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THE PRESIDENTIAL COMMISSION FOR THE STUDY OF BIOETHICAL ISSUES – PUBLIC COMMENT VIDEOS

THE PRESIDENTIAL COMMISSION FOR THE STUDY OF BIOETHICAL ISSUES – PUBLIC COMMENT VIDEOS

THE PRESIDENTIAL COMMISSION FOR THE STUDY OF BIOETHICAL ISSUES – PUBLIC COMMENT VIDEOS May 2011 Bioethics Commission hearing Public comment session videos Targeted Individuals give their testimonies before the Presidential Commission about their involvement as involuntary mind control, weapons research, and no-touch torture victims. [1/5] http://www.youtube.com/watch?v=vmhdsQ8fPSc [2/5] http://www.youtube.com/watch?v=nKMgHd-gn1M [3/5] http://www.youtube.com/watch?v=DenV-MTVo80 [4/5] http://www.youtube.com/watch?v=_ZwNgM0RCY0 [5/5] http://youtu.be/RsdAzMUA7b8

The Coming Superbrain By JOHN MARKOFF

The Coming Superbrain By JOHN MARKOFF

http://www.nytimes. com/2009/ 05/24/weekinrevi ew/24markoff. html?_r=1&src=twt&twt=nytimes

 

Week in Review The Coming Superbrain By JOHN MARKOFF

Published: May 24, 2009

Artificial intelligence is back in fashion, which raises the question: Will computer intelligence surpass our own?

Cell hone Alibi Clubs: May Be Related To Gangstalking

http://www.nytimes.com/2004/06/26/business/for-liars-and-loafers-cellphones-offer-an-alibi.html
For Liars and Loafers, Cellphones Offer an Alibi

By MATT RICHTEL
Published: June 26, 2004

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Cellphones are chock-full of features like built-in cameras, personalized ring tones and text messaging. They also gave a real boost to Kenny Hall’s effort to cheat on his girlfriend.

Mr. Hall, a 20-year-old college student in Denver, decided in March to spend a weekend in nearby Boulder with another woman. He turned to his cellphone for help, sending out a text message to hundreds of other cellphone users in an ”alibi and excuse club,” a network of 3,400 strangers who help each other skip work, get out of dates or give a loved one the slip.

Assistance came instantly. A club member, on receiving Mr. Hall’s message, agreed to call the girlfriend. He pretended to be the soccer coach from the University of Colorado at Boulder and said that Mr. Hall was needed in town for a tryout.

”It worked out pretty good,” said Mr. Hall, who signed up for the network on http://www.sms.ac, a Web site that offers access to hundreds of mobile chat rooms.

This type of thing was mentioned in more detail in Dan Brown’s book Inferno.

NAOMI RICHES, Plaintiff, v. HURRICANE SANDY, also known as FRANKENSTORM, and HAARP, also known as THE HIGH FREQUENCY ACTIVE AURORAL RESEARCH PROGRAM, Defendants.

NAOMI RICHES, Plaintiff, v. HURRICANE SANDY, also known as FRANKENSTORM, and HAARP, also known as THE HIGH FREQUENCY ACTIVE AURORAL RESEARCH PROGRAM, Defendants.

Civil Action No. 12-1620

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

2012 U.S. Dist. LEXIS 178999

November 8, 2012, Decided

November 14, 2012, Filed

 

SUBSEQUENT HISTORY: Adopted by, Dismissed by Riches v. Sandy, 2012 U.S. Dist. LEXIS 177949 (W.D. Pa., Dec. 17, 2012)

CORE TERMS: frivolous, forma pauperis, delusional, fails to state, factual allegation, fanciful, pro se, failure to state a claim, fantastic, legal conclusion, citations omitted, entitled to relief, non-prisoner, well-pleaded, recommends, screening, prisoner, leave to amend, legal standard, factual matter, sua sponte, cause of action, entitlement to relief, destruction, liberally, arguable, baseless, pleader, futile, weapon

COUNSEL:[*1] NAOMI RICHES, Plaintiff, Pro se, Atlantic City, NJ.

