Flores v. US Attorney General

Filing 2

REPORT AND RECOMMENDATION1 THAT: (1) PLAINTIFF'S PRO SE COMPLAINT BE DISMISSED; AND (2) THIS CASE BE CLOSED re 1 MOTION for Leave to Proceed in forma pauperis filed by Eric Flores. Objections to R&R due by 2/28/2014. Signed by Magistrate Judge Michael J Newman on 02/11/14. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ERIC FLORES,
Plaintiff,

Case No.: 3:14-CV-037

vs.
UNITED STATES
ATTORNEY GENERAL, et al.,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
REPORT AND RECOMMENDATION 1 THAT: (1) PLAINTIFF’S PRO SE
COMPLAINT BE DISMISSED; AND (2) THIS CASE BE CLOSED
____________________________________________________________________________
This matter is before the Court for a sua sponte review of pro se Plaintiff’s complaint
pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff filed a motion for leave to proceed in forma
pauperis (“IFP”) on February 4, 2014. For good cause shown, Plaintiff’s motion for leave to
proceed IFP is GRANTED.
The Court may dismiss Plaintiff’s complaint upon finding his claims: (1) are frivolous or
malicious; (2) fail to state a claim upon which relief may be granted; or (3) seek monetary relief
from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).

It is

appropriate for the Court to conduct this review sua sponte prior to issuance of process “so as to
spare prospective defendants the inconvenience and expense of answering such complaints.”
Neitzke v. Williams, 490 U.S. 319, 324 (1989).

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

I.
Pro se Plaintiff, a Texas resident, alleges that multiple unnamed federal government
employees have directed genetic code-altering satellite transmissions from outer space at him
and members of his family. He also seeks class certification, with himself as the representative.
Doc. 1-2 at PageID 7. Plaintiff alleges:
[I]t is necessary for the court to enter an order issu[]ing directives for the United
States Attorney General to show cause why its agents, officer[s], employees, or
agencies are using advanced technology with a direct signal to the satellite in
outerspace that has the capability of calculat[]ing a genetic code to cause the
petitioner and his immediate relatives severe physical and mental pain for long
durations exceeding calendar years which was equivalent in intensity to organ
failure, impairment of body functions, and death.
Id. at PageID 14. Plaintiff claims that the acts of Defendants have caused harm to his family
members, including, among other things: compelling Flores’s mother to use cocaine, crash her
car, develop “black and red bubbled abrasions” on her body, and suffer a body temperature of
over 110°. Id. at PageID 17-22. The same or similar iterations are repeated throughout the 100plus page complaint.
Since 2010, Plaintiff has filed dozens of lawsuits throughout the country, alleging
substantially identical claims. 2 The Court takes judicial notice of Plaintiff’s filings in other
Courts. The United States Supreme Court, as a result of Plaintiff’s abusive litigation tactics
there, has restricted Plaintiff’s ability to file civil matters in that court. See Flores v. Holder, __
U.S. __, 132 S.Ct. 2397 (2012) (denying leave to proceed IFP and denying petition for a writ of
certiorari). More than fifty Courts around the country have uniformly dismissed Plaintiff’s

2

See, e.g., Flores v. U.S. Att’y Gen., No. 13-CV-393, 2013 WL 4663053, at *1 (D. Haw. Aug. 29,
2013); Flores v. U.S. Att’y Gen., No. 6:13-CV-0167, 2013 WL 1786392, at *1 (D.S.C. Mar. 25, 2013),
adopted by 2013 WL 1786360 (D.S.C. Apr. 25, 2013); Flores v. U.S. Att’y Gen., No. 5:13-CV-33, 2013
WL 969057, at *1 (D. Vt. Mar. 12, 2013); Flores v. U.S., No. 11-CV-110, 2011 WL 1457142, at *1 (Fed.
Cl. Apr. 8, 2011).
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complaints as frivolous.

See, e.g., Flores v. U.S. Att’y Gen., No. 2:13-CV-53, 2013 WL

1122719, at *2 (D. Me. Feb. 26, 2013) (recommending that the Court dismiss the nearly identical
complaint as that filed in this case), adopted by 2013 WL 1122635 (D. Me. Mar. 18, 2013). As
described by a District Court order dismissing a nearly-identical complaint in 2012:
Flores has filed a dozen or more complaints making similar allegations in his
home district [the Western District of Texas] and [other districts], all of which
have been dismissed, and filing restrictions have been imposed upon him. In an
effort to avoid those restrictions, Flores has recently filed several identical
complaints far from home in [C]ourts unfamiliar with his litigation history.
Flores v. U.S. Att’y Gen., No. 12-CV-227, __ WL __ (E.D. Ky. Nov. 16, 2012) (internal citation
omitted).

Finally, Plaintiff’s complaint only identifies Defendants “whom reside in the

geographic location of Cleveland[,] Ohio.” Doc. 1-2 at PageID 23. Plaintiff’s complaint is
devoid of any allegations involving conduct within this District.
II.
A complaint should be dismissed as frivolous if it lacks an arguable basis in law or fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A complaint has no
arguable factual basis when its allegations are “fantastic or delusional,” and no arguable legal
basis when it presents “indisputably meritless” legal theories -- for example, when the defendant
is immune from suit, or when the plaintiff claims a violation of a legal interest which clearly
does not exist. Neitzke, 490 U.S. at 327-28; Brown v. Bargery, 207 F.3d 863, 866 (6th Cir.
2000).
Courts may also dismiss a complaint sua sponte for failure to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). While pro se pleadings are “to be liberally
construed” and “held to less stringent standards than formal pleadings drafted by lawyers,”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), pro se plaintiffs must still satisfy basic

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pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010) (applying the Iqbal and Twombly dismissal standards to reviews
under § 1915(e)(2)(B)(ii)).
III.
Having reviewed the complaint, the Court finds that the factual allegations contained
therein are “irrational, baseless, and wholly incredible.” Flores, 2013 WL 3190573, at *2. The
complaint alleges that unnamed federal employees, acting on behalf of foreign diplomats, have
directed satellite transmissions at Plaintiff and members of his family. Its contents are clearly
frivolous and the complaint fails to state a claim upon which relief can be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii); Denton, 504 U.S. at 32-33 (“[A] finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,
whether or not there are judicially noticeable facts available to contradict them.”).
Moreover, the complaint does not differ from those uniformly dismissed with prejudice
by Federal District Courts across the country. See Flores, 2013 WL 969057, at *2 (citing and
quoting from several cases all dismissing the same or similar allegations). This Court, thus, joins
the “long list of jurisdictions that have screened this or similar complaints filed by [Plaintiff] and
concluded that they contain ‘the hallucinations of a troubled man.’” Flores, 2013 WL 1122719,
at *2 (citation omitted).

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Finally, Plaintiff alleges that the Defendants referenced reside in Cleveland, Ohio, and
Plaintiff’s complaint establishes that the alleged incidents also occurred there. Nowhere in his
complaint does Plaintiff provide any connection between his case and the Southern District of
Ohio. Venue in this Court, even if Plaintiff’s claims were not frivolous and baseless, is therefore
not proper. See 28 U.S.C. § 1391 (venue is proper in the judicial district where any defendants
reside or in which the claims arose).
IV.
For the reasons stated herein, and having conducted the review required under 28 U.S.C.
§ 1915(e)(2)(B), the Court RECOMMENDS that:
1.

Plaintiff’s complaint be DISMISSED; and

2.

This case be CLOSED.
s/ Michael J. Newman
United States Magistrate Judge

February 11, 2014

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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