Connors v. United States of America et al

Filing 15

ORDER GRANTING 3 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall not be required to pre-pay the full filing fee. IT IS ORDERED that this Order granting leave to proceed in forma pauperis shall not extend to the issuance of subpoenas at government expense. IT IS ORDERED that the Clerk shall file the Complaint (Ack'd). IT IS FURTHER ORDERED that the Complaint is dismissed without prejudice for failure to state a claim upon which relief can be granted, with lea ve to amend. Plaintiff shall have thirty (30) days to file an Amended Complaint. Failure to comply with this Order will result in the dismissal of this action. (Amended Complaint deadline: 9/11/2011.) Signed by Magistrate Judge George Foley, Jr on 8/10/2011. (Copies have been distributed pursuant to the NEF - MLC)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8
9
10
11
12

FREDRICK CONNORS

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA,et al,
)
)
Defendants.
)
__________________________________________)

Case No. 3:11-cv-00345-LRH-GWF
ORDER
Application to Proceed in Forma
Pauperis (#3) and Screening of
Complaint

13
This matter comes before the Court on Plaintiff’s Application to Proceed in Forma
14
Pauperis (#3), filed May 23, 2011.
15
BACKGROUND
16
Plaintiff filed a Complaint with the Court (#1), on May 13, 2011 alleging Invasion of
17
Privacy against the United States of America, Research in Motion, Ltd., Google Inc., Yahoo Inc.,
18
and Verizon Wireless. The Complaint, on its face, does not contain any facts to support the
19
Plaintiff’s alleged civil rights violation. Instead, attached to the Complaint, Plaintiff included
20
several letters and documents stating that he was injected with what he believes to be a VeriChip in
21
1999. Plaintiff alleges this VeriChip is being used to stalk him by the named Defendants.
22
On May 23, 2011, Plaintiff filed an Application to Proceed in Forma Pauperis (#3), along
23
with more attached letters. Additionally, Plaintiff filed another letter with the Court on June 16,
24
2011 (#5), requesting the following parties be added to his civil rights action: Apple Inc.,
25
Microsoft, Myspace (Facebook), and NV Energy.
26
...
27
...
28

1
2

DISCUSSION
I.

3

Application to Proceed In Forma Pauperis
Plaintiff filed this instant action and attached a financial affidavit to his application and

4

complaint as required by 28 U.S.C. § 1915(a). Reviewing Connor's financial affidavit pursuant to

5

28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result,

6

Plaintiff's request to proceed in forma pauperis in federal court is granted.

7

II.

Screening the Complaint

8

Upon granting a request to proceed in forma pauperis, a court must additionally screen a

9

complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

10

dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which

11

relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

12

28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for failure to state a

13

claim upon which relief may be granted “if it appears beyond a doubt that the plaintiff can prove no

14

set of facts in support of his claims that would entitle him to relief.” Buckey v. Los Angeles, 968

15

F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed as frivolous if it is premised on a

16

nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327–28

17

(1989). Moreover, “a finding of factual frivolousness is appropriate when the facts alleged rise to

18

the level of the irrational or the wholly incredible, whether or not there are judicially noticeable

19

facts available to contradict them.” Denton, 504 U.S. at 33. When a court dismisses a complaint

20

under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to

21

curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could

22

not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

23

A.

24

42 U.S.C. § 1983 is the vehicle through which plaintiffs can seek redress for violations of

25

rights secured by the United States constitution and laws. In order to state a claim under § 1983,

26

the plaintiff must show (1) a deprivation by the defendant of a right secured by the United States

27

constitution or laws and (2) that the defendant deprived plaintiff of this right under color of state

28

law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970);

Civil Rights Claim

2

1

Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928, 941 (9th Cir. 1977); Barragan v.

2

Landry, 2008 WL 873347, *6 (D. Nev. 2008).

3

Section 1983 states in relevant part:

4

Every person who, under color of a statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding from redress, ....

