Opinion
3:24-cv-00697-SB
05-10-2024
EUGENIA SONG, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, United States Magistrate Judge
Plaintiff Eugenia Song (“Song”) filed this action against the Central Intelligence Agency (“CIA”) on April 24, 2024.Song also filed an application to proceed in forma pauperis (“IFP”). The Court's review of Song's IFP application reveals that Song is unable to afford the filing fee. The Court therefore grants Song's IFP application. For the reasons explained below, however, the Court recommends that the district judge enter judgment dismissing this action, with prejudice, because Song's complaint is frivolous, duplicative, and barred by res judicata.
Also on April 24, 2024, Song filed another complaint against the CIA. See Complaint at 1-6, Song v. CIA, Case No. 3:24-cv-00698-SB (D. Or. Apr. 24, 2024), ECF No. 1. The Court addresses that complaint in a separate opinion.
LEGAL STANDARDS
The IFP statute, which is codified at 28 U.S.C. § 1915, provides, in relevant part, that a district “court shall dismiss [a plaintiff's IFP complaint] 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); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that Section “1915(e) applies to all [IFP] complaints, not just those filed by [adults in custody]”). Section 1915(e) “authorizes ‘sua sponte dismissals of [IFP] cases[.]'” Hebrard v. Nofziger, 90 F.4th 1000, 1006-07 (9th Cir. 2024) (citing Jones v. Bock, 549 U.S. 199, 214 (2007)).
A district court may dismiss an IFP complaint if it is frivolous and duplicative of the plaintiff's previously filed actions. For example, in Williams v. Paramo, 830 Fed.Appx. 981 (9th Cir. 2020), the self-represented plaintiff filed a 42 U.S.C. § 1983 action alleging, among other things, Eighth Amendment and conspiracy claims against prison officials. Id. at 981-82. The plaintiff appealed after the “district court sua sponte dismissed with prejudice [the plaintiff's] amended complaint for failure to state a claim and as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).” Id. The Ninth Circuit held that the district court did not err in dismissing the plaintiff's Eighth Amendment claims or related conspiracy claims. Id. at 982. In support, the Ninth Circuit explained that “[i]n connection with its preliminary screening” under the IFP statute, “the district court permissibly took judicial notice of multiple actions in which [the plaintiff] unsuccessfully pursued claims predicated on [food poisoning-related] allegations . . . and concluded that the poisoning claim alleged in the amended complaint in [the plaintiff's current] action was duplicative and frivolous.” Id. The Ninth Circuit added that it was appropriate to dismiss “without leave to amend because further amendment would have been futile.” Id.
A district court may also dismiss an IFP complaint on res judicata grounds. For example, in Beaton v. Amazon.com, Inc., No. 21-15511, 859 Fed.Appx. 784 (9th Cir. 2021), the selfrepresented plaintiff, who brought a “42 U.S.C. § 1983 action alleging constitutional claims,” appealed the district court's dismissal under Section 1915(e) based on res judicata. Id. The Ninth Circuit held that “[t]he district court properly dismissed [the] action as barred by res judicata because [the plaintiff's] claims were raised or could have been raised in [the plaintiff's] prior federal action between the parties or their privies that resulted in a final judgment on the merits.” Id.
It is well settled that courts “have a duty to read a pro se complaint liberally,” Sernas v. Cantrell, 857 Fed.Appx. 400, 401 (9th Cir. 2021), and that “[self-represented] litigants should be treated with ‘great leniency' when evaluating compliance with ‘the technical rules of civil procedure.'” Seals v. L.A. Unified Sch. Dist., 797 Fed.Appx. 327, 327 (9th Cir. 2020) (quoting Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986)). As the Ninth Circuit has explained, there is a “good reason” that courts “afford leeway to [self-represented] parties, who appear without counsel and without the benefit of sophisticated representation: ‘Presumably unskilled in the law, the [self-represented] litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel.'” Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th Cir. 2023) (quoting Lopez, 203 F.3d at 1131).
DISCUSSION
The Court recommends that the district judge dismiss Song's complaint with prejudice because the IFP complaint and exhibits that Song has filed in this district suggest that the present action is frivolous, duplicative, and barred by the doctrine of res judicata.
