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Pianka v. United States

United States District Court, D. Arizona

September 18, 2015

Victor Pianka, Plaintiff,
v.
United States of America, et al., Defendants.

ORDER

David G. Campbell United States District Judge

Plaintiff Victor Pianka, who is confined in the Eloy Detention Center, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and two Applications to Proceed In Forma Pauperis (Docs. 2, 6). Plaintiff has also filed a Motion for Injunctive Hearing (Doc. 3) and a Motion for Evidentiary Hearing (Doc. 4). The Court will dismiss the Complaint as frivolous and duplicative. Plaintiff’s Motion for Injunctive Hearing and Motion for Evidentiary Hearing will be denied as moot.

I. Applications to Proceed In Forma Pauperis and Filing Fee

Plaintiff’s August 25, 2015 Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff is and was, at the time this action was commenced, an immigration detainee. There do not appear to be any criminal charges pending against him at this time. Accordingly, Plaintiff is not subject to the filing fee provisions of the Prison Litigation Reform Act, and he will be allowed to proceed without payment of the filing fee. Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005); Agyeman v. INS, 296 F.3d 871, 885-86 (9th Cir. 2002). Plaintiff’s September 10, 2015 Application to Proceed In Forma Pauperis will be denied as moot.

II. Statutory Screening

Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted in forma pauperis status, the Court

shall dismiss the case at any time if the court determines that . . . 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).

A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

III. Complaint

In his two-count First Amended Complaint, Plaintiff asserts violations of his Fourth, Fifth, Eighth, and Fourteenth Amendment rights. He also asserts a violation of 42 U.S.C. § 1981. Plaintiff names the following Defendants: the United States of America; President Barack Obama; Attorney General Eric Holder; Secretary of the Department of Homeland Security (“DHS”) Jeh Johnson; Federal Bureau of Investigations (“FBI”) Director James Comey; Eloy Detention Center Employees Joseph Duran, Sepulveda, [1] Phillip Farabough, Smith, Rosemarie Kelly, ten unidentified Nurses (“Does #1-10”), Durham, Sebastian, John Cantu, Jon Gruelle, Brett Day, and Patricia Vroom; FBI Agents Douglas Price, Andrew Black, Mark Cwynar, John Lannarelli, Sean Kaul, George Steuer, and Johnson; DHS Employees Charleston, Smith, Shane Kitchen, and Lopez; the “Office Inspector General”; “DHS Civil Rights Civil Liberties”; and an individual identified as “X-Ray Tech at AZ-Tech Radiology” (“Doe #11”). In his Request for Relief, Plaintiff seeks $200 million in compensatory damages.

In Count One of the Complaint, Plaintiff alleges that his Fifth, Eighth, and Fourteenth Amendment rights were violated, along with 42 U.S.C. § 1981, by “x-ray fraud.” Plaintiff alleges that he has “over fifty pet locator chips” under his skin that are “constantly signaled to vibrate, shock, . . . cause pain[, ] and make [Plaintiff] lose sleep.” According to the Complaint, these chips were injected under his skin by “people [who] organized the murder of his father for life insurance money and literally planned his deportation.” Plaintiff appears to allege that Defendant Duran received a cash bribe for changing out an x-ray of Plaintiff that would have revealed the existence of these chips. Defendant Sepulveda should be held liable, Plaintiff claims, because “she is the one that ordered the x-ray and ignored the fact that she felt the bumps” that indicated the location of the pet locator chips. Defendants Farabough and Smith ignored Plaintiff’s grievances regarding the chips, and Defendants Kelly, Does #1-10, Durham, and Sebastian ignored Plaintiff’s allegations regarding the fraud that was being committed against him. In addition, Defendant Kelly misdiagnosed Plaintiff as delusional. Plaintiff alleges that he has written to Defendants Price, Black, Cwynar, Lannarelli, Kaul, and Comey “every single week this year” about the fraud being committed against him, but he has not received any response from these Defendants. Defendant Steuer sent Defendant Johnson to speak with Plaintiff, but Johnson failed to follow through with his ...


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