Shafirovich v. Trump ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARKADY SHAFIROVICH, No. 1:20-cv-01343-DAD-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. COMPLAINT BE DISMISSED WITHOUT LEAVE TO AMEND AS FRIVOLOUS 14 DONALD JOHN TRUMP, et al., (ECF NO. 1) 15 Defendants. TWENTY-ONE DEADLINE 16 17 Plaintiff Arkady Shafirovich (“Plaintiff”) is proceeding pro se and in forma pauperis in 18 this action. Plaintiff filed the Complaint commencing this action on September 21, 2020. (ECF 19 No. 1). The Complaint brings claims alleging that he is subject to electromagnetic radiation. The 20 Court finds that the Complaint is frivolous and recommends dismissing the complaint without 21 leave to amend. 22 I. SCREENING REQUIREMENT 23 As Plaintiff is proceeding in forma pauperis, the Court may screen the complaint under 28 24 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 25 the court shall dismiss the case at any time if the court determines that the action or appeal fails to 26 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 27 A complaint is required to contain “a short and plain statement of the claim showing that 28 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 1 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 4 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 5 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 6 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 7 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 8 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 9 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 10 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 11 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 12 pro se complaints should continue to be liberally construed after Iqbal). 13 II. ALLEGATIONS IN THE COMPLAINT 14 Plaintiff’s “Statement of Claim” reads as follows: 15 The plaintiff is a so called Targeted Individual. The perpetrator [these are the 16 defendants numbered 1 thru 6] installed chips into plaintiff’s body and direct electromagnetic radiation (EMR) at him. Due to the chips plaintiff feels EMR 17 and other people around him don’t. 18 With this EMR the perpetrators made plaintiff blind, deaf, broke his spine, gave him cancer, deep vein thrombosis and many other diseases. 19 20 The perpetrator apply pressure to all organizations that could be helpful to plaintiff including defendants 7, 8 and 9. For example, GBLA interviewed the 21 plaintiff for several hours preparing a case against the perpetrators. All of a sudden they stopped and stated that they would help me with any case except 22 against the perpetrators. 23 Another example. County Health Departments are obligated to establish a 24 healthful environment. Every such department used to have a spectrum analyzer to detect and measure the EMR. But when the perpetrators started 25 torturing people that piece of equipment disappeared from every county and then from the state as well. 26 With respect to Sheriff the plaintiff does not know what kind of benefits he 27 gets from those Federal Agencies. But the Sheriff does not provide any help to 28 the plaintiff. Despite numerous reports of EMR, laser burning, theft and 1 vandalism those reports never reached detectives. But the sheriff actively tried to prove that the plaintiff is crazy. 2 It must be mentioned that the perpetrators recruited several neighbors to help 3 perpetrators to conduct their activities. 4 Besides EMR and laser burning the perpetrators do a lot of other nasty things. 5 They control my phone and mail communications, they disconnect, intercept, etc. They constantly sit in my computer and remove the needed files. I am 6 under 24/7 surveillance. My rights are violated every second. 7 (brackets in original). 8 Plaintiff names the following Defendants: 9 1) Donald John Trump, President of the United States 10 2) Paul M. Nakasone, Director, National Security Agency 11 3) Gina Cheri Walker Haspel, Director, Central Intelligence Agency 12 4) Christopher A. Wray, Director, Federal Bureau of Investigations 13 5) Chad F. Wolf, Acting Secretary, Department of Homeland Security 14 6) John Ratcliffe, Acting Secretary, Department of Homeland Security 15 7) Sandra Shewry, Acting Director, California Department of Health 16 8) Matthew Constatine, Director, Kern County Public Health Department 17 9) Estela Casas, Executive Director, Greater Bakersfield Legal Assistance 18 10) Donny Youngblood, Kern County Sheriff 19 III. APPLICATION TO PLAINTIFF’S COMPLAINT 20 A complaint will be considered frivolous, and therefore subject to dismissal under § 21 1915(e)(2)(B), “where it lacks an arguable basis either in law or in fact.” Nietzke v. Williams, 490 22 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32–33 (1992). A federal court 23 cannot properly sua sponte dismiss an action commenced in forma pauperis if the facts alleged in 24 the complaint are merely “unlikely.” Denton, 504 U.S. at 33. However, a complaint may be 25 properly dismissed sua sponte if the allegations are found to be “fanciful,” “fantastic,” or 26 “delusional,” or if they “rise to the level of the irrational or the wholly incredible.” Id. at 32–33. If 27 a case is classified as frivolous, “there is, by definition, no merit to the underlying action and so 28 no reason to grant leave to amend.” Lopez v. Smith, 203 F.3d 1122, 1127 n. 8 (9th Cir. 2000). 