JUDGES:Cynthia Reed Eddy, United States Magistrate Judge.

OPINION BY: Cynthia Reed Eddy

OPINION

MAGISTRATE JUDGE CYNTHIA REED EDDY REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons set forth in the following Report, the Magistrate Judge recommends that Plaintiff Naomi Riches’ 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 attached Complaint is frivolous, fanciful, delusional and non-justiciable and fails to state a claim, and amendment would be futile.

II. REPORT

Initially, the Court notes that “Naomi Riches” recently filed a pro se, frivolous complaint against the President of the United States, 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, in which she identified herself as “Naomi Leatherman, d/b/a Naomi Riches.” Leatherman v. Obama, Civil Action No. 12-1486 (W.D.PA. 2012). The Court, per the November 2, 2012, Order of United States District Judge Nora Barry Fisher adopting the Report and Recommendation of this Court, dismissed that action because[*2] the complaint was “delusional, fantastic and fail[ed] to state a claim.” See Order dated November 2, 2012, (ECF No. 4, at Civil Action No. 12-1486).

On November 6, 2012, Plaintiff Naomi Riches (without the “d/b/a”) filed a Motion for Leave to Proceed In Forma Pauperis, pursuant to 28 U.S.C. § 1915, with her Complaint against Hurricane Sandy, and “HAARP, also known as THE HIGH FREQUENCY ACTIVE AURORAL RESEARCH PROGRAM.” Plaintiff claims Hurricane Sandy was a “weapon of mass destruction” engineered by the President of the United States, the Department of Homeland Security and the “High Frequency Active Auroral Research Program,” or “HAARP.” HAARP, Plaintiff claims, is also a “weapon of mass destruction” that geo-engineers storms to increase their intensity and control their destinations. It is apparent that her claims are frivolous, fanciful, delusional, and simply not justiciable. See, e.g. Donn v. A.W. Chesterton Co., Inc., 842 F.Supp.2d 803, 816-17 (E.D.Pa. 2012), and cases cited therein.

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[*3] 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, 231-33 (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)). ¹

1Although the Third Circuit has not ruled on the issue in a precedential opinion, several district courts in the Third Circuit have considered the question of whether this revised in forma pauperis statute applies only to prisoners and have concluded that it does not. Harrison v. Shapiro, No, 97-2133, 1997 U.S. Dist. LEXIS 5293, 1997 WL 197950, at * 1 (E.D.Pa. 1997)(Van Artsdalen, J.); Jones v. North Atlantic Treaty Organization, No. 98-1185, 1998 U.S. Dist. LEXIS 3569, 1998 WL 136511, at *1 n. 1 (E.D.Pa. 1998)(Padova, J.); McAllen v. Attic Away From Home, No. 00-941, 2000 U.S. Dist. LEXIS 23163, 2000 WL 1752618, at *2 n. 7 (D.Del. 2000) (Sleet, J.) Each of these courts has found the mention of the word “prisoner” to be a typographical error, and that the[*4]Congress meant the statute to read “person.” I find this reasoning to be persuasive. See also, Anyanwutaku v. Moore, 151 F.3d 1053, 331 U.S. App. D.C. 379 (D.C.Cir. 1998); Mitchell v. Farcass, 112 F.3d 1483, 1484 (11th Cir. 1997); Powell v. Hoover, 956 F.Supp. 564, 568 (M.D.Pa. 1997).

