Oyarzun v. Deane et al
DECISION AND ORDER: Plaintiff's Motion for Leave to Proceed in forma pauperis 2 is GRANTED, however, her Complaints 1 7 10 are DISMISSED WITH PREJUDICE and her Motions 4 6 are DENIED AS MOOT. The Clerk of Court is directed to close this case. SO ORDERED. A copy of this NEF and Order have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 11/21/2017. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LUISA MARIA OYARZUN,
Case # 17-CV-6733-FPG
DECISION AND ORDER
DIANE M. DEANE et al,
On October 25, 2017, pro se Plaintiff Luisa Maria Oyarzun filed a Complaint against
Defendants and moved to proceed in forma pauperis. ECF Nos. 1, 2. On November 6 and 9,
2017, Plaintiff filed an Amended Complaint and a Second Amended Complaint. ECF Nos. 7, 10.
Plaintiff has also made two motions asking the Court to provide her with various forms of relief.
ECF Nos. 4, 6.
The Court finds that Plaintiff has met the statutory requirements to proceed as a poor person
pursuant to 28 U.S.C. § 1915(a), and therefore her in forma pauperis motion is GRANTED. The
Court has screened all of Plaintiff’s Complaints with respect to the 28 U.S.C. §1915(e) criteria.
For the reasons that follow, Plaintiff’s Complaints (ECF Nos. 1, 7, 10) are DISMISSED WITH
PREJUDICE and her motions are DENIED AS MOOT (ECF Nos. 4, 6).
Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss
legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). Pursuant to Section 1915(e), the Court must dismiss a
complaint in a civil action if the Court determines at any time that the action (1) is frivolous or
malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Generally,
the Court will afford a pro se plaintiff an opportunity to amend or be heard before dismissal “unless
the court can rule out any possibility, however unlikely it might be, that an amended complaint
would succeed in stating a claim.” Abbas, 480 F.3d at 639 (internal quotation marks omitted).
Thus, leave to amend pleadings is properly denied where amendment would be futile. See Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993) (“Where it appears that granting leave to amend is unlikely to be productive, . . . it
is not an abuse of discretion to deny leave to amend.”).
After reviewing all of Plaintiff’s pleadings, the Court finds that they are frivolous and must
be dismissed. While Plaintiff’s allegations are scattered and confusing, she appears, upon a liberal
reading of her submissions, to allege that the Social Security Administration (“SSA”), several SSA
employees, and the Livingston County Department of Social Services and its Commissioner have
conspired against her to steal her Social Security Disability checks.
Plaintiff alleges that
conspired against me and my daughter to cause us harm. After the
said Government employees defrauded the U.S. Government and
the tax payers (by signing us up for dozens of government agencies
without my knowledge or consent and pocketing and selling the
benefits), they have me illegally evicted 10 or 11 times. This is to
have a chance to assassinate me and my child, since we reported
them for the said fraud (punishable by many years in jail).
ECF No. 7 at 4-5.
Plaintiff also asserts that various police officers “covered up for [the SSA] and refused to
allow [her] to document the theft of [her] last stolen benefit,” “refused to file a police report,” and
“sent their officers to assassinate me.” ECF No. 10 at 5. Plaintiff also sues the CEOs of two
Internet Service Providers because they allegedly “disconnected the Internet so [she] couldn’t call
for help.” Id.
Plaintiff alleges that she and her daughter “were tricked by the Social Security
Administration Staff Members, and the said Department of Social Services, involved in
Racketeering and RICO Violations.” ECF No. 1 at 3. She asserts that she has “been the victim of
Tampering with the Plaintiff of a Federal Lawsuit, with conspiracy and the intention to cause the
said plaintiff harm—a heart attack or an epileptic seizure, followed by a brain hemorrhage—and
prevent her from testifying in federal court (to change the outcome of said lawsuit).” Id. at 4-5.
Plaintiff alleges that Defendants “have been defrauding the United States Government and the Tax
Payers with millions of dollars all this time.” Id. at 5. Because Plaintiff has “report[ed]… the said
racketeering, and her daughter’s, her daughter has been falsely arrested, illegally incarcerated, and
tortured in jail—with the intention of killing her—four times.” Id.
Plaintiff also asserts that Defendants have threatened her with derogatory names over the
Internet, canceled her garbage pickup, and threatened “to falsely arrest, illegally incarcerate, and
assassinate [Plaintiff]’s daughter—while in jail—if they don’t stop reporting the said
racketeering.” Id. at 7. “This is in addition to having [Plaintiff]’s pets (4) slaughtered by a
government-employee’s nephew’s dog.” Id.
Plaintiff requests that the Court “give me back my federal electronic Social Security
Disability/Pension, stop any eviction proceedings against me and/or my daughter, and pay me
$5,000.00 in restitution and punitive damages (from the government employees) and $1,000.00
from my landlord for the same reason.” ECF No. 7 at 5. She also requests that the Court “issue
an Order giving me back my stolen benefits and restraining the defendants from continuing to
conspire against me and cause me and my daughter harm. I also want $10,000 from each Internet
company for restitution and punitive damages.” ECF No. 10 at 5.
The Supreme Court has explained that a complaint “is frivolous where it lacks an arguable
basis either in law or in fact. As the Courts of Appeals have recognized, “§ 1915[e]’s term
‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, but
also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the
Court concludes that Plaintiff’s allegations are exactly the “fanciful factual allegations” the
Supreme Court was referring to, and that this action must be dismissed.
For the reasons stated, the Court finds that Plaintiff’s case cannot proceed and therefore
her pleadings are dismissed as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(i). The Court
declines to permit Plaintiff to amend her pleadings because amendment would be futile. See
Ruffolo, 987 F.2d at 131. Additionally, Plaintiff’s motions (ECF Nos. 4, 6), which make similar
allegations and seek similar relief, are DENIED AS MOOT.
Plaintiff’s in forma pauperis motion (ECF No. 2) is GRANTED, however, her Complaint,
Amended Complaint, and Second Amended Complaint are DISMISSED WITH PREJUDICE
(ECF Nos. 1, 7, 10). Plaintiff’s motions (ECF No. 4, 6) are DENIED AS MOOT.
The Court hereby certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith and that leave to appeal to the Court of Appeals as a poor
person is denied. See Coppedge v. United States, 369 U.S. 438 (1962). Requests to proceed on
appeal as a poor person should be directed on motion to the United States Court of Appeals for the
Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
Dated: November 21, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?