Manning v. United States

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(Filed: October 2, 2015)

U.S. COURT OF

* * * +,r * * * * + * * * * * * *,fi 1. ** r. :| *** + *** *'1. * {. FEDERAL CLAIMS

) Purported claims ofpatent infringement and

ROBERT LEE MANNING, JR', et aI., ) taking of intellectual property; application to

) proceed in forma pauperis; scope and

Plaintiffs, ) administration of 28 U'S.C $ 1915;

) frivolous claims

)

)

UNITED STATES, )

)

Defendant. )

)

,, ***** *'t :N * * * :t *,1' * * {' * *'r * * * * *'* + *'t :l' * * :i

Robert Lee Manning, pro se, Los Angeles, CA'

BenjaminS.Richards'TrialAttomey,CommercialLitisationBranch,CivilDivision'

United States Department \t;#;"t' D C'' for defindant' With him on the brief

"ri*t'iit,

wereBenjaminC.Mizer,frincrpalDeputyA'ssistantAftomeYGeneral'CivilDivision'andJohn

Fargo, Director, and Gary L. ;"I;l;", distant

Director' Commercial Litigation Branch' Civil

D'C'

Oiul.ion, United States Department of Justice, Washington'

OPINION AND ORDER

LETTOW, Judge.

damases of more than a trillion dollars

Plaintiff Robert Lee Manning, Jr', seeks monetzuy

fraud, and discrimination'

from the United Srates for i"tri"e;.?ri;i;intellectual iropertyl" weather

Compl. fl 33.r Mr. Manning in", h. i"venred an'intirstellar spaceship and

property'

;;;tt;., unA tf,ut tt. Unit"d "ii."g",

st#t has infringed upon or taken this intellectual

that property, and discriminatedagainst him

fraudulently prevented him tiom capitatizing in

as a black man from bu;"ess uJittg tttat pioperty. Compl . fln"'U:?Y]:]j: ,

"onau"tlng ieave to proceed in forma pauperis" Pl 's

Mr. Manning appeaxsprorr, uiJ r'" rtu' appfiJd for

The govemment opposes the

Appl. to Proceed In Forma eoup"is,EcF iqo 2' "oPtt"^"]i*'

and dismiss the case as frivolous

";;; i" a"ny tn" uplti"ution

court has ,nr i"rrrJfiv

"ri5.rr*ii,"iii"

under 28 U.S.C. $ 1915(eX2XB;6 ;"f''th"tp in opp'n to Mot for Leave to Proceed In

rMr. Manning also lists NOCH Technological Scientific Research Institute, Inc' as a

..[a]n individual

under the court's rules,

plaintiff, but the court will ignore that inclusion because,

but 1a1 not represent a c-orPoration ' ' in any

who is not an attomey may rlpresent oneself ' ' ' Claims'

proceeding before *,i, Ruit s3'i("lAl ofthe Rules ofthe Court ofFederal "

"ou.t.ii

Forma Pauperis, ECF No. 5. The govemment's opposition raises issues about the scope and

application of Section 1915.

STANDARDS FOR DECISION

Section 1915 of Title 28 enables federal courts to allow a person to commence an action

without prepayment ofcourt fees, so long as the person provides a swom affidavit establishing

his or her inability to pay:

Subject to subsection (b), any court ofthe United States may authorize

the commencement, prosecution or defense of any suit, action or

proceeding, civil or criminal' or appeal therein, without prepayment of

fees or security therefor, by a person who submits an affidavit that

includesastatementofallassetssucy'rprlsonei,possesses|hattheperson

isunabletopaysuchfeesorgivesecwitytherefor.SuchaffidavitShall

state the naturi of the action, defense or appeal and affrant's beliefthat

the person is entitled to redress.

1915 injects an element

28 U.S.C. g 1915(a)(1) (emphasis added).2 Paragraph (a)(1) of Section

the,word

of confusion into application of this statutory provision by altemating between

;per*n" and "prisoner" when referring t o in forma pauperls applicability ' ,See Schage.ne.v'

3 1915(e)'

inited States,iZ f.a. Ct. 661, 662 (1997). This ambiguity extends to Subsection

which authorizes federal courts to dismiss frivolous or malicious actions:

(eX1) ' . .

iijXo,*itfttt-Aing any frling fee, or any portion^thereof, that may have been

that-

iJia. iir. court shalidismiss the case at any time ifthe court determines

(A) the allegation ofpoverly is untrue; or

(B) the action or aPPeal-

(i) is frivolous or malicious;

(ii) f'ails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune

ftom such relief.