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[*5]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, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (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[*6] 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, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992) (where complaint alleges facts that are “clearly baseless,” “fanciful” or “delusional,” it may be dismissed as frivolous); Pavalone v. Bush, 2012 U.S. Dist. LEXIS 61974, 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 U.S. Dist. LEXIS 20832, 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. §§ 1915and 1915A, the Court must grant Plaintiff leave[*7] 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, the Court may dismiss without leave to amend, id., and even dismiss with prejudice. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

Rule 12(b)(6) Standards

The legal standard for dismissing a complaint for failure to state a claim pursuant to §1915(e)(2)(B)(ii)and § 1915A(b)(1) is identical to the legal standard used when ruling onRule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6) standard to dismissal for failure to state a claim under section 1915(e)(2)(B)). Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if the complaint fails to state a claim upon which relief can be granted. The Supreme Court refashioned the standard for addressing a motion to dismiss underRule 12(b)(6) in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The Twombly[*8] Court stated that, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Id. at 555 (internal citations omitted). Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id., at 557. See also Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (standard of review for motion to dismiss does not require courts to accept as true “unsupported conclusions and unwarranted inferences” or “legal conclusion[s] couched as factual allegation[s].” (internal quotation marks omitted)). Therefore, for a complaint to withstand a motion to dismiss under Rule 12(b) (6), the “[f]actual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . .” Twombly, 550 U.S. at 555 (internal citations and footnote omitted).

More recently, the Supreme Court has emphasized that[*9]a well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The assumption of truth is inapplicable to legal conclusions or to “[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements.” Id., 556 U.S. 662, 129 S.Ct. at 1949. As Iqbal explained, under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief . . .,” and as the Court held in Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929, the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id., at 555.

When determining whether dismissal is appropriate, the Court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are separated. Id. The Court must accept all of the Complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Id. at 210-11. Second, the Court must determine whether the facts alleged in the Complaint are sufficient to show that[*10] Plaintiff has a “plausible claim for relief.” Id. at 211. In other words, the Complaint must do more than allege Plaintiff’s entitlement to relief; rather it must “show” such an entitlement with its facts. Id. “[W]here the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged – but it has not shown -that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1949(quoting Fed.R.Civ.P. 8(a)(2)). A complaint will be dismissed unless it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. at 1949 (quoting Twombly, 550 U.S. at 570.) This “plausibility” determination will be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Fowler, 578 F.3d at 211(quoting Iqbal, 129 S.Ct. at 1949).

Plaintiff is required to make a “showing,” rather than a blanket assertion, of an entitlement to relief. Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’[*11] but also the ‘grounds’ on which the claim rests.” Id. (citing Twombly, 550 U.S. at 556 n. 3). Therefore, “‘stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required element.” Id. “This ‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'” Id. at 234.

Even post-Twombley, however, because Plaintiff proceeds pro se, her pleading is liberally construed and her Complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citations omitted). Thus, the Court must liberally construe a pro se litigant’s pleadings and “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d 244, 247-48 (3d. Cir. 1999)). “‘Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured[*12] by the Constitution.’ ” Higgins, 293 F.3d at 688(quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).

III. CONCLUSION

Viewed in light of the foregoing, it is obvious that Plaintiff’s complaint is delusional, fantastic and fails to state a claim. Moreover, it would be impossible to serve Hurricane Sandy or HAARP. Accordingly, this Court recommends that the motion for leave to proceed in forma pauperis be granted, and that the case be dismissed with prejudice.

In accordance with the Magistrate’s Act, 28 U.S.C. § 636 (b)(1)(B) and (C), andRule 72.D.2 of the Local Rules for Magistrates, Objections to this Report and Recommendation are due by December 3, 2012. Failure to timely file Objections will constitute waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).

Respectfully submitted,

/s/ CYNTHIA REED EDDY

Cynthia Reed Eddy

United States Magistrate Judge

Dated: November 8, 2012

WAYNE RITCHIE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

WAYNE RITCHIE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. C 00-3940 MHP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

2007 U.S. Dist. LEXIS 58614

August 3, 2007, Decided

August 10, 2007, Filed

 

SUBSEQUENT HISTORY: Decision reached on appeal by, Costs and fees proceeding at Ritchie v. United States, 2009 U.S. App. LEXIS 18825 (9th Cir. Cal., Aug. 20, 2009)

