Martin v. NSA Director P. Nekeson ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 LANCE R. MARTIN, Case No.: 20-cv-58-CAB-BGS 10 Plaintiff, ORDER GRANTING APPLICATION 11 v. FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND SUA 12 NSA DIRECTOR P. NEKESON et al., SPONTE DISMISSING COMPLAINT 13 Defendants. 14 15 16 17 On January 8, 2020, Plaintiff, a former prisoner but since released, filed a complaint 18 purporting to allege violations of his constitutional rights. [Doc. No. 1.] The Court reviews 19 Plaintiff’s complaint under 28 U.S.C. § 1915(e), as required when a plaintiff files a motion 20 to proceed in forma pauperis (“IFP”). Under this mandatory screening, the Court finds 21 that Plaintiff’s complaint does not sufficiently state a claim for relief and is frivolous. 22 Accordingly, the Court grants Plaintiff’s IFP motion, [Doc. No. 2], and dismisses 23 Plaintiff’s complaint without leave to amend. 24 I. MOTION TO PROCEED IN FORMA PAUPERIS 25 Plaintiff moves to proceed IFP under 28 U.S.C. § 1915. All parties instituting any 26 civil action, suit, or proceeding in a district court of the United States, except an application 27 for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An 28 action may proceed despite a plaintiff’s failure to prepay the entire fee only if the plaintiff 1 is granted leave to proceed IFP under 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 2 F.3d 1176, 1177 (9th Cir. 1999). All actions sought to be filed IFP under § 1915 must be 3 accompanied by an affidavit, signed by the applicant under penalty of perjury, that includes 4 a statement of all assets which shows inability to pay initial fees or give security. Civ LR 5 3.2.a. 6 Here, Plaintiff’s application demonstrates that Plaintiff lacks the financial resources 7 to pay the filing fees and still afford the necessities of life. See Escobedo v. Applebees, 787 8 F.3d 1226, 1234 (9th Cir. 2015); see also 28 U.S.C. § 1915(a). Accordingly, the Court 9 GRANTS Plaintiff’s IFP motion. 10 Notwithstanding the foregoing, a complaint filed by any person seeking to proceed 11 IFP pursuant to 28 U.S.C. § 1915(a) is subject to mandatory and sua sponte review and 12 dismissal should the Court determine, inter alia, it is frivolous, malicious, or fails to state 13 a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 14 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not 15 limited to prisoners.”). Congress enacted this safeguard because “a litigant whose filing 16 fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic 17 incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. 18 Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 19 (1989)); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) 20 not only permits, but requires a district court to dismiss an in forma pauperis complaint that 21 fails to state a claim.”). 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 25 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must contain “a 26 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 27 R. Civ. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, 28 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 1 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). Detailed 2 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 3 action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, the 4 Court “may dismiss as frivolous complaints reciting bare legal conclusions with no 5 suggestion of supporting facts . . . .” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 6 1984) (internal quotation omitted). 7 II. BACKGROUND 8 According to the Complaint, Plaintiff Lance R. Martin has been incarcerated in 9 various prisons and was most recently released on parole from Richard J. Donovan (“RJD”) 10 in San Diego, California. [Doc. No. 1 at 6.] Plaintiff names as defendants in this case 11 Nancy Pelosi, the Speaker of the House; the National Security Agency, (“NSA”); Paul 12 Nakasone, the Director of the NSA; William Barr, the United States Attorney General; 13 Kamala Harris, the former Attorney General of California; Salvador Hernandez, the 14 Assistant Director of the FBI; Judge Stephanie Sontag of the San Diego County Superior 15 Court; Judge Roger Benitez of this Court; Ralph Diaz, a Correctional Secretary of the 16 California Department of Corrections and Rehabilitation; and Dean, a District Attorney in 17 El Cajon. [Id. at 5– 6.] 