I. SONG'S LITIGATION HISTORY
A. Song's Current Complaint
Song, a Texas resident, brings this action against the CIA and cites civil suit code 440 (i.e., “Other Civil Rights”) as her basis for invoking the Court's federal question jurisdiction under 28 U.S.C. § 1331. (See Compl. at 1-3, 6, ECF No. 2, stating that Song resides in Fort Worth, Texas, referring to the defendant as the CIA “of [the] United States” and “CIA, litigation division,” and invoking federal question jurisdiction based on nature of the “suit code 440” on the civil cover sheet; see also Civ. Cover Sheet at 1, ECF No. 2-1, checking the box for nature of the suit code 440 and listing “Dallas, Texas” as the “County Residence of [the] First Listed Plaintiff”).
Song's complaint indicates that she is seeking “$0[i.e.,] no monetary claim” for relief and “control of [a CIA] program.” (Compl. at 5.) In terms of her substantive factual allegations, Song's complaint directs the Court to “please see [an] attached letter.” (Id. at 4.) Song's letter describes the basis of her civil rights claim against the CIA. (Id. at 6.) Song alleges that she is suing the CIA for its “unwanted participation in a secret program,” Columbia University professor Peter Coleman (“Coleman”) started the “psychological research program” in question, Song's former supervisor, Robert Henkel (“Henkel”), was the individual who “originally funded” the program, and “an unknown manager in the military” is “currently manag[ing]” the program. (Id.) Song also alleges that the program and its managers have “trespassed with their software, engaged in criminal abuse of [Song's] body, and conducted experiments which resulted in changed personalities and torture.” (Id.) Further, Song alleges that Coleman has been “acting as if he is screenwriting for guest actors,” Coleman has “hired temporary personnel in California who are voice-over actors for [purposes of] identity theft [via] this program,” and the actors are “impersonating [Song] in many circumstances.” (Id.) Thus, Song seeks “court control over [her] own CIA[.]” (Id.)
B. Song's Previous Actions
In recent years, Song has filed numerous complaints, all of which appear to involve related allegations about harm that Song allegedly suffered because of a Columbia University psychological program or project and related military technology.
The Court may take judicial notice of matters of public record, such as court filings and records. SeeUnited States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records[.]”) (citations omitted); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”); see also FED. R. EVID. 201(c)(1) (stating that “[t]he court . . . may take judicial notice on its own”); Blyden v. Navient Corp., No. 14-cv-02456, 2016 WL 6601658, at *1 n.4 (C.D. Cal. Feb. 16, 2016) (“[T]he Court takes judicial notice of these documents on its own motion as they are court filings in the public record and are related to the matter before the Court.”) (simplified).
1. Summary of Previous Actions
This is a list of Song's federal cases of which the Court is aware:
• Song v. Burke, No. 3:23-cv-00349-JR, 2023 WL 4424759, at *1-5 (D. Or. May 3, 2023) (Song I) (reflecting that after dismissed the initial IFP complaint filed on March 10, 2023, the court dismissed Song's amended complaint, which “suffer[ed] from many of the same defects as her initial complaint”), findings and recommendation adopted in part, 2023 WL 4249212, at *1-2 (D. Or. June 29, 2023);
• Song v. Landers, No. 3:23-cv-00372-YY, 2023 WL 4535179, at *1-6 (D. Or. May 2, 2023) (Song II) (noting that after Song filed suit on March 15, 2023, the court dismissed Song's initial, first amended, and second amended IFP
complaints), findings and recommendation adopted 2023 WL 4535165, at *1 (D. Or. July 12, 2023);
• Song v. Columbia Univ., No. 3:23-cv-00407-HZ, 2023 WL 3004836, at *1-2 (D. Or. Apr. 18, 2023) (Song III) (dismissing Song's initial March 21, 2023 IFP complaint against Columbia University and Coleman, and noting that Song alleged that a Columbia University affiliate “routinely engage[d] in psychology research of . . . faculty and incoming members of the student body,” Columbia University had “routine contact with the United States Army for the purposes of this research,” and Song “suffer[ed] prolonged effects of this research conducted on her many years ago when she was a student”);