1 Plaintiff’s complaint is fanciful and fantastic, rather than unlikely. It alleges that a variety 2 of federal government agents placed a chip in Plaintiff’s body and direct electromagnetic 3 radiation at him. Plaintiff’s requested relief includes an order that “stop[s] the perpetrators to use 4 laser burning against plaintiff[.]” (ECF No. 1 at 9). Although in some cases it may be difficult to 5 judge whether a plaintiff’s factual allegations are truly “fanciful,” “fantastic,” or “delusional” as 6 opposed to merely “unlikely,” this is not such a case. See Denton, 504 U.S. at 33. These 7 allegations “rise[ ] to the level of irrational or the wholly incredible.” Id. See, Sameer v. Khera, 8 No. 1:17-cv-01748-DAD-EPG, 2018 WL 6338729, at *2 (E.D. Cal. Dec. 5, 2018), appeal 9 dismissed as frivolous, No. 19-15011, 2019 WL 7425404 (9th Cir. Aug. 27, 2019) (dismissing the 10 case with prejudice for lack of subject matter jurisdiction as “the only appropriate response” to 11 “fanciful allegations” in complaint that “alleges the existence of a vast conspiracy bent on 12 plaintiff’s destruction”); McGinnis v. Freudenthal, 426 Fed. App’x 625, 628–29 (10th Cir.2011) 13 (upholding dismissal of frivolous complaint alleging plaintiff was subjected 14 to electromagnetic torture); Ezike v. Na. R.R. Passenger Corp., 2009 WL 247838, at *1–3 (7th 15 Cir. Feb.3, 2009) (remanding for dismissal of complaint alleging that plaintiff was the victim of a 16 conspiracy involving various employers, the teamsters, people of Indian descent, AMTRAK 17 police and armed secret agents); Mendes v. United States, 88 Fed. Cl. 759, 760–62 18 (Fed.Cl.), appeal dismissed, 375 Fed. App’x 4 (Fed.Cir.2009) (upholding dismissal of frivolous 19 complaint alleging that “zealot, fanatical women” employed by the FBI and CIA used “laser 20 beam technology” against plaintiff); Ayres v. Obama, 2013 WL 5754953, at *2 (D.Hawai’i 21 Oct.22, 2013) (allegations that FBI implanted biochips in plaintiff and her family to turn them 22 into “a living vegetable or a New World Order slave” were “so ‘fantastic’ and ‘fanciful’ as to be 23 clearly baseless”); Bivolarevic v. U.S. CIA, 2010 WL 890147, at *1–2 (N.D.Cal. Mar.8, 2010) 24 (court lacked jurisdiction over claims that CIA subjected plaintiff to “voice to skull technology” 25 as a “mind control weapon”); Strode v. Dep’t of Defense, 2004 WL 1572655, at *1–2 (W.D.N.Y. 26 June 2, 2004) (dismissing paid complaint which alleged that government agents transmitted from 27 their bodies “electomagnetic extremely low frequency radio energy from master satellites”); 28 O’Brien v. United States Dep’t of Justice, 927 F.Supp. 382, 384–85 (D.Ariz. 1995), aff’d, 76 F.3d 1 387 (9th Cir. 1996) (unpublished) (plaintiff alleged that various defendants including the United 2 States Department of Justice, Ted Kennedy, Andy Williams, Johnny Mathis, Janet Reno, Neil 3 Diamond, Nancy Reagan, the Phoenix Suns, Charles Barkley, the Arizona governor, the Arizona 4 attorney general, and National Basketball Association Commissioner David Stern had assaulted 5 the plaintiff using electronic and satellite equipment, contaminated the plaintiff with germs, and 6 conspired to dictate whom she should marry; court dismissed the action for lack of subject matter 7 jurisdiction because the allegations were “so bizarre and delusional that they [were] wholly 8 insubstantial”); Doran v. McGinnis, 158 F.R.D. 383, 387–89 (E.D.Mich.1994) (dismissing paid 9 complaint as frivolous, where plaintiff alleged prison officials implanted “telepathic mind control 10 device” in his brain to control his mind and bodily functions). 11 Under the authority above, the Court finds Plaintiff’s complaint is frivolous and 12 recommends dismissal. Because a frivolous complaint cannot be cured, the Court recommends 13 denying leave to amend. 14 IV. RECOMMENDATION AND ORDER 15 The Court has screened Plaintiff’s first amended complaint and finds that it is frivolous. 16 Based on the foregoing, it is HEREBY RECOMMENDED that: 17 1. Plaintiff’s complaint be dismissed with prejudice without leave to amend; and 18 2. The Clerk of Court be directed to close this case. 19 These findings and recommendations will be submitted to the United States district judge 20 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one 21 (21) days after being served with these findings and recommendations, Plaintiff may file written 22 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendations.” 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ wOAOe UVM EOTOPAE NSMIU eYeN 1 Plaintiff is advised that failure to file objections within the specified time may result in the 2 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 3 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. Dated: _ September 30, 2020 [Jee hey □□ 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 &K