Flores v. United States Attorney General et al

Filing 4

ORDER Dismissing Case. Signed by Chief Judge Jeffrey L. Viken on 6/10/15. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
ERIC FLORES,

CIV. 15-5026-JLV
CIV. 15-5028-JLV

Plaintiff,
vs.

ORDER

UNITED STATES ATTORNEY
GENERAL and FEDERAL BUREAU OF
INVESTIGATION,
Defendants.
INTRODUCTION
Plaintiff, Eric Flores, appearing pro se, filed a motion for leave to proceed in
forma pauperis and a complaint in which he purports to act as a representative
party in a class action suit on behalf of “mexican american citizens.” (CIV.
15-5026, Dockets 1 & 3; CIV. 15-5028, Dockets 1 & 3). Included in Mr. Flores’
second case in this district, CIV. 15-5028, is a motion to the multidistrict
litigation panel requesting to transfer the case to the United States District Court
for the District of Columbia. (Civ. 15-5028, Docket 4-1).1
DISCUSSION
Mr. Flores’ request for class certification is denied. A pro se litigant may
bring his own claims in federal court but he may not assert the claims of others

1The

court’s review of Mr. Flores’ complaint in CIV. 15-5026 and CIV.
15-5028 reveals the complaints are virtually identical. Due to the similarity of
the complaints and because Mr. Flores’ motion to transfer appears in CIV.
15-5028, all further references to the court’s online docket refer to CIV. 15-5028
unless specifically noted otherwise.

as a non-attorney. See 28 U.S.C. § 1654. “[A] pro se litigant, especially one
untrained in law, cannot fairly and adequately protect the interests of the other
class members.” Smith v. LeBlanc, No. Civ. 02-4100 ADMRLE, 2003 WL
23101806, at *2 (D. Minn. Dec. 30, 2003); see also Ziegler v. State of Michigan,
90 F. App’x 808, 810 (6th Cir. 2004) (citing Fymbo v. State Farm Fire & Cas. Co.,
213 F.3d 1320, 1321 (10th Cir. 2000) (“[N]on- attorneys proceeding pro se
cannot adequately represent a class.”); Johns v. County of San Diego, 114 F.3d
874, 876 (9th Cir. 1997) (finding a non-attorney may appear pro se on his own
behalf but may not represent others); 7A Wright, Miller & Kane, Federal Practice
and Procedure: Civ. 3d § 1769.1 (“[C]lass representatives cannot appear pro se.”).
The court finds Mr. Flores is the sole plaintiff in this case and is proceeding pro
se.
“[P]ro se complaints are to be construed liberally . . . .” Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004) (referencing Estelle v. Gamble, 429 U.S. 97,
106 (1976). “A pro se [complaint] should be ‘interpreted liberally and . . . should
be construed to encompass any allegation stating federal relief.’ ” Bracken v.
Dormire, 247 F.3d 699, 704 (8th Cir. 2001) (citing White v. Wyrick, 530 F.2d
818, 819 (8th Cir. 1976)). “Although pro se complaints are to be liberally
construed, the complaint must allege specific facts sufficient to state a claim.”
Thrash v. McDaniel, No. 4:13-cv-00732-KGB, 2014 WL 2462888, at *1 (E.D. Ark.
June 2, 2014), aff’d, 578 F. App’x 619 (8th Cir. 2014) (citing Martin v. Sargent,
780 F.2d 1334, 1337 (8th Cir. 1985)).
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In light of Mr. Flores’ motion to proceed in forma pauperis (Docket 3), his
complaint is analyzed under the screening procedures set forth in 28 U.S.C.
§ 1915(e)(2). Section 1915(e)(2) provides:
Notwithstanding any filing fee . . . the court shall dismiss the case at
any time if the court determines that—
...
(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. § 1915(e)(2).
Subsection (e)(2) allows the court sua sponte to review a complaint filed
with an in forma pauperis application. The court is required to screen a pro se
complaint as soon as practicable and to dismiss those which are frivolous or fail
to state a claim for relief. “[A] complaint, containing as it does both factual
allegations and legal conclusions, is frivolous where it lacks an arguable basis
either in law or in fact. . . . [The] 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). “[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.” Denton v. Hernandez, 504 U.S. 25, 33
(1992).

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Mr. Flores characterizes his claims as:
(i)

Whether governmental interference with a persons [sic]
marriage resulting in separation of that marriage can be
constituted [sic] as a constitutional deprivation of the first
amendment right to free exercise of religious belief under the
domestic legal pretext.

