from the Chief Judge. His report and recommendation is currently pending before United States

14

District Court Judge Jennifer A. Dorsey.

15

Having reviewed her complaint in this case, the court finds that her claims are frivolous

16

and duplicative and will recommend denial of her IFP application and dismissal of the complaint.

17

II.

SCREENING THE COMPLAINT

18

A. Legal Standard

19

Pursuant to § 1915(e), federal courts must screen all IFP complaints prior to a responsive

20

pleading. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (§ 1915(e) applies to “all

21

in forma pauperis complaints”). Allegations in a pro se complaint are held to less stringent

22

standards than formal pleading drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007);

23

Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010). However, pro se litigants “should not be

24

treated more favorably than parties with attorneys of record,” Jacobsen v. Filler, 790 F.2d 1362,

25

1364 (9th Cir. 1986); rather, they must follow the same rules of procedure that govern other

26

litigants. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

27

Federal courts are required to dismiss an IFP action if the complaint fails to state a claim

28

upon which relief may be granted, is legally “frivolous or malicious,” or seeks monetary relief
3

1

from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint may be

2

characterized as malicious “when it is ‘filed with the intention or desire to harm another’.” Knapp

3

v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (quoting Andrews v. King, 398 F.3d 1113, 1121

4

(9th Cir. 2005)). Allegations are frivolous when they are “clearly baseless” or lack an arguable

5

basis in law and fact. Denton, 504 U.S. at 32; see also Neitzke v. Williams, 490 U.S. 319, 325

6

(1989). Frivolous claims include those based on legal conclusions that are untenable (e.g., claims

7

against defendants who are immune from suit or claims of infringement of a legal interest that

8

clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or

9

delusional scenarios). Neitzke, 490 U.S. at 327–28; McKeever v. Block, 932 F.2d 795, 798 (9th

10

Cir. 1991); Andrews, 398 F.3d at 1121. In determining whether a complaint is frivolous and

11

therefore warrants complete or partial dismissal, a court is not bound “to accept without question

12

the truth of the plaintiff’s allegations.” Denton, 504 U.S. at 32. A complaint may be dismissed as

13

frivolous if it “merely repeats pending or previously litigated claims.” Cato, 70 F.3d at 1105 n.2

14

(citation omitted); see also Aziz v. Burrows, 976 F.2d 1158, 1158 (8th Cir. 1992) (“district courts

15

may dismiss a duplicative complaint raising issues directly related to issues in another pending

16

action brought by the same party”); Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th

17

Cir. 2007) (“Plaintiffs generally have no right to maintain two separate actions involving the same

18

subject matter at the same time in the same court and against the same defendant.”), overruled in

19

part on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008); McWilliams v. State of Colorado,

20

121 F.3d 573, 574 (11th Cir. 1997) (holding that repetitious action may be dismissed as frivolous

21

or malicious).

22

B. Ms. Albanese’s Duplicative Factual Allegations and Claims for Relief

23

The court finds that the complaint in this case is frivolous because it merely repeats claims

24

pending in other cases. Here, Albanese is suing the Department of Homeland Security for, among

25

other things, violation of her due process and equal protection rights under 42 U.S.C. § 1983. She

26

alleges that officers

27
28

Den[ied] me equal protection under the law by not informing that 1107 E. Desert
Inn #3 and 9 are observing me in my room. Obstruction of justice by not informing
any law enforcement that I am being observed in my room and listening device is
4

being used by Apts 3 and 9 to spy on me. Not informing me Apt 3 has hacked into
my phone ….”

1
2

Compl. (ECF No. 1-1).

3

In Albanese v. Federal Bureau of Investigations, 2:17-cv-01286-JAD-PAL, Albanese sued

4

the FBI under § 1983 for, among other things, violating her civil rights by denying her equal

5

protection, and obstruction of justice. Id., Compl. (ECF No. 1-1). The complaint alleges in its

6

entirety:
Complaint: Denying me equal protection under the law by not informing me that
1107 E. Desert Inn Apts 3 and 9 are observing me in my room. Obstruction of
justice by not informing any law enforcement that I am being observed in my room
and listening device is used by Apts. 3 and 9 to spy on me. Violating my 4, 5, 9,
14th and privacy rights. $500,000.00 demand.

7
8
9
10

Id.

11

In Albanese v. Federal Bureau Of Investigation, 2:17-cv-01614-JAD-PAL, Albanese sued

12

the FBI under § 1983 for violating her civil rights by denying her equal protection, and obstruction

13

of justice. Id., Compl. (ECF No. 1-1). The complaint alleges the following:

14

Allowing people to stalk me on a daily basis in violation of my equal protection.
Allowing people to inform on me to people who are funding and supporting
someone who stalks me on a daily basis allowing obstruction of the law to aid in
stalking to continue.

15
16
17

Id.