PRIOR HISTORY: Ritchie v. United States, 451 F.3d 1019, 2006 U.S. App. LEXIS 16000 (9th Cir. Cal., 2006)

CORE TERMS: deposition, discovery, taxation, clerk, attorneys’ fees, prevailing party, misconduct, scripts, drink, deposition testimony, defense counsel, subpoena, newspaper, discovery request, psychoactive drugs, express provision, filing fee, challenging, sanctioned, post-trial, allowance, reduction, robbery, marshal, commit, reply, compel discovery, mind-control, conversations, declaration

COUNSEL:[*1] For Wayne A. Ritchie, Plaintiff: Sidney Bender, LEAD ATTORNEY, Leventritt Lewittes & Bender, New York, NY; Christopher Carl Lamerdin, Office the Attorney General-State of California, Oakland, CA; Robert E. Cartwright, Jr., The Cartwright Law Firm, Inc., San Francisco, CA.

For United States of America, Defendant: Owen Peter Martikan, LEAD ATTORNEY, United States Attorney Northern District of California, San Francisco, CA; James G. Bartolotto, United States Department of Justice, Washington, DC; R. Joseph Sher, United States Attorney, Alexandria, VA.

JUDGES:MARILYN HALL PATEL, United States District Court Judge.

OPINION BY: MARILYN HALL PATEL

OPINION

MEMORANDUM & ORDER

Re: Plaintiff’s Motion to Compel

Discovery and Review Taxation of Costs

Plaintiff Wayne Ritchie brought an action against the United States of America, alleging that the Central Intelligence Agency and the Bureau of Narcotics tested psychoactive drugs on unknowing and unwitting American citizens including plaintiff during the 1950s, and that this non-consensual testing drove plaintiff to commit an armed robbery on December 20, 1957. Plaintiff initially filed claims against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.[*2](“FTCA”), and against Robert V. Lashbrook and Ira Feldman under the First,Fourth, Fifth and Eighth Amendments to the United States Constitution. Plaintiff sought twelve-million dollars in compensatory damages, as well as costs and attorneys’ fees. The court held a four-day bench trial on the FTCA claims and subsequently granted judgment in favor of defendant. Now before the court is plaintiff’s motion to compel documents and to review the clerk’s taxation of costs.

BACKGROUND¹

1All facts cited herein are taken from the Complaint unless otherwise noted.

As explained in this court’s July 1, 2002 Memorandum and Order, plaintiff, a former Deputy United States Marshal, alleges that he was unwittingly given food or drinks that were laced with lysergic acid diethylamide (LSD) or another psychoactive drug while he was attending a holiday party in the United States Post Office Building on December 20, 1957. Compl. P 12. According to plaintiff’s uncontradicted declaration, Ritchie first arrived at his office’s Christmas party at approximately noon on December 20, 1957. Ritchie Dec. P 5. He drank a single bourbon and soda and returned to his office shortly thereafter. Id.Two hours later, Ritchie[*3]re-entered the party and consumed three or four more drinks. Id. at 6. Plaintiff then began to feel paranoid and imagined that his fellow officers and co-workers had turned against him. Id. at 7. He left work, returned home briefly, and then visited four bars, where he consumed a total of two more drinks. Id. at 7-9. Still fueled by paranoia, plaintiff then resolved to hold up a bar and returned to his office where he took two revolvers from his personal locker. Id. at 9-10. He entered a fifth bar, had one drink, and then drew a weapon and demanded money. Id. at 10. Someone knocked Ritchie unconscious, and he was subsequently arrested. Id. at 10-11.