• Song v. Coleman, No. 3:23-cv-00407-JR, 2023 WL 4275389, at *1-5 (D. Or. May 3, 2023) (Song III) (dismissing Song's amended complaint), findings and recommendation adopted in part, 2023 WL 4267435, at *1-2 (D. Or. June 29, 2023);
• Song v. U.S. Gov't, No. 3:23-cv-00573-JR, 2023 WL 4535193, at *1-3 (D. Or. June 7, 2023) (Song IV) (noting that after the court dismissed the initial IFP complaint that Song filed on April 18, 2023, Song filed her “amended complaint and a number of separately docketed supporting ‘Exhibits,'” all of which the court dismissed), findings and recommendation adopted, 2023 WL 4535167, at *1 (D. Or. July 12, 2023);
• Song v. Coleman, No. 1:23-cv-04526, 2023 WL 4409990, at *1 (S.D.N.Y. June 1, 2023) (Song V) (dismissing the complaint Song filed against Coleman on May 30, 2023, because Song did not pay the filing fee or file an IFP application); and
• Song v. Columbia Univ., No. 1:23-cv-04532, 2023 WL 4409989, at *1 (S.D.N.Y. June 1, 2023) (Song VI) (dismissing the complaint that Song filed against Columbia University on May 30, 2023 because Song did not pay the filing or file an IFP application).
The judge who issued the initial April 18, 2023 decision in Song III (i.e., Case No. 3:23-cv-00407) reassigned the case before a different judge issued the second decision on May 3, 2023.
Song filed another case in the Southern District of New York on June 5, 2023, see Complaint at 1-3, Song v. Coleman, No. 1:23-cv-04740-LTS (S.D.N.Y. June 5, 2023), ECF No. 1, which the court dismissed as duplicative of Case No. 1:23-cv-04526-LTS (Song V) on June 13, 2023. See Order of Dismissal at 1-2, Song v. Coleman, No. 1:23-cv-04740-LTS (S.D.N.Y. June 13, 2023), ECF No. 3.
Song also filed two new cases in the Southern District of New York on April 1, 2024, and April 8, 2024, against Emily Hoch (“Hoch”) of the Rand Corporation. See Complaint at 1-6, Song v. Hoch, No. 1:24-cv-02532-LTS (S.D.N.Y. Apr. 1, 2024), ECF No. 1; Complaint at 1-10, Song v. Hoch, No. 1:24-cv-02739-LTS (S.D.N.Y. Apr. 8, 2024), ECF No. 1. Song alleges that Hoch is using military computer technology or a militarized computer weapon to assault and spread misinformation about Song, and that Coleman is Hoch's co-conspirator and military program supervisor.
These courts dismissed Song's cases not long after she filed them. In multiple cases, Song repeatedly failed to cure deficiencies that the courts previously identified, or did not even attempt to do so.
2. Song IV
Song IV in particular is instructive here. In that case, Song filed an IFP complaint against the “U.S. Government” and an individual named Bruce Newsome (“Newsome”), who allegedly resided in San Diego County, California. 2023 WL 4535193, at *1. Song's amended complaint included “vague” allegations about an “awful” experience that she had with the CIA, “six hundred family CIAs in existence in the country,” and a “program” that Newsome designed, which at one point was called “Project Gorgeous” and located at a Navy base in San Diego County. 2023 WL 4535193, at *1-2 (simplified). Song's amended complaint also reflected that her “prayer for relief [was] to be out of th[e] program” given that she had “no clue why [she was] [t]here in the first place.” Id. at *1 (brackets omitted). Furthermore, the exhibits that Song filed in support of her amended complaint consisted of, among other things: (1) a list of individuals and entities that “allegedly have access to military technology,” (2) a “list of purported wrongdoers,” including a co-worker (Henkel), a “Dr. Coleman” (i.e., Coleman, who works at Columbia University), and “Bruce Newsome of the U.S. Army,” (3) Song's “records requests to the National Security Division, Department of Justice and U.S. National Central Bureau-Interpol” regarding Newsome and Project Gorgeous, (4) a summary of Song's “[r]elated [c]ases” from this district, and (5) “documents from [Song's] other cases, . . within and outside this [d]istrict.” Id. at *1 n.1 (simplified).
