Opinion
6:15-CV-01132 (GTS/TWD)
09-28-2015
BRIAN SCOTT ORR, Plaintiff, v. UNITED STATES AIR FORCE, UNITED STATES DEPARTMENT OF JUSTICE, CHESTER JOHN MACIAG, Defendant.
APPEARANCES: BRIAN SCOTT ORR Plaintiff, pro se 25959039 LOMPOC Federal Correctional Institution Inmate Mail/Parcels 3600 Guard Road Lompoc, CA 93436-2705
APPEARANCES: BRIAN SCOTT ORR
Plaintiff, pro se
25959039
LOMPOC
Federal Correctional Institution
Inmate Mail/Parcels
3600 Guard Road
Lompoc, CA 93436-2705
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent Plaintiff Brian Scott Orr's pro se civil rights complaint, brought under 42 U.S.C. § 1983, together with an application to proceed in forma pauperis ("IFP Application") and Prisoner Authorization Form to the Court for review. (Dkt. Nos. 1 and 2.)
While the Prisoner Authorization Form (Dkt. No. 2 at 3) submitted by Plaintiff differs in some respects from the Inmate Authorization Form generally used in the Northern District of New York, i.e., it does not include language specifically authorizing the facility in which he is incarcerated to send certified copies of statement of his trust fund when requested by the Clerk, it does set forth Plaintiff's understanding of his obligation to pay the full amount of the filing fees and authorize the prison officials to "assess, collect and forward to the Court the full amount of these fees, in monthly payments based on the average of deposits to or balance in [his] prison trust account in accordance with 28 U.S.C. Section 1915." Id. In addition, the Certificate setting forth the sum plaintiff has on account, found at the bottom of the IFP Application used in the Northern District of New York is contained in the Prisoner Authorization Form submitted by Plaintiff. The Court finds that the IFP Application and Prisoner Authorization Form submitted by Plaintiff are adequate for a determination of Plaintiff's entitlement to proceed in forma pauperis solely with respect to the Court's initial review.
I. IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay " the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's IFP Application and Prisoner Authorization Form (Dkt. No. 2), the Court finds that he meets the standard and his IPF Application is granted solely for purposes of this initial review.
II. LEGAL STANDARDS FOR INITIAL REVIEW
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
III. ANALYSIS
A. Plaintiff's Complaint in this Action
Plaintiff has sued the United States Air Force, the United States Department of Justice, and Air Force Special Projects Chief, Chester John Maciag, in his complaint submitted for filing on September 21, 2015, and now before the Court for initial review. (Dkt. No. 1.) Plaintiff has alleged the following facts in his complaint:
4. THE DEPARTMENT OF DEFENSE INTELLIGENCE COMMUNITY (IC) KNOWINGLY, WITH INTENT TO KILL, USED BRIAN SCOTT ORR AS THE UNCONSENTING TEST SUBJECT OF AN ILLEGAL DIRECTED ENERGY EXPERIMENT, WHEN BRIAN ORR SURVIVED LONGER THAN CONVENIENT, ARFL-RIGB CHIEF MACIAG ORDERED ORR TO TAKE HIS OWN LIFE. MACIAG ALSO THREATENED ORR AND WORKED HARD TO DISCREDIT ORR STARTING RIGHT BEFORE THE TORTURE STARTED ON AUGUST 13, 2010. COL LAMAR PARKER AND LT COL WILLIAM GREGORY ALSO PLAYED A CONSPIRATORIAL ROLE AND WERE ACTIVELY INVOLVED IN PSYCHOLOGICAL OPERATIONS AGAINST ORR. PHYSICAL DAMAGE WAS APPLIED TO ORR NOT BY DIRECT CONTACT BUT BY TECHNOLOGICAL MEANS. REMOTE APPLICATION OF SAID DAMAGE WAS ALLEGEDLY FROM AIR FORCE/NATIONAL RECONNAISSANCE OFFICE SPY RADAR TECHNOLOGY. THE MAGNITUDE AND DURATION OF PAIN CAN ONLY BE ACCURATELY DESCRIBED AS TORTURE AND CAN ONLY BE UNDERSTOOD BY OTHER SURVIVORS OF CRIMES AGAINST HUMANITY. MEDICAL DOCUMENTATION THAT YOU WILL READ IN THE
