The opinion of the court was delivered by: District Judge Nora Barry Fisher
Magistrate Judge Cynthia Reed Eddy
MAGISTRATE JUDGE CYNTHIA REED EDDY REPORT AND RECOMMENDATION
For the reasons set forth in the following Report, the Magistrate Judge recommends that Plaintiff Naomi Leatherman's Motion for Leave to Proceed In Forma Pauperis be granted and this case be dismissed pursuant to 28 U.S.C. § 1915(a) and (e), with prejudice because her Complaint/ motion for preliminary injunction or temporary restraining order is non-justiciable and fails to state a claim, and because amendment would be futile.
On October 15, 2012,Plaintiff filed a Motion for Leave to Proceed in forma pauperis, pursuant to 28 U.S.C. § 1915, with her Complaint entitled "Preliminary Injunction Temporary Restraining Order" attached. Plaintiff alleges that the President of the United States is "going out of his way to ensure that [she] does not receive medical care so that she will die," in conspiracy with the National Security Agency, the CIA's "Monarch Program which is a branch off of Mk Ultra," the Freemasons, Quest Diagnostics, Lab Corp. and the FBI, not to mention the Mexican Government, an unnamed coconspirator. Plaintiff also attaches several medical scans, including a "scan of my skull . . . [in which] you can see devices that were implanted in my brain as a toddler." (ECF No. 1-1, at 2). Plaintiff asserts that unnamed psychologists and "Homegrown Terrorists" have threated her with being placed in a mental hospital, have ignored her kidney disease which causes severe hallucinations and other side effects that can easily be construed as psychosis," and has been "forced to take involuntary anti psychotic injections." Id.
Plaintiff Leatherman seeks the following relief: "Hemodialysis, and restraining orders against every and any Central Intelligence Agent, and or those involved in this Nationwide Medical Conspiracy Against me. Plaintiff seeks $5,000,000,000.00 billion in damages and the entire states of Pennsylavania [sic] & Colorado." Id.
Preservice Screening Standards
The Court is statutorily required to review the complaint of a plaintiff proceeding in forma pauperis prior to service of process. 28 U.S.C. §§ 1915(e), 1915A(a). The screening procedures established by section 1915(e) apply to complaints filed by prisoners as well as to non-prisoner in forma pauperis cases. See Newsome v. EEOC, 301 F.3d 227, 3231-33 (5th Cir. 2002) (affirming dismissal of non-prisoner claims for frivolity and failure to state a claim under § 1915(e)(2)(B)(i) and (ii)); Cieszkowska v. Gray Line N.Y., 295 F.3d 204, 205-06 (2d Cir. 2002) (affirming dismissal of in forma pauperis non-prisoner case for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)).*fn1
When reviewing in forma pauperis applications, the Court must make two separate determinations. First, the Court must determine whether the plaintiff is eligible for pauper status pursuant to 28 U.S.C. § 1915(e)(2)(A). Based on the information provided in the Plaintiff's in forma pauperis affidavit, the Court concludes she has insufficient funds to pay the requisite filing fee, and recommends that the District Court grant Plaintiff's request to proceed in forma pauperis.
Second, pursuant to 28 U.S.C. § 1915(e)(2)(B), and § 1915A(a), the Court must "screen" the complaint to determine whether it is (i) frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a defendant immune from such relief. If "at any time," the court determines that the action meets any of those criteria, the court "shall dismiss the case . . . ." Id.
The United States Supreme Court has held that 28 U.S.C. § 1915(e)(2)(B)'s term "frivolous" when applied to a complaint, "embraces not only the inarguable legal conclusion, but also the fanciful factual allegation," such that a claim is frivolous within the meaning of section 1915(e)(2)(B) if it "lacks an arguable basis either in law or in fact," Neitzke v. Williams, 490 U.S. 319, 325 (1989). Moreover, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, it is required to do so by the mandatory language of "the court shall dismiss" utilized by Section 1915(e). See, e.g., Keener v. Pennsylvania Bd. of Probation and Parole, 128 F.3d 143, 145 n.2 (3d Cir. 1997) (describing section 1915(e)(2)(B) as "the PLRA provision mandating sua sponte dismissal of in forma pauperis actions that are frivolous or fail to state a claim."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke, 490 U.S. at 325. Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A, a court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Id., 490 U.S. at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989). See also Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took an inmate's pen and refused to give it back); Denton v. Hernandez, 504 U.S. 25 (1992) (where complaint alleges facts that are "clearly baseless," "fanciful" or "delusional," it may be dismissed as frivolous); Pavalone v. Bush, 2012 WL 1569614, *1 (M.D.Pa. 2012) ("Within the Third Circuit, courts have found that allegations which are considered fanciful, fantastic, and delusional are to be dismissed as frivolous.") (numerous citations omitted); Frazier v. Southwoods State Prison , 2006 WL 1044451, at *2 (D.N.J. 2006) ("In accordance with the Supreme Court's guidance articulated in Neitzke and Denton, courts across the nation dismissed claims based on sets of facts that were qualified as 'fanciful, fantastic and delusional.'") (numerous citations omitted).
However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §§ 1915 and 1915A, the Court must grant Plaintiff leave to amend his complaint, unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). If the pro se plaintiff can cure the factual allegations in order to state a claim, the Court should give him or her an opportunity to do so. However, if amendment cannot cure the deficiencies, ...