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Bragg v. Hammett

United States District Court, D. New Mexico

January 10, 2020




         THIS MATTER comes before the Court on Plaintiff's Complaint, Doc. 1, filed January 8, 2020, and on Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 3, filed January 8, 2020 (“Application”).

         Application to Proceed In Forma Pauperis

         The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the Court may authorize the commencement of any suit without prepayment of fees by a person who submits an affidavit that includes a statement of all assets the person possesses and that the person is unable to pay such fees.

When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of [28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court finds that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case[.]

Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962). “[A]n application to proceed in forma pauperis should be evaluated in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.1988)). “The statute [allowing a litigant to proceed in forma pauperis] was intended for the benefit of those too poor to pay or give security for costs....” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute, ” “an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Id. at 339.

         Plaintiff signed an affidavit declaring that she is unable to pay the costs of these proceedings and stated: (i) her monthly income is $450.00; (ii) her monthly expenses total $450.00; (iii) she is not employed; and (iv) she has no cash and no money in bank accounts. The Court grants Plaintiff's Application to proceed in forma pauperis because Plaintiff is unemployed, her monthly expenses equal her low monthly income, and she has no cash and no money in bank accounts.

         Dismissal of the Case

         Plaintiff is proceeding in forma pauperis. The statute governing proceedings in forma pauperis states "the court shall dismiss the case at any time if the court determines that ... the action ... fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see also Webb v. Caldwell, 640 Fed.Appx. 800, 802 (10th Cir. 2016) ("We have held that a pro se complaint filed under a grant of ifp can be dismissed under § 1915(e)(2)(B)(ii) for failure to state a claim ... only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend").

         Plaintiff alleges that “Executive Order 13865 published March 29, 2019” states “the Federal Government must provide warning of an impending EMP [ElectroMagnetic Pulse], protect against and respond to and recover from the effects of an EMP.” Complaint at1-2. Plaintiff, who resides in Phoenix, Arizona, also alleges that Plaintiff has suffered “electronic harassment and directed energy” harassment, that there is “evidence for violation of Executive Order 13865” in the form of medical problems including burns, that EMPs destroy the environment, and that “after reviewing both medical documentation and environmental changes, [Plaintiff's] second-degree burns are from a directed energy weapon.” Complaint at 4-11. Plaintiff “is requesting a court order to schedule a time with the United States Air Force to test (eliminate) the last set of electromagnetic pulses, frequencies, in violation of executive Order 13865.” Complaint at 13.

         Plaintiff's Complaint fails to state a claim. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.”). The only allegation mentioning Defendants states:

Dr. Kelly D. Hammett, Directed Energy Directorate, and Dr. Donald A. Shiffler, Chief Scientist, hold positions at the air force research laboratory, Kirtland air force base, Albuquerque, New Mexico. The Air Force Research Laboratory [at Kirtland Air Force Base] has both research and testing facilities for electromagnetic systems (including electromagnetic pulse) and directed microwave energy (mm wave) [sic]. Testing facilities for directed energy and mm wave are scheduled and located at the air force research laboratories, total of four locations in the United States, and can only be scheduled through the U.S. military by military personnel.

Complaint at 2-3. There are no allegations explaining what Defendants Hammett and Shiffler did to Plaintiff.

         Plaintiff filed essentially the same complaint in a previous action. See Bragg v. Shiffler, No. 1:19-cv-00360-RB-JHR (D.N.M. April 9, 2019). The Court dismissed the previous action without prejudice for failure to state a claim after quoting the explanation of how to state a claim in Nasious v. Two Unknown B.I.C.E. Agents and ...

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