18

In Albanese v. Federal Bureau of Investigations, 2:17-cv-01635-JAD-CWH, Albanese

19

sued the FBI under § 1983 for violating her civil rights by denying her due process and equal

20

protection, and obstruction of justice. Id., Compl. (ECF No. 1-1). Her complaint alleges:

21

The F.B.I. refuse to help me when they know I’m being followed by the same man
who is being supported and funded by people who want me to move. The F.B.I.
refuse to help me when I am being stalked and they know by whom. The F.B.I.
refuses to pull the plug on 1107 E. Desert Inn Apts 3 and 9 observation of me in
my room. The F.B.I. know I’m being stalked and they won’t help me. This is
obstruction of justice, denying me due process and equal protection.

22
23
24
25

Id.
In Albanese v. Federal Bureau of Investigations, 2:17-cv-01641-JAD-GWF, Albanese

26
27

sued the FBI under § 1983 for violating her civil rights by denying her due process and equal

28

///
5

1

protection, and obstruction of justice. Id., Compl. (ECF No. 1-1). The complaint in that case states

2

in its entirety the following:

5

The F.B.I. are aware that 1107 E. Desert Inn Apts 3 and 9 are observing me in my
bedroom and on June 13 Desert Parkway Behavioral Hospital CNA’s were waiting
for me while seeing my image live streamed on their phones. June 12 1089 E.
Desert Inn Apts 7 was live streamed my image when he stalked me. The F.B.I. is
acting in collusion with Apts 3 and 9 who are com[m]itting criminal misconduct.

6

Id. See also Albanese v. Las Vegas Metro. Police Dep’t, 2:17-cv-01640-MMD-VCF, Compl. (ECF

7

No. 1-1) (“Las Vegas Police Department 311 / 911 Heather 10183 and so many others are

8

obstructing justice by saying I’m not being stalked June 13 at Desert Parkway Behavioral Hospital.

9

1107 E. Desert Inn Apts 3 and 9 are live streaming my image to Desert Parkway & June 12 to

10

1089 E. Desert Inn #7 when they stalked me. I call 311 / 911 and they act naive and act like F.B.I.

11

C.I.A. & homeland security by saying they know no stalking is taking place.”); Albanese v. Las

12

Vegas Metro. Police Dep’t, 2:17-cv-01285-JCM-VCF, Compl. (ECF No. 1-1) (“Denying me equal

13

protection under the law by not informing me 1107 E-Desert Inn # 3 and 9 are observing me in my

14

room. And that listening device is being use by them to spy on me. Obstruction of justice by not

15

informing law enforcement that Apts. 3 and 9 are observing me in my room and that Apt 3 has

16

hacked into my phone”), appeal docketed, No. 17-16127 (9th Cir. May 31, 2017); Albanese v. Las

17

Vegas Metro. Police Dep’t, 2:17-cv-01904-JCM-PAL, Compl. (ECF No. 1-1) (“So it’s like a

18

vicious circle. I keep being stalked (with police foreknowledge). I call the cops. The police keep

19

defending Apts. 3 and 9 who harass me. I keep suing.”)

3
4

20

Here, the court finds that Albanese’s complaint is duplicative and frivolous as it merely

21

repeats pending or previously litigated claims. These actions follow a distinct pattern, which

22

Albanese herself acknowledges. Id. Ms. Albanese believes that various persons stalk or spy on

23

her in her home and when she travels around Las Vegas. However, she alleges that federal and

24

local law enforcement officers refuse to inform her of this or investigate and arrest her stalkers.

25

She asserts similar legal claims in most of her cases pursuant to 42 U.S.C. § 1983: violations of

26

her due process, equal protection, privacy and free speech rights, and obstruction of justice.

27

Because this action is duplicative and frivolous dismissal is appropriate. See Cato, 70 F.3d at 1105

28

n.2.
6

1

Based on the foregoing,

2

IT IS RECOMMENDED that:

3

1. Plaintiff Grace Albanese’s Application to Proceed In Forma Pauperis (ECF No. 1) be
DENIED.

4
5

2. The Complaint (ECF No. 1-1) be DISMISSED.

6

3. The Clerk of the Court be instructed to close this case and enter judgment accordingly.

7

Dated this 24th day of July, 2017.

8
9

PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

10

NOTICE

11
12

This Report of Findings and Recommendation is submitted to the assigned district judge

13

pursuant to 28 U.S.C. § 636(b)(1) and is not immediately appealable to the Court of Appeals for

14

the Ninth Circuit. Any notice of appeal to the Ninth Circuit should not be filed until entry of the

15

district court’s judgment. See Fed. R. App. P. 4(a)(1). Pursuant to LR IB 3-2(a) of the Local Rules

16

of Practice, any party wishing to object to a magistrate judge’s findings and recommendations of

17

shall file and serve specific written objections, together with points and authorities in support of

18

those objections, within 14 days of the date of service. See also 28 U.S.C. § 636(b)(1); Fed. R.

19

Civ. P. 6, 72. The document should be captioned “Objections to Magistrate Judge’s Report of

20

Findings and Recommendation,” and it is subject to the page limitations found in LR 7-3(b). The

21

parties are advised that failure to file objections within the specified time may result in the district

22

court’s acceptance of this Report of Findings and Recommendation without further review. United

23

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). In addition, failure to file timely

24

objections to any factual determinations by a magistrate judge may be considered a waiver of a

25

party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to

26

the recommendation. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991); Fed. R. Civ. P.

27

72.

28
7