18 Plaintiff alleges that defendants are illegally using surveillance equipment by way 19 of a warrantless wiretap of his cellular phone, illegally collecting his emails, messages, and 20 phoneline numbers for four years, constituting an unreasonable search and seizure of his 21 person. [Id. at 6.] At some point prior to his release from RJD, Plaintiff was called into 22 the Institutional Gang Investigators Office where a sergeant asked him if he was a member 23 of the terrorist organization ISIS. [Id.] Plaintiff denied the allegation stating that he has 24 no ties to any middle eastern people whatsoever and poses no threat to the United States of 25 America. [Id.] Due to this interaction, it appears Plaintiff is alleging that all of the named 26 defendants in this case have engaged in some form of surveillance and harassment of 27 Plaintiff. [Id. at 6–7.] Plaintiff alleges, inter alia, that his phone and laptop are interfered 28 with daily and people who Plaintiff calls are being told what to say or how to act towards 1 Plaintiff because he was wrongly placed in the NSA program under false fears of being a 2 home-grown terrorist. [Id.] Plaintiff further alleges that after he was discharged from 3 parole, defendants have continued to electronically monitor him through other agencies. 4 [Id. at 11.] Plaintiff attaches as evidence photographs of police cars, transit police, and 5 amazon prime vans showing up to different locations where Plaintiff is driving or riding 6 the San Diego trolley. [Id.; 17 – 19.] 7 III. DISCUSSION 8 The Complaint purports to assert a claim for an unreasonable search and seizure in 9 violation of Plaintiff’s fourth and fourteenth amendment rights. [Id. at 4.] A preliminary 10 review of Plaintiff’s Complaint shows his suit is subject to sua sponte dismissal pursuant 11 to 28 U.S.C. §1915(e)(2)(B) because it is plainly frivolous and fails to state a claim. 12 A pleading is “factual[ly] frivolous[]” under § 1915 if “the facts alleged rise to the 13 level of the irrational or the wholly incredible, whether or not there are judicially noticeable 14 facts available to contradict them.” Denton, 504 U.S. at 25–26. Plaintiff’s complaint 15 contains irrational and implausible allegations that all of the above-named defendants from 16 wholly different agencies and positions have engaged in some form of illegal surveillance 17 of Plaintiff. Plaintiff bases these allegations largely on his apparent technological issues 18 with his cell phone and laptop, and his unsubstantiated belief that he is being electronically 19 monitored because he continues to see police officers when he is driving, transit officers 20 when he is on public transit, and amazon delivery vans wherever he goes. 21 “[A] complaint, containing as it does both factual allegations and legal conclusions, 22 is frivolous where it lacks an arguable basis either in law or in fact . . . [The] term 23 ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal 24 conclusion, but also the fanciful factual allegation.” Neitzke, 490 U.S. at 325. When 25 determining whether a complaint is frivolous, the court need not accept the allegations as 26 true, but must “pierce the veil of the complaint’s factual allegations,” Id. at 327, to 27 determine whether they are “‘fanciful,’ ‘fantastic,’ [or] ‘delusional,’” Denton, 504 U.S. at 28 33 (quoting Neitzke, 490 U.S. at 328). The Court finds Plaintiff’s complaint both fails to 1 ||state a claim as it consists primarily of Plaintiffs unsubstantiated beliefs with no 2 intelligible factual support and is plainly frivolous because Plaintiff's allegations “rise to 3 || the level of the irrational or the wholly incredible.” Denton, 504 U.S. at 33. Therefore, 4 || Plaintiff's Complaint requires sua sponte dismissal as frivolous pursuant to 28 U.S.C. 5 || $1915(e)(2)(B)G) and without leave to amend. See Lopez, 203 F.3d at 1127 (noting that if 6 ||a claim is classified as frivolous, “there is by definition no merit to the underlying action 7 || and so no reason to grant leave to amend.”’). 8 IV. CONCLUSION 9 Plaintiffs allegations are unintelligible, mostly conclusory, and fail to state a claim 10 is plausible. For the foregoing reasons, it is hereby ordered that Plaintiff's Motion to 11 || Proceed IFP is GRANTED and the Complaint is DISMISSED without leave to amend 12 || as frivolous and for failure to state a claim pursuant to 28 U.S.C. §1915(e)(2)(B). 13 It is SO ORDERED. 14 || Dated: January 13, 2020 15 Y g 16 7 Hon. Cathy Ann Bencivengo United States District Judge 18 19 20 21 22 23 24 25 26 27 28