Sekiya v. Rodgers et al

Filing 5

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 2 Motion for Leave to Proceed In Forma Pauperis, dismissing 1 Plaintiff's Complaint without prejudice and ordering Plaintiff to Show Cause, within 14 days of entry of this Order, why the Court should not impose filing restrictions Show Cause Response due by 12/27/2017. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MIKKO T. SEKIYA,
Plaintiff,
v.

No. 17cv958 JCH/SCY

MIKE ROGERS,
NDA/FBI/FISA,
MARK ZUCKERBERG, and
FACEBOOK,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
AND ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on pro se Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs, Doc. 2, filed September 14, 2017 (“Application”)
and on Plaintiff’s Complaint, Doc. 1, filed September 14, 2017.1 For the reasons stated below, the
Court will GRANT Plaintiff’s Application and DISMISS Plaintiff’s Complaint without
prejudice. Plaintiff shall have 14 days from entry of this Order to file an amended complaint.
Failure to timely file an amended complaint may result in dismissal of this case without prejudice.
Plaintiff shall, within 14 days of entry of this Order, show cause why the Court should not impose
filing restrictions.
Application to Proceed in forma pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the
Court may authorize the commencement of any suit without prepayment of fees by a person who
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The Clerk’s Office called Plaintiff and left three detailed messages informing Plaintiff that the
Complaint is missing the first page and that Plaintiff needs to provide the Court with the first page.
Plaintiff has not responded.

submits an affidavit that includes a statement of all assets the person possesses and that the person
is unable to pay such fees.
When a district court receives an application for leave to proceed in forma pauperis,
it should examine the papers and determine if the requirements of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter,
if the court finds that the allegations of poverty are untrue or that the action is
frivolous or malicious, it may dismiss the case[.]
Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58,
60 (10th Cir. 1962). “The statute [allowing a litigant to proceed in forma pauperis ] was intended
for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute,”
“an affidavit is sufficient which states that one cannot because of his poverty pay or give security
for the costs and still be able to provide himself and dependents with the necessities of life.” Id. at
339.
The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit stating he is unable to pay the costs of these
proceedings and provided the following information: (i) Plaintiff is unemployed; (ii) Plaintiff’s
average monthly income is $0.00; (iii) Plaintiff’s monthly expenses total $0.00; and (iv) Plaintiff
owns no assets. The Court finds that Plaintiff is unable to pay the costs of this proceeding because
he is unemployed and has no income.
Dismissal of Proceedings In Forma Pauperis
The statute governing proceedings in forma pauperis requires federal courts to dismiss an
in forma pauperis proceeding that “is frivolous or malicious; ... fails to state a claim on which
relief may be granted; ... or seeks monetary relief against a defendant who is immune from such

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relief.” See 28 U.S.C. § 1915(e)(2). “[P]ro se litigants are to be given reasonable opportunity to
remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir.
1991).
Plaintiff alleges the following facts:
[Mike Rogers] is fully knowledgeabale of the so called investigation that is taking
place.
....
I Mikko T. Sekiya a United States Citizen has been having a 3 yr long harrassing by
the FBI/NSA throught the FISA Agency I have become what they call a FISA 702
as an American I cannot become a FISA 702. I have asked a number of times for
this to stop Mark Zuckerberg/Facebook has been going along with this unethical
way of investigation that is being conducted.
....
privacy act my 3rd 4th amendment has been violated for the past 3 years.
....
Mike Rogers NSA is the one who requests these types of investigation to happen
through the FISA agency.
....
A physical in the human body wire tap with out my concent has been done during a
surgical proceedure. Am going to be asking for a court oder subpoena for an exray
to be done on I Mikko T. Sekiyas Facial Structure/nasal cavity skull
....
being herd by numerous entitys wich makes any thing I say or do be used against
me throughout my community. The constint harrasment by local judicial courts
prolonging cases. violating my Due process rights.
[sic] Complaint at 1-4.
The Court will dismiss the Complaint without prejudice for failure to state a claim on
which relief may be granted. “[T]o state a claim in federal court, a complaint must explain what
each defendant did to him or her; when the defendant did it; how the defendant’s action harmed
him or her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v.
Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th
Cir. 2007). Plaintiff’s allegations do not state with particularity what each Defendant did to him,