Notably, Song's exhibits also included an April 19, 2023 letter from a CIA information and privacy coordinator regarding Song's March 29, 2023 “letter requesting records on [her]self.” See Exhibits to Amended Complaint at 9-10, Song v. U.S. Gov't, No. 3:23-cv-00573-JR (D. Or. May 27, 2023), ECF No. 20 (emphasis omitted). The privacy coordinator informed Song that pursuant to federal regulations, Song needed to provide additional “identifying information . . . before [the CIA could] effectively search [its] files . . . [and] begin processing [her] request.” Id. at 9. The privacy coordinator also explained that Song could “submit any additional information [that she] wish[e]d to help [the CIA] ensure that [its] search [was] as comprehensive and accurate as possible,” the CIA would not be providing copies of “correspondence and related documents” from any previous requests for information that it may have received from Song, and the CIA would hold Song's “request [open] for 45 business days from the date of [the April 19, 2023] letter pending receipt of the required information” from Song. (Id. at 10.)
Song also alleged in her exhibits that a “board-certified psychiatrist cleared [Song] of any mental health problems in advance” of the events in question, Coleman's “[r]esult [of] schizophrenia” was “not true,” Song's case concerns a national program that Columbia University's faculty started in 2014, and “Coleman received the Pope's CIA key[.]” Id., ECF No. 14. Additionally, Song's exhibits included a timeline that she purportedly submitted in support of a request for a restraining order to a California state court. Id., ECF No. 22-2 at 2. The timeline includes allegations about “mouth burns” that Song received from “the technology, [and] Bruce Newsome,” a voicemail that Song received from Newsome stating that Song “‘may not talk to anybody and allowing 1 phone call per day' via [Newsome's] military computer database,” which prompted Song to “phone[] 911,” and threatening voicemails that Song received. Id.
In an opinion dated June 7, 2023, the magistrate judge, who previously granted Song's application to proceed IFP, recommended that the district judge dismiss Song's amended complaint and the numerous exhibits that Song filed in support of her amended complaint. See 2023 WL 4535193, at *1-3. The magistrate judge noted that she had already advised Song that a Freedom of Information Act (“FOIA”) action “cannot be maintained against private individuals or the entire Government of the United States,” and therefore “to the extent the amended complaint [could] be construed as alleging a FOIA claim, [Song could not] proceed against the named defendants.” Id. at *2.
The magistrate judge also emphasized that Song's “amended complaint fail[ed] to allege any connection to the State of Oregon,” and “[a]s described at length in regard to [Song's] prior pleadings across her lawsuits, venue must be proper in order for a particular case to proceed in the selected forum.” Id. at *2 (citing Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)). The magistrate judge explained that Song failed to establish that venue was proper in the District of Oregon:
Although the Court previously identified these deficiencies, [Song] has not attempted to cure them via her amended complaint, which is wholly silent as to where (and when) the underlying events occurred. Moreover, [Song's] “Exhibits” make clear that she has never resided in Oregon, sought education from an Oregon-based institution, or performed work for an Oregon-based company, and the only individually named defendant resides in California. See Pl.'s Exhibits (docs. 17-18) (listing plaintiff's residences, educational institutions, and employers and their locations from 2000 through 2022); see also Pl.'s Notice of Change of Address (doc. 15) (plaintiff requesting electronic correspondences in lieu of paper copies, as the designated address in Fort Worth, Texas, is “her school” which “has . . . limited mailroom operation[s]” during the summer). In sum, due to the dearth of well-plead facts, it is impossible for the Court to reasonably infer that plaintiff's claims are plausible and fall within the statute of limitations, or that venue in this District is proper.Id.
For these reasons and others, the magistrate judge recommended that the district judge dismiss Song's amended complaint without prejudice and advise Song that if she failed timely to amend her complaint within thirty days, the district judge would dismiss the case with prejudice. Id. at *3.
