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Allen v. United States Attorney General

United States District Court, D. Maine

May 17, 2016

BERT JOHN ALLEN, III, Plaintiff
v.
UNITED STATES ATTORNEY GENERAL, et al., Defendants

          ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, RULING ON CERTAIN PENDING MOTIONS, AND RECOMMENDING DISMISSAL OF THE CASE IN ITS ENTIRETY

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE.

         The plaintiff, proceeding pro se, alleges federal constitutional violations against a long list of putative defendants, including the attorneys general of the United States and the states of Maine and New Hampshire; appears to challenge a New Hampshire statute and various federal statutes; and objects to the alleged secret use of certain forms of technology by law enforcement agencies.

         The following motions filed by the plaintiff have been referred to me: Motion for return of service form (ECF No. 3); Motion for leave 12/14/2015 to [F]eb. 3[, ] 2016 (ECF No. 4); Motion for Extension of Time (ECF No. 10); Motion for Appointment of Standby Attorney (ECF No. 11); Motion to Proceed In Forma Pauperis (ECF No. 13); Motion to Seal (ECF No. 19); Motion to Proceed In Forma Pauperis (ECF No. 21); Motion to Add Expert Witnesses (ECF No. 24); Motion for Service (ECF No. 25); Motion for time of service by [U]nited [S]tates [M]arshals (ECF No. 30); Motion to add governor as a key witness (ECF No. 33); Motion for Extension of Time (ECF No. 34); Motion for sanction (ECF No. 35); and Motion to Extend Time (ECF No. 41). Also referred is the Motion for Screening Pursuant to 28 U.S.C. § 1915(e)(2) filed by the United States Attorney General (ECF No. 22).

         I grant the plaintiff’s request for leave to proceed in forma pauperis (ECF No. 21), but recommend that the court dismiss the action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). If adopted by the court, this recommendation means that the remaining motions filed by the plaintiff would be moot.

         The United States Attorney General’s motion for screening under section 1915(e)(2), ECF No. 22, is unnecessary. Where a motion for leave to proceed in forma pauperis is filed in a civil action, this court reviews each complaint under that statute. Because the plaintiff has filed an objection to the United States’ motion, ECF No. 23, [1] I grant the motion, rather than dismiss it as moot. Screening under section 1915 of pro se complaints from plaintiffs who seek in forma pauperis status is within the court’s discretion. This court’s practice of performing such screenings is not subject to challenge.

         In forma pauperis status is available under 28 U.S.C. § 1915(a)(1). However, section 1915(e)(2)(B) also provides, in relevant part:

[T]he court shall dismiss the case at any time if the court determines that
(B) the action or appeal --
(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).

         “Dismissals [under 28 U.S.C. § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.” Nietzke v. Williams, 490 U.S. 319, 324 (1989); see also Mallard v. U.S. Dist. Ct. S. D. Iowa, 490 U.S. 296, 307-08 (1989) (“Section 1915(d), for example, authorizes courts to dismiss a ‘frivolous or malicious’ action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”)

         The plaintiff’s affidavit establishes that he receives $488.67 monthly in disability payments, $271.00 monthly in public assistance, and $16.00 monthly in food stamps. He essentially has no savings, he and his spouse own a 1994 Chevrolet (not otherwise specified) and a 2003 Ford Taurus, and he sends money to his spouse and child, who live overseas. He resides with his parents. He states that he borrowed the money to pay the filing fee for ...


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