Kohut v. National Security Agency (NSA) ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TYSON M. KOHUT, Case No.: 20-CV-1733 TWR (RBB) 12 Plaintiff, ORDER (1) GRANTING MOTION 13 v. TO PROCEED IN FORMA PAUPERIS, AND (2) DISMISSING 14 NATIONAL SECURITY AGENCY WITHOUT PREJUDICE (NSA); DEPARTMENT OF JUSTICE; 15 COMPLAINT FEDERAL BUREAU OF 16 INVESTIGATION; DEPARTMENT OF (ECF Nos. 1, 2) ENERGY; and DHS, 17 Defendants. 18 19 Presently before the Court is Plaintiff’s Motion for Leave to Proceed in forma 20 pauperis (“Motion,” ECF No. 2). On September 30, 2020, Plaintiff, proceeding pro se, 21 filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging human experimentation 22 and violation of Plaintiff’s constitutional rights under the First, Fourth, Fifth, and the 23 Fourteenth Amendments. (See generally ECF No. 1 (“Compl.”).) 24 MOTIONS TO PROCEED IN FORMA PAUPERIS 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for a writ of habeas corpus, must pay filing and 27 28 1 administration fees totaling $400. 28 U.S.C. § 1914(a). A court may, however, in its 2 discretion, allow a plaintiff to proceed without paying these fees if the plaintiff seeks leave 3 to proceed IFP by submitting an affidavit demonstrating the fees impose financial hardship. 4 See 28 U.S.C. § 1915(a); Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Although 5 the statute does not specify the qualifications for proceeding IFP, the plaintiff’s affidavit 6 must allege poverty with some particularity. Escobeda, 787 F.3d at 1234. Granting a 7 plaintiff leave to proceed IFP may be proper, for example, when the affidavit demonstrates 8 that paying court costs will result in a plaintiff’s inability to afford the “necessities of life.” 9 Id. The affidavit, however, need not demonstrate that the plaintiff is destitute. Id. 10 Plaintiff has no monthly income, has $300 in savings and $8000 in assets, but his 11 monthly expenses exceed around $800. (See generally Mot.) The Court concludes that 12 Plaintiff’s application demonstrates he is unable to pay the requisite fees and costs. 13 Accordingly, the Court GRANTS the Motion. 14 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 15 I. Standard of Review 16 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 17 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 18 may be granted,” or “seeks monetary relief against a defendant who is immune from relief.” 19 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 20 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 21 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) 22 “not only permits but requires a district court to dismiss an in forma pauperis complaint 23 that fails to state a claim”). 24 As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2) 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 28 June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed 1 mandates that the court reviewing an action filed pursuant to the IFP provisions of section 2 1915 make and rule on its own motion to dismiss before directing the Marshal to effect 3 service pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); 4 Navarette v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 5 (S.D. Cal. Jan. 9, 2013). 6 All complaints must contain a “short and plain statement of the claim showing that 7 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 8 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 9 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 10 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 11 complaint states a plausible claim is context-specific, requiring the reviewing court to draw 12 on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550 13 U.S. at 556). Courts have a duty to construe a pro se litigant’s pleadings liberally. See 14 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court 15 should grant leave to amend if it appears “at all possible that the plaintiff can correct the 16 defect,” unless the court determines that “the pleading could not possibly be cured by the 17 allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en 18 banc) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica 19 Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). 20 III. Analysis 21 Plaintiff does not provide short and plain statements of factual allegations showing 22 that he is entitled to relief. Plaintiff generally alleges that there is a federal investigation, 23 a “plane flying at low altitude[s] over [Plaintiff],” stalking, drones at night, and people 24 around him shining light causing him injuries. (See Compl. at 6). These facts are 25 insufficient to meet the pleading requirement under Rule 8(a)(2). Plaintiff must provide 26 more facts underlying his claims. See Sanchez v. Riverside Cty. Code Enf't Agency, No. 27 EDCV 15-2493 SJO(JC), 2016 WL 6810798, at *3 (C.D. Cal. Oct. 19, 2016) (holding a 28 complaint asserting claims under Section 1983 should be dismissed for failure to allege 1 claim against any specific individual with the simplicity, conciseness, and clarity 2 ||required by Rule 8); McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (affirming a 3 ||dismissal under Rule 8 and finding that a district court may dismiss an action for 4 ||noncompliance with Rule 8 if it cannot determine who is being sued, for what relief, and 5 ||on what theory). 6 CONCLUSION 7 In light of the foregoing, the Court: 8 1. GRANTS Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 9 || (ECF No. 2); and 10 2. DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint (ECF No. 1). 11 || Plaintiff MAY FILE an amended complaint on or before thirty (30) days from the date 12 which this Order is electronically docketed. Should Plaintiff fail to file an amended 13 || complaint within the time provided, the Court may enter a final order dismissing without 14 || prejudice this civil action for failure to prosecute. 15 IT IS SO ORDERED. 16 Dated: October 30, 2020 : Tan \Qbn— □ Honorable Todd W. Robinson 19 United States District Court 20 21 22 23 24 25 26 27 28