Rishar v. United States Government et al
Filing
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OPINION and ORDER granting 1 Motion for Leave to Proceed in forma pauperis. This case is DISMISSED. Any request for preliminary injunctive relief is DENIED as moot. The Court hereby certifies that any appeal would not be taken in good faith pursuant to 28 U.S.C. §1915(a)(3). Signed by District Judge J. Garvan Murtha on 5/8/2014. (kak)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JOHN RISHAR,
Plaintiff,
v.
UNITED STATES GOVERNMENT,
et al.,
Defendants.
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Case No. 1:14-cv-81-jgm
OPINION AND ORDER
(Doc. 1)
Pro se plaintiff John Rishar moves to proceed in forma
paurperis against approximately four hundred Defendants,
including the United States Government, state and federal
government agencies, state and federal judges, state and
municipal police authorities, state and federal prisons, private
corporations, health care providers and institutions, and dozens
of other individuals and entities. (Doc. 1-2 at 1-6.)
Rishar
brings his claims pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2671
et seq. (Federal Tort Claims Act), and under state law. (Doc. 1-2
at 3.)
Because the financial affidavit in support of the motion
meets the requirements of 28 U.S.C. § 1915(a), the motion for
leave to proceed in forma pauperis is GRANTED.
reasons set forth below, this case is DISMISSED.
However, for the
Factual Background
Rishar’s 68-page proposed Complaint alleges that starting in
June of 1999, Defendant CIA conspired with Defendants FBI, Secret
Service, US Army, and US Air Force to institute an “Interference
Program” against him.
(Doc. 1-2 at 9-10.)
These actions were
conducted by the “Ground and Satellite Divisions” of the United
States and Canada through “Transpondering Division/Satellite
Division.”
Id. At 9. Rishar is a former attorney who was
admitted to practice law in the State of Michigan.
He alleges that many of the Defendants, in conspiracy with
the CIA, produced or sold water, food, beverages, or medications
contaminated with cyanide or other chemical agents.
Other
Defendants would then cause Rishar to ingest the contaminated
food or beverage, (including soft drinks, juices, bottled water,
cereals, and take-out or fast food meals,) or medication (Prozac,
Ativan, Risperdol, Seroquel, Abilify, Geodon, and Invega.)
Consuming these items allegedly caused Rishar to experience heart
attacks, neurological symptoms, breathing problems, digestive
symptoms, pain, and other extreme side effects.
He alleges the
contaminated items were intentionally “popped” in retaliation.
See e.g., id at 12 (“The Middletown Water Department popped the
water”).
Defendant Michigan State Police refused to investigate
his claims.
Id. at 38.
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Rishar alleges that he was incarcerated at the Dauphin
County Prison in Pennsylvania where he was “popped by bug juice,
milk[,] and all the food and water.” Id. at 22.
Upon his
release, he alleges that he fled to Canada and was detained in
Toronto by Canadian Immigration, where he was “severely tortured
by both Canada’s and USA’s Transpondering/Satellite Divisions. .
. .”
Id. at 24.
Rishar also alleges that he received mental health treatment
at several facilities where he was “popped” or otherwise
mistreated.
He alleges that Defendant Mayview State Hospital,
for example, “committed [interference] and medical malpractice by
slandering [him] and libeling [him] in their charts.”
Id. at 37.
He claims that “[a]ll the allegations of psychosis [are]
unfounded and a complete coverup lie to keep me from making
millions of dollars, because of the baby bee boopers game.”
Id.
Rishar asserts claims against Defendants Judge Judy, Judge
Kleinfelter, Judge Clark, and Judge Cherry (all Pennsylvania
state court judges) for failing to properly advise him of his
rights or to rule in his favor in several state court matters.
Id. at 50-51. He alleges Defendant Chief Judge Reiss of the
District of Vermont improperly dismissed a previous lawsuit
brought against Defendant Rutland Regional Medical Center.
at 61.
Id.
Defendant Judge Rosen of the Eastern District of Michigan
improperly barred him from practicing law before that court.
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Id.
Defendant Judge Duggan, also of the Eastern District of Michigan,
improperly failed to enter a preliminary injunction to protect
him against the secret police.
Id. at 62.
Rishar seeks unspecified damages “in excess of the
jurisdictional limitation.”
Id. at 67.
Discussion
Pro se filings are “to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citations omitted).
However, a district court may
dismiss a case if it determines that the complaint “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.”
28 U.S.C. § 1915(e)(2)(B).
The Supreme Court has held that a complaint “is frivolous
where it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v.
