United States District Court, E.D. California
ORDER DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS
AND DISMISSING MATTER AS FRIVOLOUS (DOC. NOS. 2)
March 27, 2017, Plaintiff filed this matter that purports to
be a civil rights lawsuit. Plaintiff is proceeding pro se and
is a prisoner at Pleasant Valley State Prison. Plaintiff
captions his complaint as “AVETIS SARKIS KOSHKARYAN,
registered trade name/business entity, and Koshkaryan, Avetis
Sarkis, registered trade name holder and real party in
interest.” Plaintiff names as Defendants Carolyn Kuhl,
Carolyn Kuhl's husband, Jackie Lacey, and Jackie
Lacey's husband. An exhibit to the Complaint includes of
a certificate of service that names Carolyn Kuhl as
“dba presiding judge, ” and names Jackie Lacey as
“dba prosecutor.” An address of 14400 Erwin St.,
Van Nuys, CA is listed. The address 14400 Erwin St. is the
location of the Los Angeles Superior Court in Van Nuys,
Carolyn Kuhl is a judge on the Los Angeles Superior
Court.Jackie Lacey is the District Attorney of
Los Angeles County. Plaintiff now moves to proceed in this
case in forma pauperis. For the reasons that follow,
the motion will be denied and this case will be closed.
Complaint is not a model of clarity. Plaintiff purports to
grant his name (Koshkaryan, Avetis Sarkis) and his registered
trade name “AVETIS SARKIS KOSHKARYAN” to the
court for the future return of interest. Plaintiff also makes
claim to his free will and right of dominion over his own
body, blood, DNA, all properties, and all hereditaments.
Plaintiff states that he is a “private, non-statutory,
non-citizen, de jure American in the de jure original
jurisdiction, not a ‘person, ' not a
‘citizen, ' not named in an U.S. or state
‘code, ' and not a ‘person' as defined in
the Trading With The Enemy Act . . . .” Plaintiff
states that Carolyn Kuhl is being sued in her personal
capacity because she was “operating in her ministerial
capacity, enforcing statutes . . . .” Plaintiff states
that this case began as a civil rights lawsuit, but
“has now been reduced to a breach of contract as all
defendants admitted, via their own willful and voluntary
default on the administrative process, that they are guilty
and they owe the amount requested by the plaintiffs, and they
failed to object or state any claim to immunity.”
Plaintiff states that Defendants refused to respond to
various documents that he served upon them, and that he has
“established ‘judicial estoppel' against
Defendants, as evidence by the Certificate of
Dishonor/Administrative Judgment Nihil Dicit, testified to by
Eileen Raye, a public minister . . . .” The documents
served on Defendants claim to be an “Affidavit of
Obligation [which] is a commercial instrument . . . .”
Plaintiff request $78, 340, 000.00 in damages.
Forma Pauperis Framework
courts “may authorize the commencement . . . of any
suit, action or proceeding, civil or criminal . . . without
prepayment of fees or security therefor, by a person who
submits an affidavit that includes a statement of all assets
such [person] possess that the person is unable to pay such
fees or give security therefor.” 28 U.S.C. §
1915(a)(1). A district court “shall dismiss the case at
any time if the court determines that . . . the action . . .
is frivolous or malicious . . . .” 28 U.S.C. §
1915(e)(2)(B)(i). An action is “frivolous” if it
has no arguable basis in fact or law; the term embraces both
inarguable legal conclusions and fanciful factual
allegations. Neitzke v. Williams, 490 U.S. 319, 325
(1989); DeRock v. Sprint-Nextel, 584 Fed.Appx. 737
(9th Cir. 2014); see also Tripati v. First Nat'l Bank
& Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).
“A district court may deny leave to proceed in
forma pauperis at the outset if it appears from the face
of the proposed complaint that the action is frivolous or
without merit.” Minetti v. Port of Seattle,
152 F.3d 1113, 1115 (9th Cir. 1998); Tripati, 821
F.2d at 1370. However, the “denial of leave to proceed
in forma pauperis is an abuse of discretion unless
the district court first provides a plaintiff leave to amend
the complaint or finds that amendment would be futile.”
Rodriguez v. Steck, 795 F.3d 1187, 1188 (9th Cir.
2015); see Tripati, 821 F.2d at 1370. If a court
denies a motion to proceed in forma pauperis because
the complaint is frivolous and cannot be cured by amendment,
then the denial of the motion acts as a dismissal under 28
U.S.C. § 1915(e). Rodriguez, 795 F.3d at 1188.
apparent that Plaintiff is attempting to use non-applicable
law to either obtain his release from custody, or obtain
money from the judge and prosecutor of his criminal
nature of the Complaint indicates that Judge Kuhl would be
entitled to absolute judicial immunity against
Plaintiff's claims. See Moore v. Brewster, 96
F.3d 1240, 1243-44 (9th Cir. 1996). Because of the nature of
judicial immunity, amendment with respect to Judges Kuhl
would be futile. Martinez v. Newport Beach City, 125
F.3d 777, 785 (9th Cir. 1997).
nature of the Complaint also indicates that District Attorney
Lacey is entitled to absolute prosecutorial immunity. See
Van de Kamp v. Goldstein, 555 U.S. 335, 342-43 (2009).
Because of the nature of prosecutorial immunity, amendment
with respect to District Attorney Lacey would be futile.
See Smith v. Delaware, 624 Fed.Appx. 788, 790-91 (3d
Cir. 2015); Lopez v. County of L.A., 2016 U.S. Dist.
LEXIS 1339, *21 (N.D. Cal. Jan. 5, 2016); Douglas v.
Miller, 864 F.Supp.2d 1205, 1221 (W.D. Ok. 2012).
no plausible cause of action is alleged in the
Complaint. The allegations and apparent theories for
Plaintiffs' claims are specious and fanciful. Plaintiff
attempted to create unilateral liability by sending what
purports to be a commercial paper, specifically an
“affidavit of obligation for claim upon public hazard
bonds demand for release, ” to a sitting superior court
judge and the district attorney of Los Angeles. Plaintiffs
complaint is reminiscent of the discredited “sovereign
citizen” movement. Cf. Leiter v. Kenney, 2016
U.S. Dist. LEXIS 172482 (D. Minn. Oct. 26, 2016);
Smithson v. York Cnty. Ct. of Common Pleas, 2016
U.S. Dist. LEXIS 102674 (M.D. Pa. Aug. 3, 2016); Payne v.
Kilda, 2016 U.S. Dist. LEXIS 14968 (E.D. Mich. Jan. 6,
2016); Alexio v. Obama, 2015 U.S. Dist. LEXIS 168035
(D. Haw. Dec. 16, 2015); Nunez v. D.T.C., 2013 U.S.
Dist. LEXIS 138514, *6 (D. S.C. Aug. 30, 2013). Because the
allegations and bases for the Complaint's theories are
frivolous, amendment would be futile. See id.
claims are specious and frivolous, and no plausible claims
are alleged. See Neitzke, 490 U.S. at 325;
Tripati, 821 F.2d at 1370. Because amendment would
be futile, the Court will deny Plaintiffs' motion to
proceed in forma pauperis and dismiss this case.
See 28 U.S.C. § 1915(e); Rodriguez,
795 F.3d at 1188; Minetti, 152 F.3d at 1115;
Tripati, 821 F.3d at 1370.
IT IS HEREBY ORDERED that;
Plaintiff s motion to proceed in forma pauperis