EXHIBITS STATE ORR'S INJURIES WERE MICROWAVE RADIATION INDUCED. THE INJURIES ARE IRREVERSIBLE AND ARE SYSTEM WIDE. MOST DAMAGE IS TO ORR'S NERVOUS SYSTEM (BRIAN (sic) AND PERIPHERAL NERVES). THE INTENSE ELECTROMAGNETIC RADIATION ALSO DAMAGE ORR'S HEART AND CAUSED A MYOCARDIAL INFARCT AND WEAKENED OUTPUT. THE DAMAGE TO ORR'S ENDOCRINE SYSTEM HAS LEFT HIM INFERTILE (UNABLE TO BEAR CHILDREN). ORR LEFT AFRL ROME, NY ONLY LATER TO BE STALKED AND TORMENTED BY FBI NATIONAL SECURITY DIVISION AGENTS. FAMILY MEMBERS WERE ALSO STALKED, HARASSED, AND HAD THEIR COMPUTERS HACKED WITHOUT COURT ORDER. ORR'S ORDEAL WAS DOCUMENTED IN 2012 IN INQUIRIES TO SENATE MEMBERS (FEINSTEIN), A FEINSTEIN DIRECTED INVESTIGATION OF THE AIR FORCE OSI, FBI, AND POLICE REPORTS. IN 2012 THE WEBSITE HTTP://USGOVT-ATROCITIES.COM WAS PUT ONLINE TO EXPOSE THE HEINOUS CRIMES AGAINST ORR.Id. at ¶ 4.
Plaintiff seeks money damages for medical bills; permanent physical damage; government theft and property damage; stalking and intimidating Orr and his family; an 2011 assassination attempt in Arizona; hacking of Orr's families' home computer networks and phones without court order; economic loss for lost wages; and damages for PTSD. Plaintiff seeks monetary damages totaling $2,713,700.00. Id. at ¶ 5. B. Plaintiff's Complaint in Orr v. US Air Force , et al., United States District Court, C.D. Cal., No. 2:15-cv-01800
Prior to submitting his complaint for filing in this action, Plaintiff commenced an action against the same three Defendants asserting the identical claim and seeking essentially the same damages in the United States District Court, C.D. Cal. (See Orr v. US Air Force, et al. ("Orr I"), No. 2:15-cv-01800-MMM-MRW, Dkt. No. 1.) In his complaint in Orr I, Plaintiff alleged:
5. THE DOD INTELLIGENCE COMMUNITY (IC), KNOWINGLY WITH INTENT TO KILL, USED BRIAN SCOTT ORR AS THE UNCONSENTING TEST SUBJECT IN AN ILLEGAL TORTURE EXPERIMENT. WHEN ORR SURVIVED LONGER THAN EXPECTED, ARFL-RIGB BRANCH CHIEF MACIAG ORDERED ORR TO TAKE HIS OWN LIFE. MACIAG ALSO THREATENED ORR AND HAD CAPT BRIAN SESSLER TAKE RR INTO THE COTF TO DISTRACT ORR TO MANAGE AN ILLEGAL IMPLANT ON ORR'S IPHONE. OTHER PSY-OP PARTICIPANTS INCLUDED AIR FORCE INTEL OFFICER WILLIAM GREGORY AND COLONEL LAMAR PARKER. PHYSICAL TORTURE WAS APPLIED BY HIGH POWER RADAR AND NOT NECESSARILY CONFINED TO ROME, NY. MEDICAL DOCUMENTATION STATES ORR'S INJURIES WERE MICROWAVE RADIATION INDUCED AND IRREVERSIBLE. DAMAGE IS TO ORR'S BRAIN, NERVOUS SYSTEM, AND HE IS INFERTILE. ORR LEFT AFRL TO BE STALKED AND TORMENTED BY DOJ AGENTS. FAMILY MEMBERS WERE ALSO STALKED AND THEIR COMPUTERS HACKED ALL WITHOUT COURT ORDER. ORR'S ORDEAL WAS DOCUMENTED IN 2012 BY SENATORIAL INQUIRIES, AFOSI INVESTIGATIONS, POLICE REPORTS, AND, OF COURSE, HTTP://USGOVT-ATROCITIES.COM. EVIDENCE CAN BE FOUND AT HTTP://TINYURL.COM/SAVEBRIANSCOTT. ANOTHER WEBSITE THAT BRIAN SCOTT IS IN PRISON AS RETALIATION FOR SPEAKING OUT: HTTP://HUMANCIVILRIGHTSFIRST.ORG.Id. at ¶ 5.