In an Order dated July 12, 2023, the district judge noted that Song did not file any objections and adopted the magistrate judge's opinion in full. See 2023 WL 4535167, at *1. The district judge advised Song that she could “file an amended complaint by August 11, 2023 that complies with the Federal Rules of Civil Procedure and [the magistrate judge's opinion],” and [f]ailure to file an amended complaint by August 11, 2023 [would] result in the dismissal of [the] action with prejudice.” Id. Song did not file an amended complaint before or after the August 11, 2023 deadline, or otherwise attempt to cure the deficiencies identified in the magistrate judge's opinion. Accordingly, on August 18, 2023, the district judge entered a judgment dismissing Song's action with prejudice. See Judgment at 1, Song v. U.S. Gov't, No. 3:23-cv-00573-JR (D. Or. Aug. 18, 2023), ECF No. 27.
3. Song II
Song II was comparable to Song IV in many respects. In Song II, the magistrate judge explained that Song had received “multiple attempts to cure the deficiencies in her complaints but ha[d] failed to do so,” and recommended that the district judge dismiss Song's second amended complaint without prejudice. 2023 WL 4535179, at *1. The magistrate judge observed that Song's federal claims “stem[med] from her belief that a military weapon-grade intelligence tool ha[d] been accessing her computer and emails since she resigned from a graduate teaching program at Columbia University in 2013.” Id. at *2. The magistrate judge also observed that Song alleged, among other things, that (1) Henkel, who Song identified as a former co-worker and named as a defendant, “wired approximately $800,000 to Peter Coleman, a professor at Columbia University to facilitate the illicit use of this military technology on [Song's] electronic communication[s],” (2) Henkel and defendant John Landers (“Landers”) were “in contact” before Landers “hired a private detective, Bruce Newsome, to take pictures of [Song's] home computer for a small fee of approximately $15,000,” and (3) Henkel “colluded” with defendant David Dowling, a California business owner, on the “military weapon-grade intelligence tool” at issue. Id.
The magistrate judge explained that Song failed plausibly to allege a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), because Song made “only vague and confusing allegations as to how and when defendants ‘colluded' to use military technology to access her electronic communication[s].” Id. at *2 (simplified). The magistrate judge further explained that Song “failed to establish that venue is proper in this district.” Id. at *6 (citing 28 U.S.C. § 1391(b)). In support of this finding, the magistrate judge observed that Song previously “alleged vaguely that a ‘substantial part of the events or omissions giving rise to this claim occurred in this district,'” and despite receiving an opportunity to amend and explain the basis of this allegation, Song “still fail[ed] to offer details showing that venue [was] proper in this district, even assuming [Song's] claims [were] properly pled.” Id. (citation omitted). For these reasons and others, the magistrate judge recommended that the district judge dismiss Song's second amended complaint, without prejudice, “[b]ecause [she] failed to allege a valid claim for relief and ha[d] failed to establish subject matter jurisdiction, personal jurisdiction, and venue[.]” Id.
In an Order dated July 12, 2023, the district judge adopted in full the magistrate judge's opinion over Song's objections. See 2023 WL 4535165, at *1. The district judge explained that Song's objections did not undermine the magistrate judge's recommendation with respect to Song's failure to establish venue and Song's request for “additional time due to a pending [FOIA] request pertaining to [her RICO] claim” did not “address the pleading deficiencies outlined” in the magistrate judge's previous orders and opinion. Id. The district judge dismissed Song's second amended complaint, without prejudice, because she “ha[d] failed to allege a valid claim for relief and ha[d] failed to establish subject matter jurisdiction, personal jurisdiction, and venue.” Id.
4. Song I and Song III
Song achieved similar results in Song I and Song III. In Song I, the district judge adopted the magistrate judge's recommendation to dismiss Song's amended complaint on the grounds that she failed to state a claim and establish that venue was proper in this district. See 2023 WL 4249212, at *1-2. The district judge explained that if Song “believe[d] she [could] cure the defects identified . . . in the [magistrate judge's opinion] and [the district judge's] Order dated March 21, 2023, [Song could] file a second amended complaint within 30 days of [the district judge's June 29, 2023] Order.” Id. at *2. Furthermore, the district judge advised Song that “[f]ailure to file an amended complaint by that date [would] result in the [district judge] entering a judgment dismissing [the] case without prejudice, but without leave . . . to refile in this [c]ourt.” Id. Song did not attempt to cure the deficiencies before or after the amended pleading deadline, and therefore the district judge entered a judgment dismissing the action “without prejudice, but without leave to refile in this case.” Judgment at 1, Song v. Burke, No. 23-cv-00349-JR (D. Or. Aug. 4, 2023), ECF No. 24.
