Reid v. Mabus et al

Filing 5

OPINION AND ORDER by Judge Ronald A. White granting 2 Motion for Leave to Proceed in Forma Pauperis; dismissing case as frivolous (case terminated) (neh, Deputy Clerk) Modified on 8/28/2015 to reflect Opinion and Order (dma, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
Jesse Reid, Jr.,
Plaintiff,
v.

Case No. 15-CIV-310-RAW

Ray Mabus, Secretary of the Navy, et al.,
Defendants.
OPINION AND ORDER
Before the court are Plaintiff=s Complaint for Writ of Mandamus [Docket No. 1] and
Motion for Leave to Proceed in Forma Pauperis (AIFP@) [Docket No. 2]. The motion for
IFP is granted. Plaintiff filed this lawsuit against various federal agencies alleging a
violation of his rights. Plaintiff alleges he is being harassed electronically by the use of
synthetic technology and that the signal has been traced to Navy Sea Systems Command in
Washington, D.C. On Page 2 of the Complaint, the following is hand written: “Voice to
skull constantly. Cannot function. I have been chipped without my knowledge or
consent for 42 years.”
The court construes Plaintiff=s allegations liberally as he is pro se. 1 See Haines v.
Kerner, 404 U.S. 519 (1972). Plaintiff=s arguments are Acompletely lacking in legal merit
and patently frivolous.@ Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990).
1 The Complaint is filed by Mr. Reid, with an address of “Hamilton Brown, 600 Grant, US Steel
Tower, Suite 660, Pittsburgh, PA 15219.” It is unclear if Plaintiff is represented by counsel.
This court will consider Plaintiff to be pro se, since there is no attorney bar number listed for
Hamilton Brown.

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Venue
The term “venue” refers “to the geographic specification of the proper court or
courts for the litigation of a civil action that is within the subject-matter jurisdiction of the
district courts in general….” 28 U.S.C. § 1390(a). The court takes judicial notice that
Plaintiff’s address is in Pittsburgh, Pennsylvania. None of the Defendants are located in
this District. Therefore, venue is improper and justifies dismissal.
First to File
The court notes that this action has recently been filed in numerous courts (Northern
and Southern Districts of Ohio, District of Nebraska, District of Arizona, District of
Oregon, District of Montana, Eastern District of Pennsylvania, and District of Alaska).
The Defendants are the same in each case, and the Complaints are almost identical in each
case. Without reviewing every case, the court has determined that the case in Oregon was
filed a few hours prior to this case.
The first-to-file rule is a “well-established doctrine that encourages comity
among federal courts of equal rank.” Zide Sport Shop of Ohio v. Ed Tobergte
Assocs., 16 Fed.Appx. 433 (6th Cir.2001). In determining whether the
first-to-file rule applies, the court should examine the chronology of the
actions, the similarity of the parties involved, and the similarity of the issues
at stake. Versus Tech v. Hillenbrand Indus., No. 04–CV–168, 2004 WL
3457629 (W.D.Mich. Nov. 23, 2004).
The Tenth Circuit applies the first-to-file rule, which “permits a district court
to decline jurisdiction where a complaint raising the same issues against the
same parties has previously been filed in another district court.” Buzas
Baseball, Inc. v. Bd. of Regents of the Univ. of Ga., 189 F.3d 477 (table),
1999 WL 682883, at *2 (10th Cir. Sept. 2, 1999); see Hospah Coal Co. v.
Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982); Cessna Aircraft
Co. v. Brown, 348 F.2d 689, 692 (10th Cir.1965). The parties only need be
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substantially similar for the rule to apply. See Ed Tobergte Assocs. v. Zide
Sport Shop, 83 F.Supp.2d 1197, 1198 (D.Kan.1999); Graphic Tech., Inc. v.
McDonald's Operators Assn., No. 00–2349–GTV, 2000 WL 1920034, at *1
n. 2 (D.Kan. Dec. 21, 2000).
Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 679 F. Supp. 2d 1287,
1296 (D. Kan. 2010). The court finds that venue is not proper in this district, and the “first
to file rule” applies in this matter.
28 U.S.C. ' 1915
Section 1915 of the United States Code, Title 28, states as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
thatB
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C.A. ' 1915(e)(2).
A complaint is frivolous Awhere it lacks an arguable basis either in law or in fact.@
Further, the term frivolous Aembraces not only the inarguable legal conclusion, but also the
fanciful factual allegation.@ Neitzke v. Williams, 490 U.S. 319, 325 (1989). A plaintiff is
not required to make out a perfect case in their complaint. Rather, AIt suffices for him to
state claims that are rationally related to the existing law and the credible factual
allegations.@ Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264 (10th Cir. 1994).
In the instant case, the court finds there is no cognizable claim under the statutes cited by
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Plaintiff.
Sua Sponte Dismissal

ASua sponte dismissals are generally disfavored by the courts.@ Banks v. Vio
Software, 275 Fed.Appx. 800 (10th Circ. 2008). A court shall dismiss a case at any time,
however, if the court determines that the action fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. 28
U.S.C. ' 1915(e)(2)(B)(ii) and (iii).
Indeed, the Tenth Circuit Court of Appeals has stated that a district court is required
to dismiss an IFP claim 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
relief. Trujillo v. Williams, 465 F.3d 1210, 1216 n.5 (10th Cir. 2006).
A 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill v.
Lappin, 630 F.3d 468, 470-71 (“dismissal standard articulated in Iqbal and Twombly
governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and
1915(e)(2)(B)(ii).

“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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
The court must accept all well-pleaded factual allegations as true, but need not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting
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Papasan v. Allain, 478 U.S. 265. 286 ( 1986)). A complaint need not contain “detailed
factual allegations,” but it must, however, provide “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal. 556 U.S. at 678 (citing Twombly,
550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. It does not
suffice if a complaint provides “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
The court may sua sponte dismiss an action pursuant to ' 1915 when Aon the face of
the complaint it clearly appears that the action is frivolous or malicious.@ Hall v. Bellmon,
935 F.2d 1106, 1108 (10th Cir. 1991). AThe term >frivolous= refers to >the inarguable legal
conclusion= and >the fanciful factual allegation.=@ Id. (citation omitted). Further, a Atrial
court may dismiss a claim sua sponte without notice where the claimant cannot possibly
win relief.@ McKinney v. State of Oklahoma, 925 F.2d 363, 364 (10th Cir. 1991).
Conclusion
Plaintiff=s Motion for Leave to Proceed in Forma Pauperis [Docket No. 2] is
granted.
The court finds that venue is not proper in this district, and the “first to file rule”
applies in this matter. The allegations listed in the complaint do not create a claim upon
which this lawsuit can proceed. The court finds that Plaintiff=s action is frivolous, and that

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Plaintiff fails to state a claim on which relief can be granted. This matter is dismissed with
prejudice.
Dated this 27th day of August, 2015.

_________________________________
HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

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