In Orr I, the court took judicial notice that Plaintiff was convicted of theft and computer hacking charges related to his former employment at the Air Force base. (Orr I, Dkt. No. 3 at 2 n.1.); see also United States v. Orr, CR-13-872 (C.D. Cal.)
In Orr I, Plaintiff sought money damages for medical bills; permanent brain and nervous system damage; government theft, property damage and vandalism; stalking Orr and his family; failed assassination attempts in Arizona and by repeated torture; hacking without court order; being forced to leave the Country after his term of imprisonment to escape persecution; interference with employment; loss of federal assistance; and damages for PTSD. Id. at ¶ 6. Plaintiff sought monetary damages totaling $2,713,700.00. Id.
C. Res Judicata
Orr I was dismissed on initial review pursuant to 28 U.S.C. § 1915(e)(2)(B) on the grounds that the action was frivolous and failed to state a claim upon which relief could be granted. (Orr I, Dkt. No. 3 at 1-2.) On March 18, 2015, the Hon. Michael R. Wilner, M.J., wrote that "Plaintiff's claims are too fanciful to warrant service on any of the named defendants" and recommended dismissal. Id. at 2. On March 19, 2015, the Hon. Margaret M. Morrow, U.S. District Judge, ordered that Plaintiff's IFP Application be denied and that the case be dismissed. Id. at 2.
"The doctrine of res judicata, or claim preclusion, holds that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Monahan v. New York City Dep't of Corr., 214 F.3d 275, 284-85 (2d Cir. 2000) (internal quotation marks and citation omitted). Res judicata precludes a party from asserting a claim in subsequent litigation if "(1) the previous action involved an adjudication on the merits; (2) the previous action involved plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been raised in the prior action. Id.
A district court may sua sponte raise the issue of res judicata. See Rollock v. LaBarbera, 383 F. App'x 29, 30 (2d Cir. 2010) (citing Scherer v. Equitable Life Assurance Soc'y of U.S., 347 F.3d 394, 398 n.4 ("[A] court is free to raise [the] defense [of res judicata] sua sponte")). In Denton v. Hernandez, 504 U.S. 25, 34 (1992), the Supreme Court held that, while a dismissal under § 1915(e) "does not prejudice the filing of a paid complaint making the same allegations," it "could, however, have a res judicata effect on frivolousness determinations for future in forma pauperis petitions." In Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002), the Second Circuit agreed with the reasoning of various circuits that had found res judicata applicable to subsequent actions brought in forma pauperis. See also McRae v. Norton, No. 12-CV-1537 (KAM), 2012 WL 1268295, at * 3, 2012 U.S. Dist. LEXIS 52494, at * 8 (E.D.N.Y. April 13, 2012) ( finding res judicata applied to plaintiff's in forma pauperis action asserting the same claims as his previous action which had been dismissed pursuant to § 1915(e)).
Copies of the unpublished decision will be provided to Plaintiff in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). --------
Orr I and the present action involve the same parties, and the facts alleged by Plaintiff and claims asserted in the two actions are virtually identical. Furthermore, Plaintiff seeks to bring this action in forma pauperis. Because Orr I was dismissed pursuant to § 1915(e)(2)(B) on the grounds that it was frivolous and failed to state a claim, the Court finds, based upon the Denton and Cieszkowska decisions, that this action is barred under the doctrine of res judicata.
"When an in forma pauperis action is res judicata, it fails to state a claim upon which relief may be granted and thus § 1915(e)(2)(B) compels its dismissal." Lopez v. Jet Blue Airways, No. 12-CV-0057 (JG), 2012 WL 213831, at * 1, 2012 U.S. Dist. LEXIS 8162, at * 2 (E.D.N.Y. Jan. 24, 2012). Therefore, the Court recommends that Plaintiff's complaint be dismissed with prejudice pursuant to § 1915(e)(2)(B)(ii).
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED; and it is
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE upon initial review under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on the grounds that it is barred under the doctrine of res judicata; and it is further
ORDERED, that the Clerk send Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein, in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: September 28, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge