Pham v. United States Department of Defense

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Dat Quoc Pham, No. CV-21-01373-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 United States Department of Defense, 13 Defendant. [14] 15 Pending before the Court is Plaintiff Dat Quoc Pham’s Complaint. Plaintiff filed 16 this action pro se on August 9, 2021 against the United States Department of Defense 17 (“DOD”) asserting violations of Plaintiff’s constitutional rights under the First, Fourth, 18 Fifth, and Thirteenth Amendments of the United States Constitution. (Doc. 1.) At the same 19 time, Plaintiff motioned the Court to proceed in forma pauperis, (Doc. 2), and requested 20 the Court appoint Plaintiff counsel for this case. (Doc. 3.) Having reviewed the Complaint, 21 the Court denies Plaintiff’s application to proceed in forma pauperis and will not appoint 22 counsel. 23 I. APPLICATION FOR IN FORMA PAUPERIS 24 A. Frivolity 25 “The district court may deny permission to file a complaint in forma pauperis if the 26 complaint is frivolous on its face.” DeRock v. Sprint-Nextel, No. 1:11-cv-00619-BLW27 LMB, 2014 U.S. Dist. LEXIS 79747 (D. Idaho June 11, 2014) (citing O'Loughlin v. Doe, [28] 920 F.2d 614, 616 (9th Cir.1990)). “[The] term ‘frivolous,’ when applied to a complaint, 1 embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” 2 O'Loughlin, 920 F.2d at 617 ; see also DeRock v. Sprint-Nextel, 584 Fed. Appx. 737 , 7373 38 (9th Cir. 2014). Further, “[a] court may dismiss a claim…if the facts alleged are ‘clearly 4 baseless,’ a category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and 5 ‘delusional.’” Gray v. Trump, No. CV-20-00079-TUC-DCB, 2020 U.S. Dist. LEXIS 6 49480, at 2 (D. Ariz. Mar. 23, 2020) (quoting Denton v. Hernandez, 504 U.S. 25 , 32-33 7 (1992)). 8 Plaintiff’s Complaint is a laundry list of unsupported allegations that the DOD is 9 using technology for a “mass hijacking” of people’s brains and to steal the Plaintiff’s 10 memories. (Doc. 1 at 6.) He accuses the DOD of “thought policing” and “observing the 11 future” with the goal of manipulating present events. (Id.) All of this is supposedly 12 accomplished through a “high-powered microwave system weapon.” (Id.) The Court finds 13 these allegations to be “‘fanciful,’ ‘fantastic,’ and ‘delusional[,]’” and so denies permission 14 to proceed in forma pauperis. DeRock, 584 Fed. Appx. at 737-38 . 15 B. Indigence 16 As an independent ground for denial, the Court notes that Plaintiff does not appear 17 to meet the standards for indigence. Plaintiff notes he is employed and has a monthly 18 income of $1860.00. (Doc. 2.) Plaintiff has more than $2000.00 saved between his two 19 bank accounts. (Id.) Further, he lists his total monthly expenses as $235.00. More than half 20 of the expenses listed are categorized expenses for “Recreation, entertainment, newspapers, 21 magazines, etc.” (Id.) Even after subtracting all listed expenses, Plaintiff still has a net 22 disposable income of more than $1600.00 a month, which equals more than $19,000.00 23 per year. The 2021 poverty guidelines published by the Department of Health and Human 24 Services set the poverty guideline for households consisting of a single person at 25 $12,880.00. Annual Update of the HHS Poverty Guidelines, 86 Fed. Reg 7732 (Feb. 1, 26 2021). At least one court in this district has previously denied a Plaintiff’s request to 27 proceed in forma pauperis when a Plaintiff’s income and support was greater than 130% 28 of the poverty guidelines. Gray v. Trump, No. CV-20-00079-TUC-DCB, 2020 U.S. Dist. 1 LEXIS 49480 , at *3 (D. Ariz. Mar. 23, 2020). A plaintiff’s need to proceed in forma 2 pauperis is a fact intensive inquiry, and the Court does not intend to set forward this 3 formula as an absolute or unwavering benchmark for granting or denying an application to 4 proceed in forma pauperis. However, on the facts before it, the Court finds this Plaintiff is 5 not indigent. 6 II. REQUEST FOR COUNSEL 7 Plaintiff has also requested that the Court order counsel to represent him in this 8 matter. “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 9 F.3d 965, 970 (9th Cir. 2009) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 10 1981)). However, a court may appoint counsel pursuant to 28 U.S.C. § 1915 (e)(1) in 11 “exceptional circumstances.” Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101 , 1103 (9th 12 Cir. 2004). Though this provision is most often applied to cases in which prisoners in 13 custody are seeking post-conviction relief, caselaw suggests the authority to request 14 counsel to represent an indigent party is not limited to those circumstances. See, e.g., CFTC 15 v. Brockbank, 316 Fed. Appx. 707, 712 (10th Cir. 2008); Rumbin v. Duncan, 856 F. Supp. 16 2d 422, 424 (D. Conn. 2012); Fisher v. CFC Capital Corp., 97 B.R. 437, 438 (Bankr. N.D. 17 Ill. 1989 ). To determine whether “exceptional circumstances” merit the appointment of 18 counsel, “a court must consider ‘the likelihood of success on the merits as well as the ability 19 of the petitioner to articulate his claims pro se in light of the complexity of the legal issues 20 involved.’” Palmer, 560 F.3d at 970 (citing Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 21 1983)). 22 The Court will not appoint counsel here. First, the Plaintiff does not qualify as 23 indigent so any statutory basis for requesting counsel under 28 U.S.C. § 1915 (e)(1) does 24 not apply. Second, the Plaintiff’s allegations are frivolous which shows the merits of his 25 case and likelihood of success are very low. Finally, the Court notes that in reality 26 Plaintiff’s claims are not as complicated or complex as he argues them to be. The legal 27 theories are actually fairly straight forward. Plaintiff believes the government has violated 28 his First Amendment rights by controlling his thoughts, violated his Fourth Amendment right to be free of searches and seizures by reading his mind and controlling his body, 2|| violated his Fifth Amendment right to his property by stealing his memories and ideas, and || violated his Thirteenth Amendment right by forcing his brain to do strenuous work without 4|| his consent. The legal theories are fairly straightforward, they simply have no basis in fact. 5 || Appointment of counsel is denied. 6 Accordingly, 7 IT IS ORDERED that Plaintiffs request to proceed in forma pauperis, (Doc. 2), 8 || and requested for appointment of counsel, (Doc. 3), are denied. 9 IT IS FURTHER ORDERED that if Plaintiff does not pay the required filing fee □□ by Wednesday, September 15, 2021 this action will be terminated. 11 Dated this 16th day of August, 2021. [12] 13 = . RP 14 SO 15 Gnvted States District ude. [28] -4-