Aigbekaen v. Apple Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAYMOND I. AIGBEKAEN, Case No.: 20cv1603-JAH-LL 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 MOTION TO PROCEED IN FORMA APPLE, INC.; TIMOTHY COOK 15 PAUPERIS (Doc. No. 2); Defendants. 16 (2) DISMISSING PLAINTIFF’S 17 COMPLAINT PURSUANT TO 28 U.S.C. § 1915A(b)(1) (Doc. No. 1); 18 19 (3) DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 20 (Doc. No. 3) 21 22 Plaintiff Raymond I. Aigbekaen (“Plaintiff”) currently incarcerated at FCI Fort Dix, 23 New Jersey, and proceeding pro se, filed a civil complaint, a Motion to Proceed In Forma 24 Pauperis (“IFP”) pursuant to 28 U.S.C. 1915(a), and a Motion to Appoint Counsel. See 25 Doc. Nos. 1, 2, 3. 26 Plaintiff seeks to sue Apple, Inc. and Timothy Cook for their “involvement in a 27 conspiracy with the United States government to continue the WILLIE LYNCH agenda 28 and violate the civil rights of minority citizens and non-citizens of the United States.” See 1 Doc. No. 1. Plaintiff also includes various photos throughout his complaint, and his prayer 2 for relief seeks “compensatory damages in an amount commiserate to the net worth of the 3 richest white man. . . .[and an injunction] enjoining Apple [from] build[ing] a factory in 4 the Ancient Benin City[.]” Id. 5 I. Motion to Proceed IFP 6 A. Standard of Review 7 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 8 Sheriff's Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 9 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 10 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. § 11 1915(a)(3)(b), Bruce v. Samuels, 136 S. Ct. 627, 629 (2016), the Prison Litigation Reform 12 Act (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP: 13 ... if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 14 States that was dismissed on the grounds that it is frivolous, malicious, or fails 15 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 16 17 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 19 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 20 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (under the PLRA, 21 “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from 22 IFP status under the three strikes rule”). The objective of the PLRA is to further “the 23 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. 24 Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed 25 claims applies to claims dismissed both before and after the statute's effective date.” Id. at 26 1311. 27 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 28 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 1 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 2 styles such dismissal as a denial of the prisoner's application to file the action without 3 prepayment of the full filing fee.” O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); 4 see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (noting that when 5 court “review[s] a dismissal to determine whether it counts as a strike, the style of the 6 dismissal or the procedural posture is immaterial. Instead, the central question is whether 7 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’ ”) 8 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013) ). Once a prisoner has 9 accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP 10 civil action or appeal in federal court unless he alleges he is facing “imminent danger of 11 serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051–52 (noting 12 § 1915(g)’s exception for IFP complaints which “make[ ] a plausible allegation that the 13 prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). 14 B. Discussion 15 As a threshold matter, Plaintiff’s complaint does not allege nor contain any 16 “plausible allegations” to suggest he “faced ‘imminent danger of serious physical injury’ 17 at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). The 18 Court has identified at least four dismissals for failure to state a claim. See Aigbekaen v. 19 Harford County Sheriff's Department, No. 1:19-cv-01864 (D. Md. May 19, 2020); 20 Aigbekaen v. Maddox, No. 8:19-cv-01658 (D. Md. Feb. 6, 2020) (ECF No. 5); Aigbekaen 21 v. Barr, No. 8:20-cv-00169 (D. Md. Feb. 6, 2020) (ECF No. 3); Aigbekaen v. Trump, 2020 22 WL 5704919 (D.N.J. Sept. 23, 2020). 23 As such, Plaintiff has more than “three strikes” pursuant to § 1915(g). Accordingly, 24 the Court denies Plaintiff’s motion to proceed IFP. See Cervantes, 493 F.3d at 1055; 25 Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) 26 “does not prevent all prisoners from accessing the courts; it only precludes prisoners with 27 a history of abusing the legal system from continuing to abuse it while enjoying IFP 28 status”). 1 II. Sua Sponte Screening Pursuant to 28 USC § 1915(e)(2)(B) 2 A. Standard of Review 3 When a plaintiff seeks leave to proceed IFP, pursuant to 28 U.S.C. § 1915(a), the 4 Complaint is subject to sua sponte review, and mandatory dismissal, if it is “frivolous, 5 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 6 relief from a defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman 7 v. Tollefson, 135 S. Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court 8 shall dismiss the case at any time if the court determines that… (B) the action or appeal… 9 (ii) fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 10 1127 (9th Cir. 2000) (en banc) (section 1915(e) not only permits, but requires, a district 11 court to dismiss an in forma pauperis complaint that fails to state a claim.). “The standard 12 for determining whether a plaintiff has failed to state a claim upon which relief can be 13 granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 14 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th 15 Cir. 2012). 16 Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 17 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint 18 lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 19 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) 20 authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”). 21 Alternatively, a complaint may be dismissed where it presents a cognizable legal theory 22 yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a 23 plaintiff need not give “detailed factual allegations,” he must plead sufficient facts that, if 24 true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 25 550 U.S. 544, 545 (2007). 26 To survive dismissal, the complaint must contain “a short and plain statement of the 27 claim that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “A claim has facial 28 plausibility when the plaintiff pleads factual content that allows the court to draw the 1 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 4 statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). If a court determines 5 that a complaint fails to state a claim, the court should grant leave to amend unless it 6 determines that the pleading could not possibly be cured by the allegation of other facts. 7 See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). 8 B. Discussion 9 In the instant matter, Plaintiff names Apple Inc. and its CEO, Timothy Cook, as 10 Defendants. Plaintiff’s complaint alleges Defendants violate the Walsh-Healey Act and 11 “conspire[] with the U.S. Government to violate the privacy rights of minorities. . . [by 12 making it] possible for the government to acquire data to be used in the sham prosecution 13 of minorities.” See Doc. No. 1-2 at 5. The remainder of Plaintiff’s complaint appears 14 deluded and are facially irrational. Plaintiff refers to Jesus, invoking spirits, Benin palace 15 chiefs, the 13th Amendment, and Mother Nature. Id. at 9. As such, Plaintiff’s Complaint 16 also demands sua sponte dismissal as frivolous pursuant to 28 U.S.C. § 1915A(b)(1). See 17 Suess v. Obama, 2017 WL 1371289, at *2 (C.D. Cal. Mar. 10, 2017) (dismissing as 18 frivolous complaint alleging conspiracy among President, CIA, and FBI to torment plaintiff 19 over six-year period). Because Plaintiff's claims are frivolous, “there is by definition no 20 merit to the underlying action and so no reason to grant leave to amend.” Lopez v. Smith, 21 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (en banc). 22 III. Motion to Appoint Counsel 23 Finally, Plaintiff requests appoint of counsel because of his “limited legal acumen 24 and also [he] suffer[s] from acute onset mutism.” See Doc. No. 3. Because the underlying 25 claim has been dismissed, the Court DENIES Plaintiff’s motion to appoint counsel. 26 /// 27 /// 28 /// 1 Conclusion and Order 2 For the reasons set forth above, the Court: 3 1. DENIES Plaintiff's Motion to Proceed IFP as barred by 28 U.S.C. § 1915(g); 4 2. DISMISSES this civil action based on Plaintiff's failure to pay the full statutory 5 administrative $400 civil filing fee required by 28 U.S.C. § 1914(a), and as frivolous 6 || pursuant to 28 U.S.C. § 1915A(b)(1); and 7 3. DENIES Plaintiffs Motion to Appoint Counsel. 8 IT ISSO ORDERED. 9 ||DATED: October 26, 2020 11 D JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28