Tew v. Federal Bureau of Investigation

Southern District of Ohio, ohsd-1:2011-cv-00554

REPORT AND RECOMMENDATIONS re {{3}} Complaint filed by Bryan Tew. It is therefore RECOMMENDED that: 1. Plaintiffs complaint be dismissed for failure to state a claim upon which relief may be granted. 2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to appl y to proceed in forma pauperis in the Court of Appeals. Objections to R&R due by 9/9/2011. Signed by Magistrate Judge Karen L. Litkovitz on 8/22/2011. (jlw) (Additional attachment(s) added on 8/22/2011: # {{1}} Certified Mail Receipt) (jlw). Modified on 8/23/2011 (lk). Modified to correct Judge details on 8/26/2011 (sct1).

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Case: 1:11-cv-00554-MRB-KLL Doc #: 8 Filed: 08/22/11 Page: 1 of 5 PAGEID #: 152 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION BRYAN TEW, Case No. 1:11-cv-554 Plaintiff Barrett, J. Litkovitz, M.J. vs FEDERAL BUREAU OF INVESTIGATION, REPORT AND RECOMMENDATION Defendant Plaintiff, a resident of Cincinnati, Ohio, brings this action against the Federal Bureau of Investigation (FBI) alleging a violation of his rights. By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review of plaintiff's complaint to determine whether the complaint, or any portion of it, should be dismissed because it is frivolous, 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)(B). In enacting the original in forma pauperis statute, Congress recognized that a "litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see 28 U.S.C. §§ 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An Case: 1:11-cv-00554-MRB-KLL Doc #: 8 Filed: 08/22/11 Page: 2 of 5 PAGEID #: 153 action has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or "wholly incredible." Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199. Congress has also authorized the sua sponte dismissal of complaints which fail to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). Plaintiff's complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded factual allegations as true, but need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). While a complaint need not contain "detailed factual allegations," it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. Plaintiff's 42 page complaint alleges numerous allegations against the FBI, including that the FBI has harassed and "targeted" him "with a repeated blast[s] of heat/energy" when in his 2 Case: 1:11-cv-00554-MRB-KLL Doc #: 8 Filed: 08/22/11 Page: 3 of 5 PAGEID #: 154 apartment "coming from the ceiling or apartment" above his own; has targeted him with "some type of directional electromagnetic acoustical device;" and has sent people to attend his church to harass him by "staring at [him], with angry, enraged, deranged facial expressions, through the entire service." He also alleges that the FBI "would send people who would yell and scream and hiss at me as I walked down the sidewalk, waving their arms in a deranged enraged fashion yelling expletives and curse words at me." His complaint continues in a similar vein, with most of the allegations being nonsensical and incomprehensible. As relief, plaintiff requests an evidentiary hearing, the appointment of counsel, and an injunction against the FBI. In this case, plaintiff's complaint fails to state a claim upon which relief may be granted in this federal court. Plaintiff's factual allegations are delusional and incomprehensible. The complaint provides no factual content or context from which the Court may reasonably infer that the defendant violated plaintiff's rights. Plaintiff's factual allegations rise to the level of the delusional, irrational and "wholly incredible." Accordingly, the complaint fails to state a claim upon which relief may be granted and should be dismissed under 28 U.S.C. § 1915(e)(2)(B). IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's complaint be dismissed for failure to state a claim upon which relief may be granted. 2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277 3 Case: 1:11-cv-00554-MRB-KLL Doc #: 8 Filed: 08/22/11 Page: 4 of 5 PAGEID #: 155 (6th Cir. 1997). Date: 8/22/2011 s/Karen L. Litkovitz Karen L. Litkovitz, Magistrate Judge United States District Court 4 Case: 1:11-cv-00554-MRB-KLL Doc #: 8 Filed: 08/22/11 Page: 5 of 5 PAGEID #: 156 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION BRYAN TEW, Case No. 1:11-cv-554 Plaintiff Barrett, J. Litkovitz, M.J. vs FEDERAL BUREAU OF INVESTIGATION, Defendant NOTICE Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 5