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Banks v. Pivnichny

United States District Court, E.D. California

July 13, 2015

FREDERICK BANKS, an American Indian, Plaintiff,
v.
TIMOTHY PIVNICHNY, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Plaintiff, proceeding in this action pro se, has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302(c)(21).

Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

The federal in forma pauperis statute authorizes federal courts to dismiss a case if the action is legally "frivolous or malicious, " fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

I. SCREENING STANDARD

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The court may also dismiss a claim as frivolous where it is barred by res judicata. Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) (affirming dismissal of complaint as frivolous on res judicata grounds under predecessor to 28 U.S.C. § 1915(e)).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

II. THE COMPLAINT

Plaintiff's complaint names approximately 85 defendants, including Timothy Pivnichny (alleged to be a Special Agent of the FBI), Barack Obama, the FBI, the CIA, Mitt Romney, Hillary Rodham Clinton, the Administrative Office of the Courts, federal judges, the U.S. Senate, the U.S. Congress, and the Pittsburgh Post Gazette.

According to the complaint, in 2003 and 2004, Pivnichny pointed a loaded gun at plaintiff's fiancee during an interview. Complaint (ECF No. 1) ¶ 1. Pivnichny later confiscated and then repaired an "Orbit II DVD/CD Copier made by Microboards." Id . Plaintiff concludes that "[i]n these two ways he [Pivnichny] set up Frederick H. Banks." Id . When plaintiff tried to expose Pivnichny's conduct, defendants Booz Allen Hamilton (alleged to be agents of the CIA), then retaliated against plaintiff by "bombarding him with a wireless signal." Id . None of the defendants did anything to investigate or otherwise address Pivnichny's conduct. Complaint ¶ 2.

Based upon these facts, the complaint alleges that defendants violated plaintiff's Fifth and Fourteenth Amendment Due Process rights under the U.S. Constitution, and further, that they violated the Sioux Treaty of Fort Laramie.

III. RES JUDICATA

A. The Law

Res judicata, or claim preclusion, prohibits lawsuits on "any claims that were raised or could have been raised " in a prior action. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (emphasis added) (quoting W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)). Res judicata applies when there is: "(1) an identity of claims; (2) a final ...

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