The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS,
AND ORDER SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO
STATE A CLAIM
On December 12, 2005, Plaintiff, proceeding pro se, filed a
complaint and a motion to proceed in forma pauperis. In his
complaint, Plaintiff alleges he is being harassed, and treated
unfairly and inhumanely by students, faculty and employees at San
Diego Mesa College. Complaint at 1.
All parties instituting any civil action, suit or proceeding in
a district court of the United States, except an application for
writ of habeas corpus, must pay a filing fee of $250. See
28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's
failure to prepay the entire fee only if the plaintiff is granted
leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th
Notwithstanding payment of any filing fee or portion thereof, a
complaint filed by any person seeking to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a
mandatory and sua sponte review and dismissal by the court to
the extent it is "frivolous, malicious, failing to state a claim
upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief."
28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th
Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are
not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc). 28 U.S.C. § 1915(e)(2)
mandates that the Court reviewing a complaint filed pursuant to
the in forma pauperis provisions of Section 1915 make and rule
on its own motion to dismiss before directing that the complaint
be served by the U.S. Marshal pursuant to Fed.R.Civ.P.
4(c)(2). Lopez, 203 F.3d at 1127.
A complaint will be considered frivolous, and therefore subject
to dismissal under Section 1915(e)(2)(B), "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, 32-33 (1992). The Supreme Court, however, has held that
a federal court cannot properly sua sponte dismiss an action
commenced by an in forma pauperis applicant if the facts
alleged in the complaint are merely "unlikely." Denton,
504 U.S. at 33. However, a complaint may be properly dismissed sua
sponte if the allegations are found to be "fanciful,"
"fantastic," or "delusional," or if they "rise to the level of
the irrational or the wholly incredible." Id. (citing
Neitzke, 490 U.S. at 325, 328). In addition, the Ninth Circuit
provides that cases which "merely repeat pending or previously
litigated claims" may be dismissed as frivolous. Caro v. United
States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995). Moreover, if a
case is classified as frivolous, there is no reason to grant
leave to amend because a frivolous case, by definition, has no
merit to the underlying action. Lopez, 203 F.3d at 1127 n. 8.
In the complaint, Plaintiff alleges he is enrolled in classes
at Mesa College and students on campus tell him to leave or quit,
and play "recorded screaming noises as if to say that
[Plaintiff's] 24 year old son was being tortured and beat up
behind closed doors on campus." Complaint at 1. Plaintiff further
alleges students and faculty have stuck him with "some kind of
injectible device" and injected him with "germ, spit, urine,
blood" and even syphilis and the flu. Id. He also alleges he
was "hit with some kind of saline solution that probably has
something to do with [his] blood pressure being so high," because
his doctor prescribed medicine for high blood pressure and he was warned high blood
pressure could lead to a heart attack or stroke. Id. at 2.
Plaintiff alleges this amounts to attempted murder. Additionally,
he alleges his work is destroyed, his food is tampered with and
he suffers "physical attacks or `hits'" in the library,
cafeteria, administrative office and classrooms. Id.
Plaintiff fails to state under what legal theory he is suing
and simply states he is sure his "Constitutional or Human Rights
and or Civil rights have been violated and that the SDCCD is in
violation of Federal Government Guidelines." Id. at 3. He
further maintains his "rights as a student were violated under
The San Diego Community College Policy 3100." Id. He seeks
$30,000,000 in damages.
Although in some cases it may be difficult to judge whether a
plaintiff's factual allegations are truly "delusional" or merely
"unlikely," this is not such a case. Denton, 504 U.S. at 33. In
this Court's view, this case clearly "rises to the level of the
irrational or the wholly incredible." Id. Accordingly, this
Court finds Plaintiff's complaint is "frivolous" as that term is
defined by the United States Supreme Court and, accordingly,
dismisses the complaint without leave to amend. Lopez,
203 F.3d at 1127 n. 8.
III. Conclusion and Order
Based on the foregoing, IT IS HEREBY ORDERED that:
1. The instant complaint is sua sponte DISMISSED
without leave to amend as frivolous; and
2. Plaintiff's motion to proceed in forma ...