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how their actions harmed him and what specific right he believes Defendants violated. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“conclusory allegations without supporting
factual averments are insufficient to state a claim on which relief can be based . . . [and] in
analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the
plaintiff's well-pleaded factual contentions, not his conclusory allegations”).
Plaintiff shall have 14 days from entry of this Order to file an amended complaint. Failure
to timely file an amended complaint may result in dismissal of this case without prejudice.
Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants at this time.
The Court will order service if Plaintiff timely files an amended complaint which states a claim
over which the Court has jurisdiction, and which includes the address of every defendant named in
the amended complaint.
Court’s Power to Impose Filing Restrictions
The Court of Appeals for the Tenth Circuit has discussed the Court’s power to impose
filing restrictions and the procedure for imposing filing restrictions:
“[T]he right of access to the courts is neither absolute nor unconditional and there is
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no constitutional right of access to the courts to prosecute an action that is frivolous
or malicious.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.1989) (per curiam)
(citation omitted). “There is strong precedent establishing the inherent power of
federal courts to regulate the activities of abusive litigants by imposing carefully
tailored restrictions under the appropriate circumstances.” Cotner v. Hopkins, 795
F.2d 900, 902 (10th Cir.1986). “Even onerous conditions may be imposed upon a
litigant as long as they are designed to assist the ... court in curbing the particular
abusive behavior involved,” except that they “cannot be so burdensome ... as to
deny a litigant meaningful access to the courts.” Id. (brackets and internal quotation
marks omitted). “Litigiousness alone will not support an injunction restricting
filing activities. However, injunctions are proper where the litigant's abusive and
lengthy history is properly set forth.” Tripati, 878 F.2d at 353 (citations omitted).
“[T]here must be some guidelines as to what [a party] must do to obtain the court's
permission to file an action.” Id. at 354. “In addition, [the party] is entitled to notice
and an opportunity to oppose the court's order before it is instituted.” Id. A hearing
is not required; a written opportunity to respond is sufficient. See id.
Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013).
Litigant’s Abusive History
This is the fourth civil case Plaintiff has initiated in the District of New Mexico which
asserts a privacy claim against Facebook and/or Mark Zuckerberg. See Sekiya v. Facebook, No.
16cv1368 KG/SCY; Sekiya v. Zuckerberg, No. 17cv283 JCH/KK; and Sekiya v. FBI, No. 17cv531
MCA/LF (Defendants include both Facebook and Mark Zuckerber). The complaints in the
previous three cases, like this case, failed to state a claim on which relief may be granted. The
Court dismissed the complaints in each of the previous three cases and granted Plaintiff leave to
file an amended complaint. In each of the three previous cases Plaintiff failed to timely file an
amended complaint. The Court finds that filing restrictions are appropriate so that the Court does
not expend valuable resources addressing future such cases.
Proposed Filing Restrictions
The Court proposes to impose the following filing restrictions on Plaintiff.
Plaintiff will be enjoined from making further filings in this case except objections to this
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order, a notice of appeal and a motion for leave to proceed on appeal in forma pauperis; and the
Clerk will be directed to return without filing any additional submissions by Plaintiff in this case
other than objections to this order, a notice of appeal, or a motion for leave to proceed on appeal in
forma pauperis, unless:
1. a licensed attorney who is admitted to practice before this Court and has appeared in this
action signs the proposed filing; or
2. the Plaintiff has obtained permission to proceed pro se in this action in accordance with
the procedures for new pleadings set forth below.
Plaintiff also will be enjoined from initiating further litigation in this Court, and the Clerk
will be directed to return without filing any initial pleading that he submits, unless either a licensed
attorney who is admitted to practice before this Court signs the pleading or Plaintiff first obtains
permission to proceed pro se. See DePineda v. Hemphill, 34 F.3d 946, 948-49 (10th Cir. 1994).
To obtain permission to proceed pro se in this Court, Plaintiff must take the following steps:
1. File with the Clerk of Court a petition requesting leave to file a pro se initial pleading, a
notarized affidavit, the proposed initial pleading, and a copy of these filing restrictions;
2. The affidavit must be notarized, be in proper legal form and recite the claims that
Plaintiff seeks to present, including a short discussion of the legal bases for the claims, and the
basis of the Court’s jurisdiction of the subject matter and parties. The affidavit must certify that,
to the best of Plaintiff’s knowledge, his claims are not frivolous or made in bad faith; that they are
warranted by existing law or a good faith argument for the extension, modification, or reversal of
existing law; that the new suit is not initiated for any improper purpose such as delay or needless
increase in the cost of litigation; and that he will comply with all Federal Rules of Civil Procedure

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and the District of New Mexico’s Local Rules of Civil Procedure. If Plaintiff’s claims have
previously been raised or the defendants have previously been sued, the affidavit must certify that
the proposed new suit does not present the same claims that this or other court has decided and
explain why the new suit would not be an abuse of the system;
3. The Clerk of the Court shall open a new civil case, file the petition, the affidavit, the
proposed pleading and the copy of these restrictions in the new civil case, and randomly assign a
Magistrate Judge to determine whether to grant Plaintiff’s petition to proceed pro se in the new
civil case. See Mem. Op. and Order, Doc. 5 in In re Billy L. Edwards, No. 15cv631 MCA/SMV
(D.N.M. November 13, 2015) (adopting procedure, similar to that of the Tenth Circuit, of opening
a new case and filing the restricted filer’s petition to proceed pro se). If the Magistrate Judge
approves Plaintiff’s petition to proceed pro se, the Magistrate Judge shall enter an order indicating
that the matter shall proceed in accordance with the Federal Rules of Civil Procedure and the
District of New Mexico’s Local Rules of Civil Procedure. If the Magistrate Judge does not
approve Plaintiff’s petition to proceed pro se, the Magistrate Judge shall instruct the Clerk to
assign a District Judge to the new case.
Opportunity to Be Heard
Plaintiff is ordered to show cause within fourteen (14) days from the date of this order why
this court should not enter the proposed filing restrictions. Plaintiff’s written objections to the
proposed filing restrictions shall be limited to 10 pages. Absent a timely response to this Order to
Show Cause, the proposed filing restrictions will enter fourteen (14) days from the date of this
order and will apply to any matter filed after that time. If Plaintiff does file a timely response, the
proposed filing restrictions will not enter unless the Court so orders, after it has considered the

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response and ruled on Plaintiff’s objections.
IT IS ORDERED that:
(i) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs,
Doc. 2, filed September 14, 2017, is GRANTED.
(ii) Plaintiff’s Complaint, Doc. 1, filed September 14, 2017, is DISMISSED without
prejudice. Plaintiff may file an amended complaint within 14 days of entry of this Order; and
(iii) within fourteen (14) days from entry of this Order, Plaintiff shall show cause why this
Court should not enter the proposed filing restrictions described above. If Plaintiff does not
timely file objections, the proposed filing restrictions shall take effect fourteen (14) days from the
date of this order and will apply to any matter filed after that time. If Plaintiff timely files
objections, restrictions will take effect only upon entry of a subsequent order.

__________________________________
UNITED STATES DISTRICT JUDGE

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