(ii)

Whether governmental interference with a persons [sic]
communication to the state and federal law enforcement
agencies so as to prevent an investigation of a crime
committed against that person can be constituted [sic] as a
constitutional deprivation of the first amendment right to
freedom of speech.

(Docket 1 at p. 4).
The court’s review of Mr. Flores’ 64-page complaint reveals that his
allegations center on the interactions he had with “an organized group of
executive employees of the federal government,” who directed genetic-code
altering satellite transmissions from outer space at Mexican-Americans, namely
he and his family members. See, e.g., id. at 8, 14,15, 22, 24, 26, 30, 36, 45.
The court includes one example of Mr. Flores’ allegations:
The fact that the organized group of executive employees of the
federal government used advanced technology to take physical
control of the petitioners grandfather [sic] mental state of mind to
compel him into an act of dures [sic] by a calculated procedure to
have sexual intercourse without his effective and consent or
awareness with another female person other than his wife Celia
Flores the mother of all his children constitutes unjustified
governmental interference in his first amendment right to free
exercise of religious belief to not commit adultery by having sex with
another female person other than his wife the mother of all his
children.
Id. at 22.

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The court finds Mr. Flores’ claims are frivolous, fanciful and delusional
under 28 U.S.C. § 1915(e)(2)(B)(i) and must be dismissed. Mr. Flores’
complaint must also be dismissed for improper venue under Fed. R. Civ. P.
12(b)(3) as the alleged incidents occurred in Texas, Mr. Flores resides in
Texas, the alleged acts of the federal government officials are alleged to have
occurred in Texas, and, contrary to Mr. Flores’ boilerplate assertions (Docket
1 at p. 5), no facts have been alleged demonstrating any connection with the
District of South Dakota.
The court takes judicial notice of the vast number of cases in which Mr.
Flores filed this same or a similar complaint in other jurisdictions. Those
pleadings were summarily dismissed as frivolous or failing to state a claim
upon which relief can be granted. On February 4, 2014, Judge Johnson of
the District of Wyoming determined:
[I]t is clear that Eric Flores can be characterized not only as a
frequent filer but also as a repeated abuser of the judicial system. He
has been especially problematic in the United Stated District Court
for the District of Texas where more than 30 cases list him as a
plaintiff, some filed as recently as 2014. He has filed cases in
nearly every United States District Court across the country; this
Court’s further review of a PACER search discloses in excess of 200
cases filed nationwide naming Eric Flores as plaintiff. There is little
that distinguishes [one] case[] . . . from the other.”
Flores v. U.S. Attorney Gen., 2:13-cv-00166-ABJ, Docket 3 at p. 4 (Dist. Wyo.
Feb. 4, 2014).
More recently, Magistrate Judge John Johnston of the District of
Montana found “[i]n April 2015 alone, no fewer than 28 separate federal
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courts have been burdened by Mr. Flores’[] almost identical petitions.”
Flores v. United States Attorney Gen. & Fed. Bureau of Investigation,
6:15-cv-00032-DLC, Docket 5 at p. 3 (Dist. Mont. Apr. 27, 2015). This
court’s review of the PACER system confirms the same. Mr. Flores has a
lengthy history of frivolous and vexatious filings, see, e.g., Flores v. United
States Attorney Gen., et al., No. 1:15-CV-55-SNLJ (Docket 3) (E.D. Mo. Apr.
17, 2015) (collecting cases), and he has filed two virtually identical complaints
in this district within a seven-day period. Compare Flores, CIV. 5-5026-JLV,
Docket 1 (filed on April 9, 2015), with Flores, CIV. 15-5028, Docket 1 (filed on
April 16, 2015).
ORDER
Accordingly, it is
ORDERED that, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), Mr. Flores’
complaints (CIV. 15-5026, Docket 1; and CIV. 15-5028, Docket 1) are
frivolous and are dismissed with prejudice.
IT IS FURTHER ORDERED that Mr. Flores’ motions to proceed in forma
pauperis (CIV. 15-5026, Docket 3; and CIV. 15-5028, Docket 3) are denied as
moot. The court certifies that an appeal in forma pauperis would not be
taken in good faith for the reasons set forth in the opinion. See 28 U.S.C.
§ 1915(a)(3).
IT IS FURTHER ORDERED that the clerk of court is instructed that any
future filings by Eric Flores must first be approved by a district judge. The
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district judge will review the pleading and determine whether the pleading will
be allowed.
Dated June 10, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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