The outcome was the same in Song III. The district judge adopted the magistrate judge's recommendation to dismiss Song's amended complaint on the grounds that she failed to state a claim and establish that venue was proper in this district. See 2023 WL 4267435, at *1. The district judge explained that if Song “believe[d] she [could] cure the defects identified [in the magistrate judge's opinion], [Song could] file a second amended complaint within 30 days of [the district judge's June 29, 2023] Order.” Id. Furthermore, the district judge advised Song that “[f]ailure to file an amended complaint by that date [would] result in the [district judge] entering a judgment dismissing [the] case without prejudice, but without leave to refile in this [c]ourt.” Id.Song did not attempt to cure the previously identified deficiencies, and thus the district judge entered judgment on August 4, 2023, dismissing the action “without prejudice, but without leave to refile in this case.” Judgment at 1, Song v. Columbia Univ., No. 23-cv-00407-JR (D. Or. Aug. 4, 2023), ECF No. 25.
II. DISPOSITION
The Court recommends that the district judge dismiss this case with prejudice because Song's complaint, coupled with the complaints and exhibits that Song has previously filed in this district, demonstrate that this case is frivolous and duplicative. The Court also recommends that the district judge dismiss this action with prejudice because it is barred by res judicata.
1. Factually Frivolous Actions
The district judge should dismiss Song's complaint as “frivolous” under § 1915(e)(2). See Williams, 830 Fed.Appx. at 981-82 (affirming the district court's decision to dismiss the plaintiff's food poisoning-related claims sua sponte and with prejudice because they were frivolous and duplicative of multiple actions in which the plaintiff unsuccessfully pursued claims predicated on such matters). A court may not dismiss a plaintiff's action “simply because the court finds the plaintiff's allegations unlikely[.]” Valenzuela v. Ryan, 623 Fed.Appx. 496, 496-97 (9th Cir. 2015) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)). A court, however, may dismiss a plaintiff's action as factually frivolous “if the facts alleged are clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional.” Id. (quoting Denton, 504 U.S at 32-33).
It is clear at this early stage of the litigation that Song's factual allegations are not simply unlikely; rather, Song's factual allegations are baseless, as they rise to level of fanciful, fantastic, and delusional. Song's allegations, which are largely duplicative of those that she made in past cases, concern (1) her participation in a “secret” psychological “research program,” which the CIA and/or military controls, uses “software” to engage in the “criminal abuse of [Song's] body” and “identity theft,” and “conduct[s] experiments . . . result[ing] in changed personalities and torture,” and (2) Coleman “screenwriting for guest . . . voice-over actors” who are “impersonating [Song].” (Compl. at 6.) Considering the multiple actions in which Song unsuccessfully pursued and/or abandoned claims predicated on similar allegations, it is evident that Song's claims stem from fanciful, fantastic, and delusional beliefs about military technology, research programs, software, experiments, and conspiracies involving government and private actors (and the Pope).
Song has referenced a diagnosis of schizophrenia, which she alleges is “untrue.” Second Exhibits to Amended Complaint at 1, Song v. U.S. Gov't, No. 3:23-cv-00573-JR (D. Or. May 27, 2023), ECF No. 14.
Given these facts, the Court recommends that the district judge dismiss Song's complaint with prejudice because it is frivolous and duplicative. See Hejazi v. Shugar, No. 6:21-cv-01142-MO, 2021 WL 4132311, at *1 (D. Or. Aug. 26, 2021) (“While a court may not dismiss a complaint simply because it finds the allegations to be unlikely, . . . this Court finds [the selfrepresented plaintiff's] allegations of a vast government conspiracy to be both fanciful and wholly incredible. Accordingly, the Complaint is dismissed, without leave to amend, on the basis that it is frivolous.”), appeal dismissed, No. 21-35762, 2022 WL 4119658, at *1 (9th Cir. July 19, 2022).