Hernandez, 504 U.S. 25, 33 (1992) (complaint is factually
frivolous where “the facts alleged are clearly baseless, a
category encompassing allegations that are fanciful, fantastic,
and delusional”) (internal citation and quotation marks omitted).
“[A] finding of factual frivolousness is appropriate when the
facts alleged rise to the level of irrational or wholly
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incredible, whether or not there are judicially noticeable facts
available to contradict them.” Denton, 504 U.S. at 33. The
Supreme Court has recognized that frivolousness embraces “not
only the inarguable legal conclusion, but also the fanciful
factual allegation.”
Neitzke, 490 U.S. at 325.
Here, Rishar alleges a broad conspiracy involving hundreds
of Defendants, some of whom he claims attempted to harm and
control him using satellites and transponders or who have planted
poisonous chemical agents in his food.
The court finds Rishar’s
allegations are frivolous and lack any plausible factual support.
On August 28, 2013, Chief Judge Christina Reiss issued an order
dismissing a different Complaint brought by Rishar alleging many
of the same facts against many of the same Defendants named here.
See Rishar v. Rutland Reg’l Med. Ctr., No. 5:13-cv-214, slip op.
at 4 (D.Vt. Aug. 28, 2013).
Some of the Defendants named in the proposed Complaint,
including the United States Government, the Commonwealth of
Pennsylvania, the State of Michigan, the State of Ohio, the
Commonwealth of Massachusetts, the State of New York, the State
of New Jersey, and the Commonwealth of Virginia are all immune
from suit under the doctrine of sovereign immunity. See United
States v. Mitchell, 463 U.S. 206, 212 (1983) (United States may
not be sued without its consent) and Edelman v. Jordan, 415 U.S.
651, 663 (1974) (Eleventh Amendment sovereign immunity bars suits
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against states by its own citizens or citizens of another state);
see also Rishar v. United States Government, No. 1:14-cv-00032,
slip op. at 2 (D.Vt. March 10, 2014) (dismissing all claims
against the United States Government, Pennsylvania, Michigan,
Ohio, Massachusetts, New York, New Jersey, Virginia, and
Vermont).
Furthermore, all of the judges named in this matter are
entitled to absolute immunity because Rishar’s claims against
them are related to the exercise of their judicial functions.
See Mireles v. Waco, 502 U.S. 9, 11 (1991).
Judicial immunity
applies even when the judge is accused of acting maliciously or
corruptly.
Imbler v. Pachtman, 424 U.S. 409, 419 n.12 (1976)
(quoting Pierson v. Ray, 386 U.S. 547, 553-54 (1967)).
Judicial
immunity also applies “‘however erroneous the act may have been,
and however injurious in its consequences it may have proved to
the plaintiff.’” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994)
(quoting Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)).
Judicial immunity does not apply only where the alleged conduct
is non-judicial in nature or where the defendant took judicial
action “in complete absence of all jurisdiction.”
U.S. at 11-12.
Mireles, 502
Rishar does not allege facts that would sustain
either exception here. Therefore, Defendants Judge Judy, Judge
Kleinfelter, Judge Clark, Judge Cherry, Judge Smith, Judge Rosen,
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Judge Reiss, Judge Duggan, and Judge King are immune from suit
with respect to Rishar’s claims.
For all of these reasons, the Court concludes that Rishar’s
proposed Complaint is frivolous, fails to state a claim on which
relief can be granted, and seeks monetary relief against
defendants who are immune from such relief.
proposed Complaint is DISMISSED.
Accordingly, the
28 U.S.C. § 1915(e)(2)(B).
District courts generally should not dismiss a pro se
complaint without granting leave to amend. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
However, the court
finds that granting leave to amend the proposed Complaint would
be futile. See id. (“The problem with [plaintiff’s] causes of
action is substantive; better pleading will not cure it.
Repleading would thus be futile.
Such a futile request to
replead should be denied.”)
CONCLUSION
For the reasons set forth above, upon conducting the review
required under 28 U.S.C. § 1915(a)(1) and 1915(e)(2)(B), Rishar’s
motion to proceed in forma pauperis (Doc. 1) is GRANTED, and this
case is DISMISSED. Any request for preliminary injunctive relief
is DENIED as moot.
The Court hereby certifies that any appeal
would not be taken in good faith pursuant to 28 U.S.C. §
1915(a)(3).
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SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 8th
day of May, 2014.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
U.S. District Judge
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