"

2By its terms, Subsection 1915(a) applies only to a "court of the United states Pursuant

g 2503(d), the court of FiierJ claims is a "court of the united states"

for the

to 2g u.s.'c.

prrp"t""fi""rio.tt9iS. SeeMatthewsv'{JnitedStates'72Fed'CI 274'277(2006)'

sSectionlgl5distinguishesbetweenpersonsandprisonersthroughout.Someprovisions

apply only to prisoners, whereas others apply to all

persons' Subsection l9i5(b) creates a

based

#;ii;1" fo, prisorrer filers, requiring ihi court to assess and collect fees from prisoners

paragraph 1915(b)(1) does not,use_the- term

on a formula incorporating pri.one.s' a-ccorrrrts.

.'oerson,,at all, but in.tead.eiers only to a "prisoner.'; In contrast, Paragraph 1915(e)(1) permits

,f;.o,,rt;;;;;*i."""t"r fo. "a"y persot';'and does not use the term "prisoner'"

28 U.S.C. $ 1915(e). Nonetheless, the scope of the statute becomes evident upon an examination

of the origin and chain of amendments made to the text over time.

A, lltho Is a " Person" within the Meaning of Section I91 5?

The current version of Section 1915 is the product of several amendments made by

Congress as part of the Prison Litigation Reform Act of 1995.4 The prior statute, enacted in

1948, allowed for filing by "a person." Indeed, since 1892 the United States Code has provided

avenues for in forma paupens filings. See Ben. C. Duniway, The Poor Man in the Federal

Courts, 18 Stan. L. Rev. 1270 (1966). The 1892 statute applied to citizen-plaintiffs, providing

that "any citizen ofthe United States, entitled to commence any suit or action in any court ofthe

United States, may commence and prosecute to conclusion any such suit or action without being

required to pt.puy f."t or costs." Act of July 20, 1892, ch. 209, $1, 27 Stat.252.s Congress re-

*tote th" statute in 1948, expanding it to cover all persons, including defendants, and codifying

it at Section 1915 in Title 28: "Any court of the United States may authorize the commencement,

prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein,

without prepayment of fees and costs or security therefor, by a person who makes affidavit that

ne is uniUte to payl, 28 U.S.C. $ 1915(a) (1995) (originally enacted as Act ofJune 25, 1948, ch.

646,62Stat.giq(1948Act")(emphasisadded). Thelg48Actthusappliedbroadlyto

persons. see McTeague y. sosnowski,617 F.2d 1016, 1019 (3d Cir. 1980) (applyingthe 1948

ict to a non-prisonei frling;; see a/so Duniway, supra, at 1286 (observing the unique problem of

frivolous prisoner filings under the statute).

when congress enacted the Prison Litigation Reform Act of 1995, it did not re-write

v. Lacy'88

Section 1915 but instead amended it to add rules for prisoner filings. see Leonard

Act's

F.3d 181, 133-84 (2d Cir. 1996) (\lewman, J.) (providing a line-by-line listing of the 1995

phrase "such prisoner.

revisions to the text of section 1915). The 1995 Act inserted the

possesses" into Paragraph 1915(aXi) while also leaving intact the requirement

in the original

i9+8 e"t thut ,,u p"rr-on-" file an

"affidavit" regarding his or her inability to pay. Id. ln the

Second Circuit's opinion in Lacy, the court evin inserted a notation of"sic"

next to the phrase

.,such prisoner" inihe court's quotation of Paragraph 1915(a)(1), signaling that the court thought

that the reference to,,such prisoner" was * Id.;see also schagene' 37 Fed. cl. at652n2

"rro.. prisoner"

(commenting that there are actually two errors in Paragraph 1915(a)(1) because "such

in the statute). As

*u, arl the word "and" should appear after the word "possesses"

".ro, -d Act], as-reflected by

other courts have observed, "the purpose oithe [Prison Litigation Reform

its title, is to curtail inmate litigafion," implying that Congress did not intend

to affect filings by

Litigation Reform Act of 1995 was actually enacted in 1996 as Title.VIII

aThe Prison of

Pub. L' No 104-134'

the Omnibus Consolidaied Rescissions and Appropriations Act of 1996,

110 Stat. 1321.

sln his article, Judge Duniway traced the history of informa pauperis stat$es in the

English-speaking nat'ions iack to u ,Ltut" adopted during the reign ofHenry

VII in England.