2. Res Judicata
The Court also recommends that the district judge dismiss this action with prejudice because it is barred by res judicata.
a. Applicable Law
The Ninth Circuit has explained that “[t]he preclusive effect of a federal-court judgment is determined by federal common law,” and that “federal claim preclusion ‘applies when there is (1) an identity of claims; (2) a final judgment on the merits; and (3) identity or privity between parties[.]'” Beaton, 859 Fed.Appx. at 784 (citing Taylor v. Sturgell, 553 U.S. 880, 891 (2008) and Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002)); see alsoLevi v. Anchorage Sch.Dist., No. 23-35170, 2024 WL 1328778, at *1 (9th Cir. Mar. 28, 2024) (“The district court properly dismissed [the self-represented plaintiff's] claims concerning his unemployment benefits as barred by res judicata because [he] previously raised nearly identical claims against the same defendants or their privies in a prior federal action that resulted in a final judgment on the merits.”); Beaton v. Amazon.com, Inc., No. 20-cv-00492, 2020 WL 4547292, at *1-5 (E.D. Cal. Aug. 6, 2020) (addressing the IFP statute's screening requirements, summarizing the plaintiff's allegations and the previous action the plaintiff filed in California federal court, and recommending dismissal with prejudice under § 1915(e) because the plaintiff's complaint was barred by res judicata), findings and recommendation adopted, 2021 WL 847834, at *1 (E.D. Cal. Mar. 5, 2021).
b. Analysis
In light of Song IV, the Court concludes that this action is barred by res judicata.
In Song IV, Song made “vague” allegations about an “awful” experience that she had with the CIA, “six hundred family CIAs in existence in the country,” and a “program” that Newsome designed, which at one point was called “Project Gorgeous” and located at a Navy base in San Diego County. 2023 WL 4535193, at *1-2 (simplified). The exhibits that Song filed in support of her amended complaint consisted of, among other things: (1) a list of individuals and entities that “allegedly have access to military technology,” (2) a “list of purported wrongdoers,” including a co-worker (Henkel), a “Dr. Coleman” (i.e., Peter Coleman, who works at Columbia University), and “Bruce Newsome of the U.S. Army,” (3) Song's “records requests to the National Security Division, Department of Justice and U.S. National Central Bureau- Interpol” regarding Newsome and Project Gorgeous, (4) a summary of Song's “[r]elated [c]ases” from this district, and (5) “documents from [Song's] other cases, . . . within and outside this [d]istrict.” Id. at *1 n.1 (simplified). After Song did not attempt to cure the deficiencies that the court previously identified, the district judge entered a judgment dismissing Song's action with prejudice. See Judgment at 1, Song v. U.S. Gov't, No. 3:23-cv-00573-JR (D. Or. Aug. 18, 2023), ECF No. 27.
Song does not present any allegations or exhibits suggesting a change in circumstances or that she discovered new or unavailable evidence, which might warrant further review of the factual allegations and claims that the district court rejected and dismissed with prejudice in Song IV. See generally Dhingra v. Esposito, No. 22-16774, 2024 WL 1253790, at *1 (9th Cir. Mar. 25, 2024) (affirming district court's dismissal of the self-represented plaintiff's case as frivolous under § 1915(e) and without leave to amend, noting that nothing “support[ed] th[e] fiction” that an “FBI ‘Cyber Squad'” used a decoy to obtain his conviction in violation of his due process rights, and adding that the plaintiff “present[ed] no newly discovered or previously unavailable evidence that might warrant further review of his previously rejected constitutional claims”) (simplified).