5
6
7
8

42 U.S.C. § 1983.

9

Plaintiff filed his complaint alleging Invasion of Privacy against the Defendants. The

10

Complaint, on its face, alleges no facts or legal causes of actions nor does it identify any individuals

11

responsible for any alleged civil rights violation. Instead, the Plaintiff attached several letters and

12

documents to the Complaint stating that he had been injected with a VeriChip in 1999. Taking all

13

the papers and pleadings submitted to the Court, the Plaintiff did not file his civil rights complaint

14

in the proper form, and the Court is unclear if, in fact, the Plaintiff is alleging a civil rights violation

15

under § 1983.

16

The court will give Plaintiff an opportunity to amend the complaint to cure its deficiencies,

17

and give Plaintiff some guidance in this regard. As stated above, there are two basic elements that

18

a plaintiff is required to allege to have a claim under § 1983. First, plaintiff must allege that

19

someone has deprived him/her of a right guaranteed to him/her by the federal constitution. The

20

second is that the person who deprived him/her of that right acted under color of state law. Some

21

of these rights are: the right to free speech under the First Amendment, the right to due process

22

under the Fifth Amendment, and the Fourteenth Amendment right to equal protection. These rights

23

are usually violated by some action that discriminates against a person on the basis of race, gender,

24

religion, national origin or denies one free speech.

25

Once the plaintiff alleges that his or her federal rights have been violated, then a plaintiff

26

must show that those rights were violated by a person acting under color of state law. This means

27

that plaintiff must name a person as a defendant in the complaint and that person must have acted

28

under what is called “color of state law.” Persons acting under color of state law typically include
3

1

officials who in some capacity represent either the state, city, or county government. See Monroe v.

2

Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d. 492 (1961), partially overruled on other grounds by

3

Monell v. Department of Social Services of City of New York, 436 U.S. 658, 663, 98 S.Ct. 2018,

4

2021 (1978). For purposes of bringing a § 1983 claim, under relatively narrow and specific

5

circumstances, a “person” can also include a municipality such as a town, city, or one of its bodies

6

such as the police or fire department. Monell, 436 U.S. at 663, 98 S.Ct. at 2021. Private persons

7

who are not government officials may also be sued, but they and their actions must be very closely

8

tied to the government in order to be considered “acting under color of state law.” Blum v.

9

Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). Under the doctrine of sovereign

10

immunity, a state, which includes state agencies, cannot be sued for money damages under § 1983

11

and may be sued only for prospective relief such as an injunction. Will v. Michigan Dept. State

12

Police, 491 U.S. 58, 70-71 n.10, 109 S.Ct. 2304, 2312, 108 L.Ed.2d 45 (1989).

13

Plaintiff’s claims against Defendants United States of America and several named

14

corporations do not allege that a federal constitutional right was violated by a government official.

15

For purposes of § 1983, the named Defendants are not deemed government officials acting under

16

the color of state law. Plaintiff may, however, bring a claim against individual federal officers for

17

constitutional violations. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

18

403 U.S. 388 (1971). A Bivens claim “can be maintained against a defendant in his or her

19

individual capacity only, and not in his or her official capacity.” Daly-Murphy v. Winston, 837

20

F.2d 348, 355 (9th Cir.1988).

21

Plaintiff has failed to state a claim upon which relief may be granted under § 1983.

22

Accordingly, Plaintiff’s Complaint will be dismissed with leave to amend pursuant to 28 U.S.C.

23

1915(e)(2) to permit Plaintiff to allege facts which would establish a claim under 42 U.S.C. § 1983.

24

Accordingly,

25

IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis

26

(#3) is granted. Plaintiff shall not be required to pre-pay the full filing fee of three hundred fifty

27

dollars ($350.00).

28
4

1

IT IS FURTHER ORDERED that the movant herein is permitted to maintain this action

2

to conclusion without the necessity of prepayment of any additional fees or costs or the giving of

3

security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

4

issuance of subpoenas at government expense.

5

IT IS FURTHER ORDERED that the Clerk of the Court shall file the Complaint.

6

IT IS FURTHER ORDERED that the Complaint is dismissed without prejudice for

7

failure to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have

8

thirty (30) days from the date that this Order is entered to file his Amended Complaint if he

9

believes he can correct the noted deficiencies. Failure to comply with this Order will result in the

10
11

dismissal of this action.
DATED this 10th day of August, 2011.

12
13
14

GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
5