Selevan v. Chertoff

Full title: JOSEPH ARYEN SELEVAN, Plaintiff, v. MICHAEL CHERTOFF, THE USA DEPT. OF…

Court: United States District Court, W.D. New York

Date published: Oct 4, 2006

06-CV-0616A (W.D.N.Y. Oct. 4, 2006)

Opinion

06-CV-0616A.

October 4, 2006

MEMORANDUM and ORDER

JOHN ELFVIN, Senior District Judge

Plaintiff, Joseph Aryen Selevan, has filed a pro se action and application to proceed in forma pauperis. The complaint, which is set forth in a letter, muses about a number of different things including, but not limited to, how he had an earlier case in Norfolk, Virginia alleging violations of "RICO" that he is re-opening here because of new evidence including Postal Service and ATM receipts, and that the reason he is filing this action against the Department of Homeland Security is that the Office of the Prime Minister of Israel has been obstructing justice and using its influence to perpetrate a "RICO Network." (Docket No. 1, Complaint). The complaint also states that plaintiff was on the street one night and the Buffalo Police Department "indicated that they were using the power of government radiation coming from the street lights signaling to [him] with a spotlight," and that there are people in this country and Israel who are trying to use the Department of Homeland Security "for their own needs." The complaint, like all of plaintiff's other actions and letters recently filed in this Court, are largely incomprehensible and wholly delusional.¹ For the reasons discussed below, plaintiff's application to proceed in forma pauperis is granted and the complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

1 The other actions — Selevan v. USA Dept. of Defense, et al., 06-CV-0574A (filed 08/25/06); Selevan v. U.S. Atty. General Gonzalez, et al., 06-CV-0591A (filed 08/31/06); Selevan v. Pataki et al., 06-CV-0635A (filed 09/20/06) — are equally frivolous and delusional, as are the dozens of letters plaintiff has submitted to the Court over the last few weeks.

DISCUSSION

Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), plaintiff is granted permission to proceed in forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if, at any time, the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. Based on its evaluation of the complaint, the Court finds that plaintiff's claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because they are wholly frivolous and predicated on indisputably baseless legal theories.

DISCUSSION

The same statute that allows a litigant to commence a civil or criminal action in federal court in forma pauperis "authorizes federal courts to dismiss a claim filed in forma pauperis `if satisfied that the action is frivolous or malicious.'" Neitzke v. Williams, 490 U.S. 319, 324 (1989), citing to what is now 28 U.S.C. § 1915(e).

Section 1915[e] is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suits and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit *** and claims of infringement of a legal interest which clearly does not exist ***. Examples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.

Id. at 327-28, 1833 (citation omitted). The U.S. Supreme Court elaborated on this "power to pierce the veil of the complaint's factual allegations" a few years later:

[T]he § 1915[e] frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed facts. *** [A] court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," a category encompassing allegations that are "fanciful," "fantastic," and "delusional." As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.

Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke, 490 U.S. at 327).

Here, the complaint is precisely the type of "fantastic," "delusional" and "incredible" allegations that warrant dismissal as factually frivolous. Plaintiff's complaint is nothing more than the sad, delusional thoughts of an individual who is simply in the wrong forum to obtain the assistance he so obviously seems to need and it must be dismissed as frivolous.

Accordingly, this action is hereby dismissed under 28 U.S.C. § 1915(e)(B)(i). Moreover, while the usual practice is to allow leave to replead a deficient complaint, see Fed.R.Civ.P. 15(a); see also Ronzani v. Sanofi, S.A., 899 F.2d 195, 198 (2d Cir. 1990), especially where a complaint has been submitted pro se, Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994), such leave may be denied where amendment would be futile, such as in this case.

CONCLUSION

Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a). Accordingly, plaintiff's request to proceed in forma pauperis is granted and, for the reasons discussed above, the complaint is dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i).

The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.

ORDER

IT HEREBY IS ORDERED, that plaintiff's request to proceed in forma pauperis is granted;

FURTHER, that the complaint is dismissed with prejudice; and

FURTHER, that leave to appeal to the Court of Appeals as a poor person is denied.

SO ORDERED.