Plaintiff alleges that he was a victim of a federal program, called “MKULTRA,” dedicated to the research and development of drugs, including LSD, that might be used to alter human behavior. Compl. PP 18 & 26. Plaintiff maintains that he “first suspected that he might have been surreptitiously drugged” when he read the obituary of Dr. Stanley Gottlieb, a former CIA agent implicated in that agency’s mind-control program, in the newspaper on March 15, 1999. Compl. P 23. He found additional support for his suspicion in April 1999 when he read[*4] a diary entry of George White, an agent of the Bureau of Narcotics and allegedly the operating head of the CIA’s “mind-altering program” in San Francisco. See Compl. P 24; Ritchie Dep., Exh. B-12 (White was a senior employee at the San Francisco Federal Narcotics Bureau in the 1950s). White’s December 20, 1957, diary entry stated, in part, “xmas party Fed bldg Press Room.” Ritchie Dep., Exh. D; Compl. P 25. ² White was an MKULTRA subcontractor from approximately 1953 until 1964. McGinn Dec. P 5. In that role, he established a safehouse apartment in San Francisco where drug tests were conducted on drug informants and prostitutes. Id. Defendant has also produced an extensive record of newspaper and television coverage documenting federal mind-control experimentation. Id., Exhs. A-C (newspaper articles) & X (books).

2The full entry reads: “home flu — xmas party Fed bldg Press Room.” Ritchie Dep., Exh. D

After a number of pre-trial motions, the court conducted a bench trial. At trial, Ritchie presented two live witnesses during his case-in-chief: himself and a doctor who testified that LSD was the cause of Ritchie’s attempted robbery. Ritchie also relied on the deposition testimony of[*5]Ira Feldman, a former agent involved with the MKULTRA program. After Ritchie concluded his case in chief, the government moved for judgment as a matter of law under Federal Rule of Civil Procedure 52(c). The court granted the government’s motion.

The allegations in the instant motion concern the deposition of Feldman on July 30, 2002. On May 8, 2007, long after the deposition and the conclusion of trial, plaintiff’s counsel, Sidney Bender, took Feldman to lunch. During that lunch, Feldman told Bender that shortly before the scheduled deposition two attorneys representing defendant–Kathleen McGinn, agency counsel for the Central Intelligence Agency, and Patricia Kenney, assistant United States Attorney–provided Feldman with a list of questions and proposed answers (“scripts”) in preparation for the deposition. Bender also admits that Feldman retracted his statements about the scripts in subsequent conversations. Bender Dec. P 2.

Plaintiff presented similar arguments in the context of the government’s motion at the close of trial pursuant to Federal Rule of Civil Procedure 52(a). At that time, plaintiff sought sanctions against defendant arguing that defense counsel was aware of Feldman’s[*6]perjurious testimony. The court reviewed those allegations at the time and concluded that plaintiff had not established by a preponderance of the evidence that defense counsel had knowingly presented perjured testimony. The court sanctioned defendant pursuant to Rule 30(d)(3) because Kenney’s behavior “may well have denied plaintiff the opportunity to solicit further valuable testimony.” January 5, 2005 Order, at 15. The court awarded plaintiff reasonable costs and attorneys’ fees incurred in taking Feldman’s second deposition. That ruling was subsequently affirmed by the Ninth Circuit. Ritchie v. United States, 451 F.3d 1019, 1022 (9th Cir. 2006).

LEGAL STANDARD

Motion for Review of Taxation of Costs

An award of costs to a prevailing party is permitted as a matter of course under Federal Rule of Civil Procedure 54(d)(1). ³ An item is not recoverable as a cost under Rule 54(d) unless it is specifically enumerated in 28 U.S.C. § 1920. ⁴ “[Section] 1920 defines the term ‘costs’ as used in Rule 54(d). Section 1920enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987).[*7] A court denying the prevailing party costs under rule 54(d)(1) must provide its reasons for doing so. Ass’n of Mexican-Am. Educators v. State of Cal., 231 F.3d 572, 592-93 (9th Cir. 2000).

3Federal Rule of Civil Procedure 54(d)(1) provides, in pertinent part

Costs Other than Attorneys’ Fees. Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.

4Section 1920 provides

Taxation of costs

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;

(5) Docket fees under § 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under § 1828 of this title.

A bill of costs shall be filed in the[*8] case and, upon allowance, included in the judgment or decree.

Northern District Civil Local Rule 54 sets out procedures for awarding taxable costs and further delineates the types of costs taxable under Federal Rule of Civil Procedure 54(d). Civil Local Rule 54-3(a)(1) allows for “the Clerk’s filing fee” to be taxed “if paid by the claimant.” Civil Local Rule 54-3(f) allows for taxing of fees for masters and receivers. No other allowances for any type of filing fee is made under Civil Local Rule 54. Federal Rule of Civil Procedure 54(d)(2)(A) provides that a claim for non-taxable costs related to attorneys’ fees can be made by motion.

DISCUSSION

Plaintiff seeks two forms of relief: first, he asks the court to compel the discovery of certain documents for the purposes of challenging the clerk’s taxation of costs; second, he requests a review of the clerk’s taxation of costs. The court will review each of these requests.

1. Motion to Compel

Plaintiff seeks discovery of certain “scripts” he alleges that the government’s attorneys prepared for defendant Ira Feldman in advance of his deposition. He contends that production of the documents may establish that defendants’ attorneys knew that Feldman[*9]was likely to commit perjury before his deposition was taken.

Plaintiff moves pursuant to Federal Rule of Civil Procedure 34 for his requested discovery. Rule 34(a) states that:

[a]ny party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information . . . which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served.

Fed. R. Civ. P. 34(a). He also cites Federal Rule of Civil Procedure 45 governing subpoenas to support his request. Compelling discovery is inappropriate here because plaintiff has not made a formal discovery request pursuant to Rule 34 or subpoena under Rule 45. Furthermore, plaintiff has not properly served either on defendant. Compelling discovery is available only after a formal request–via request or subpoena–has been rejected by a party. See Fed. R. Civ. P. 34(c), 45. In his reply, plaintiff contends that his motion to compel “could be considered a request for production of documents by a party[*10] to this action.” Pl.’s Reply at 1. It is possible that plaintiff considers a motion to compel a proper request under Rule 34(c), but this court does not.

Second, defendant contends that there is no mechanism for discovery at this point in the litigation. Rule 54(d)(1) does not envision a discovery process as part of a request for review of taxation of costs. Fed. R. Civ. P. 54(d)(1)(“Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . .”). The text of the Rule is silent on whether discovery is permitted as part of the review of a bill of costs. While it may be unusual to seek post-trial discovery in challenging a bill of costs, it may be justified in extraordinary circumstances. This is not an extraordinary case such as to justify the discovery sought.

Finally, defendant states that it has no responsive documents to plaintiff’s request. It contends that such a request is baseless and further alleges that plaintiff’s counsel obtained information on the requested documents in a suspect manner. Plaintiff’s[*11] counsel, defendant contends, contacted Feldman without first contacting Feldman’s counsel and probed Feldman with questions about privileged communications. Moreover, Feldman subsequently denied any admissions he made in conversations with counsel. Bender Dec. P 2 (“In subsequent telephone calls Mr. Feldman reversed his admission and denied making the above statements.”).

Defendant has submitted declarations from the two lawyers responsible for preparing Feldman for his deposition. Both attorneys deny giving Feldman scripts. Kenney Dec. P 6, 8-14 (“I can state unequivocally that I have never given any witness, including Mr. Feldman, a written statement of ‘proposed answers.'”); McGinn Dec. P 5-6. Kenney also submits her personal records indicating that she did not stay at the hotel where plaintiff alleges that the deposition preparation took place. Kenney Dec. P 11, 12, Exh. A. The court is satisfied that there are likely no responsive documents to plaintiff’s request, were any such request properly made.

The motion to compel is DENIED.

1. Motion for Review of Taxation of Costs

Plaintiff seeks review of the clerk’s taxation of costs in the amount of $ 14,204.63 pursuant to Civil Local Rule 54-5.[*12]He argues that defendant’s unclean hands resulting from deliberate acts of misconduct in regard to the Feldman deposition entitle him to a denial of all costs. See Association of Mexican-Am. Educators v. Calif., 231 F.3d 572, 591 (9th Cir. 2000) (noting that the court may use its discretion to deny the award of costs to punish prevailing party misconduct).

Plaintiff argues that he is entitled to a reduction of costs because of an alleged contradiction between the Ninth Circuit and this court in the characterization of Feldman’s deposition testimony. In reviewing this court’s imposition of sanctions for the conduct of the government’s counsel at Feldman’s deposition, the Ninth Circuit described Feldman’s deposition testimony as a “series of incriminating, contradictory, and combative statements about his role in the CIA’s LSD project.” Ritchie v. United States, 451 F.3d 1019, 1024 (9th Cir. 2006)(footnotes omitted). Plaintiff contends that this statement by the Ninth Circuit in describing the events at trial “effectively overruled this court’s” conclusions that the Feldman’s statements were oblique at best. Pl.’s Mot. at 6. Plaintiff is incorrect. The Ninth Circuit not only did not[*13] effectively overrule this court, it affirmed the court’s conclusions about Feldman’s testimony, albeit with some reservations:

Although Feldman made a number of comments in his depositions suggesting that he was

involved in drugging Ritchie, the district court’s determination that Ritchie did not prove Feldman’s involvement is not clearly erroneous.

1. Plaintiff also bases his request for a reduction of costs on the fact that the court awarded him sanctions in the form of attorneys’ fees for the second deposition. While the court is empowered to reduce or refuse to tax costs where there is misconduct, any misconduct here has been sanctioned previously. To reduce costs would serve only to doubly penalize defendant. The fact that Ritchie waived the sanction in order to perfect his appeal is of no consequence.

Defendant notes that the clerk has already reduced its costs from $ 26,176.14 to $ 14,204.62. Plaintiff’s spurious allegations against defense counsel, mischaracterization of the Ninth Circuit’s findings, failure to properly serve defendant with a discovery request before filing a motion to compel discovery as well as his somewhat dubious conduct toward Feldman, a person of ailing[*14] health, suggest that plaintiff may well be the party deserving of sanctions. However, this case should find repose in finality and not rise up once more in post-trial, post-appeal reprises.

The motion for review of costs is DENIED.

CONCLUSION

Plaintiff’s motion to compel production is DENIED and the motion for review of costs is DENIED.

IT IS SO ORDERED.

Dated: August 3, 2007

MARILYN HALL PATEL

United States District Court Judge

Northern District of California

 

RICHARD T. ATHY, JESUS CHRIST v. U.S.A. GOVERNMENT, FOREIGN GOVERNMENTS, AS WELL

RICHARD T. ATHY, JESUS CHRIST v. U.S.A. GOVERNMENT, FOREIGN GOVERNMENTS, AS WELL

Civil Action No. 90-7035

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

1990 U.S. Dist. LEXIS 16726

December 5, 1990, Decided

December 6, 1990, Filed

 

CORE TERMS: forma pauperis, filing fee, leave to proceed, frivolous, refund

COUNSEL:[*1]RICARDO J. ATHY JESUS CHRIST, PRO SE, PHILADELPHIA, PENNSYLVANIA.

JUDGES:John P. Fullam, Senior United States District Judge.

OPINION BY: FULLAM

OPINION

MEMORANDUM AND ORDER

The Complaint filed by plaintiff in this action is plainly the product of a disturbed mind. It is handwritten, partly illegible, and makes no sense whatever (plaintiff apparently believes that he is Jesus Christ, and that he suffers from a “mind control bug” which frustrates his ability to cure all earthly diseases; he also evinces concern about World War III, which will devastate the planet in 1993).

Inasmuch as plaintiff paid a filing fee, it would ordinarily be appropriate to direct that summons issue, and that service be made, whereupon the defendants might file a motion to dismiss. In this case, however, the identity of a defendant is nowhere alleged (there is mention, in the caption, of “U.S.A.Government and Foreign Governments as well”), and plaintiff makes no claims against anyone.