The second element of federal claim preclusion is “a final judgment on the merits[.]” Beaton, 859 Fed.Appx. at 784 (citation omitted). There was a final judgment on the merits in Song IV because the court granted Song leave to amend, she did not, and the court dismissed her claims with prejudice. See Moreno v. Pena, No. 21-cv-00683, 2021 WL 2139448, at *1 (N.D. Cal. May 26, 2021) (adopting in full the recommendation to dismiss with prejudice a selfrepresented plaintiff's IFP complaint “based on the preclusive effect of the judgment entered” in the plaintiff's previously filed action, and noting that in the previous action, the plaintiff received an opportunity to cure but failed to do so before the district judge entered a judgment of dismissal with prejudice); Vitalich v. Alliance Bancorp, No. 16-cv-06231, 2017 WL 4224679, at *3 (N.D. Cal. Sept. 22, 2017) (“With respect to the second [res judicata] factor, the Bankruptcy Court's order dismissing the . . . [c]omplaint granted [the plaintiff] leave to amend to assert a new claim. However, [the plaintiff's] failure to file an amended pleading within the time provided (or at all) converted the Bankruptcy Court's order into a final order of dismissal with prejudice.”); Wheeler v. United States, No. 1:12-cv-00540, 2012 WL 1594148, at *1-4 (E.D. Cal. May 4, 2012) (“[Plaintiff] has failed to allege facts sufficient to support a claim for medical malpractice. In addition, because there is an identity of claims, the Court entered a final judgment on the merits, and privity between Clinica Sierra Vista and the United States, the doctrine of res judicata bars re-litigation of Plaintiff's claims .... Finally, though Plaintiff's earlier action was dismissed without prejudice, he refiled this current action despite that he did not cure the deficiencies noted in the earlier order.”).
The Wheeler docket reflects that on June 13, 2012, the district judge issued an Order addressing the plaintiff's objections and adopting in full the magistrate judge's findings and recommendation. The district judge entered judgment that same day.
The first and third elements of federal claim preclusion are “an identity of claims” and “identity or privity between parties.” Beaton, 859 Fed.Appx. at 784 (citation omitted). These elements are satisfied here, as Song raised or could have raised (or attempted to cure) nearly identical claims against the “U.S. Government” in Song IV. See Levi, 2024 WL 1328778, at *1 (“The district court properly dismissed [the self-represented plaintiff's] claims concerning his unemployment benefits as barred by res judicata because [he] previously raised nearly identical claims against the same defendants or their privies in a prior federal action that resulted in a final judgment on the merits”); Drevalelva v. McDonough, No. 23-15308, 2024 WL 1342670, at *1 (9thCir. Mar. 29, 2024) (affirming the sua sponte dismissal of the self-represented plaintiff's case and stating that the “district court properly dismissed [the plaintiff's] action on the basis of claim preclusion because [the plaintiff] raised, or could have raised, her claims in her prior federal actions, which involved the same parties or their privies and resulted in final judgments on the merits”).
Courts have noted that before dismissing a complaint sua sponte based on res judicata, a party should receive an opportunity to be heard. SeeBarber v. Oregon, No. 3:19-cv-01631-YY, 2019 WL 5848057, at *2-3 (D. Or. Nov. 5, 2019) (Immergut, J.) (noting that “parties should have an opportunity to be heard prior to a court's sua sponte dismissal based on res judicata,” finding that “the doctrine of res judicata preclude[d] [the] [p]laintiff from re-litigating his challenges to the state laws,” and granting thirty days' leave to amend “because the [c]ourt must provide [the] [p]laintiff the opportunity to be heard on the res judicata matter” (citing Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1055 (9th Cir. 2005))). Song will receive such an opportunity here because Song may file objections to the Court's findings and recommendation. SeeGenthner v. Hedrick, No. 1:16-cv-00350, 2016 WL 4261896, at *1-2 (E.D. Cal. Aug. 11, 2016) (adopting in full the magistrate judge's recommendation to dismiss the plaintiff's IFP complaint “with prejudice because it [was] barred by claim preclusion,” addressing Headwaters (see 399 F.3d at 1055), by stating that the “plaintiff was given a full opportunity to be heard, and indeed ha[d] filed objections to the findings and recommendations,” and noting that “where the court is aware of a potentially preclusive decision, it is consistent with the interests in finality, conservation of judicial resources, and protecting litigants from multiple lawsuits for the court to examine the preclusive nature of a prior judgment sua sponte”) (citations omitted), aff'd, 690 Fed.Appx. 1003 (9th Cir. 2017).
CONCLUSION
For the reasons stated, the Court GRANTS Song's IFP application (ECF No. 1) but recommends that the district judge DISMISS this action with prejudice because it is frivolous, duplicative, and barred by res judicata.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.