Given plaintiff’s apparent inability to earn money, and his probable status as a Veterans Administration pensioner, it is reasonable to suppose that he would qualify for leave to proceed in forma pauperis. On that assumption, I will grant,[*2]for the time being at least ,in forma pauperis status, and will dismiss the Complaint as frivolous under 28 U.S.C. § 1915(d). The Clerk will be directed to refund the filing fee.

ORDER

AND NOW, this 5th day of December, 1990, it is ORDERED:

1. Plaintiff is granted leave to proceed in forma pauperis.

2. The Complaint is DISMISSED AS FRIVOLOUS,

3. The Clerk is directed to refund to plaintiff any filing fees or other payments received from plaintiff in this action.

 

STEVEN RAY PAYNE, Plaintiff(s), vs. CONTRA COSTA SHERIFF’S DEPT., Defendant(s).

STEVEN RAY PAYNE, Plaintiff(s), vs. CONTRA COSTA SHERIFF’S DEPT., Defendant(s).

No. C 02-2382 CRB (PR)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

2002 U.S. Dist. LEXIS 10686

June 10, 2002, Decided

June 10, 2002, Filed; June 11, 2002, Entered in Civil Docket

 

DISPOSITION:[*1]Plaintiff’s request to proceed in forma pauperis DENIED and complaint DISMISSED.

CORE TERMS: telepathy, frivolous, monetary relief, forma pauperis, governmental entity, factual allegations, irrational, incredible, torture, pierce, veil, memories

COUNSEL:Steven Ray Payne, Plaintiff, Pro se, San Quentin, CA.

JUDGES:CHARLES R. BREYER, United States District Judge.

OPINION BY: CHARLES R. BREYER

OPINION

ORDER OF DISMISSAL

(Docs # 3, 4& 7)

Plaintiff, while incarcerated at the Contra Costa County Jail in Martinez, California, filed this pro se civil rights complaint under 42 U.S.C. § 1983 alleging that the Contra Costa County Sheriff’s Department is using “telepathy/mind control” to harass and torture him. He was recently transferred to San Quentin State Prison and seeks leave to amend the complaint (doc # 7), which is granted.

In the operative amended complaint, plaintiff again alleges that the Contra Costa County Sheriff’s Department has violated his constitutional rights “by imposing telepathy mind control and allowing others to have access to [his] memories.” He specifically alleges, for example, that the Sheriff’s Department has allowed the “women’s module” to go through his memories and telepathically cause him to experience muscle cramps, panting, headaches and cardiovascular problems.

Plaintiff seeks injunctive and [*2]monetary relief, and leave to proceed in forma pauperis under 28 U.S.C. § 1915.

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988).

1. [*3]Analysis

Sections 1915 and 1915Aaccord judges the unusual power to pierce the veil of the complaint’s factual allegations and dismiss as frivolous those claims whose factual contentions are clearly baseless. See Denton v. Hernandez, 504 U.S. 25, 32, 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992). Examples are claims describing fantastic or delusional scenarios with which federal district judges are all too familiar. See Neitzke v. Williams, 490 U.S. 319, 328, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989). To pierce the veil of the complaint’s factual allegations means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff’s allegations. See Denton, 504 U.S. at 32. A finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.See id. at 32-33.

Plaintiff’s allegations that he has been subjected to various harassment and torture through the use of telepathy/mind control are factually frivolous under Denton.The allegations rise to the level of the [*4]irrational or the wholly incredible and accordingly will be dismissed under the authority of sections 1915 and 1915A. See id.

CONCLUSION

For the foregoing reasons, plaintiff’s request to proceed in forma pauperis (docs # 3& 4) is DENIED and the complaint is DISMISSED.

The Clerk shall close the file and terminate all pending motions as moot.

SO ORDERED.

DATED: June 10, 2002

CHARLES R. BREYER

United States District Judge