See-Duniway, tipro, ut 1271 (citing Act 1494, ' ll

Hen' 7 , c' l2)'

non-prisoners. Floydv. UnitedStates Postal Sent.,105F.3d274,275 (6th Cir. 1997) (citing

H.R. Rep. No. 104-378, at 166, for the proposition that the act was intended "to discourage

frivolous and abusive prison lawsuits").

In light ofthis evolution of Section 1915, it would be improper to assume that by adding

the phrase "such prisoner" in Paragraph 1915(a)(1), Congress intended to repeal by implication

the century-old authorization for in forma pauperis filing by persons generally. See Powell v.

Hoover,956 F. Supp. 564,566 (M.D. Pa. 1997) ("The appearance ofthe phrase 'such prisoner,'

without more, cannot reasonably be interpreted as effecting such a sweeping change.").6

Accordingly, Section 1915 should be applied to prisoners and non-prisoners alike, and the phrase

"such prisoner" should be interpreted as "such person." Floyd,105F.3daI277;see also

Salgado-Toribio v. Holder, Tl3 F.3d 1267,1270 (lOth Cir. 2013); Martinez v. Kristi Kleaners,

[nc.,364 F.3d 1305, 1306 n.1 (11th Cir. 2004); Haynes v. Scott, I l6 F.3d 137, 140 (5th Cir.

1997). The Federal Circuit has in effect endorsed this construction of Section 1915 in a non-

precedential decision. See Jackson v. United States, _ Fed. Appx. _, _,2015WL2343625,at

*2 (Fed. Cir. May 18, 2015) (affirming a Court of Federal Claims dismissal of a non-prisoner's

complaint for frivolousness under Subparagraph 1915(e)(2)(B)); see also Dziekonski v. United

States, 120 Fed. Cl. 806, 81 I (2015) (granting an application to proceed in forma pauperis vrder

Paragraph 1915(aX1)); Hayesv. United States,7l Fed. CI.366,368 (2006) (same).

B. llrhat Is a Frivolous Cqse?

Although Section 1915 removes the burden ofpaying filing fees in appropriate cases, it

imposes limitations affecting certain tlpes of claims. Of relevance here, a "court shall dismiss

the case at any time" if the action or appeal to be filed informa paupens "is frivolous or

malicious." 28 U.S.C. g 191 5(e)(2)(B)(i). In contrast to a motion to dismiss for failure to state a

claim, which requires the court to assume the truth of allegations in the complaint, Clause

1915(eX2XBXi) gives courts "the unusual power to pierce the veil ofthe complaint's factual

allegations and dismiss those claims whose factual contentions are clearly baseless." -/ardy v.

obama,60l Fed.Appx.620,623 (1OrhCir.2015)(quotingNeitzkev. lltilliams,490u.s.319,

327(1959)):Brodzkiv.TribuneCo.,48lFed.Appx.705,706(3dCir.2012)(same)' A

"finding of fa"tual frivolousness is appropriate when the facts alleged rise to the level ofthe

*2 (quotl'ng Denton v'

inational or wholly incredible." Jacl<son,2015 WL 2343625, at

Hernandez,so4 u.s. 25,33 (1992)) (affirming dismissal of a complaint "seeking $10 billion

tiom the United States for the use of [plaintiffs] purported hurricane prevention device.").

claims of this sort rest on "allegations that are fanciful, fantastic, and delusional." Denton,504

U.S. at 33 (intemal citations and quotation marks omitted); see also Jones v. United States,l22

Fed. cl. 543, 545-46 (2015) (dismissing a frivolous claim by a prisoner, based upon screening

conducted pursuanr to 28 U.S.C. $ 1915A); McCultough v. {Jnited States,76 Fed. Cl. 1' 3 (2006)

(dismissing a factually frivolous claim by a non-prisoner).

The court may not, however, dismiss a complaint merely because the allegations are

.,improbable" or,,uniik"ly." Denton,504 U.S. at33; seealsoNealv. IJnited states,No. 13-31C,

6Acceptance of an implied repeal of the preexisting version of Section 191 5(a) would be

stronslv disfavored. see Foreman v. (Jnited states,60 F.3d 1559, 1563 (Fed. Cir. 1995).

2013 WL 1801673, at *3 (Fed. Cl. Apr. 29,2013) ("[T]he court must exercise caution, and

cannot dismiss an informa pauperls complaint 'simply because the court finds the plaintiff s

allegations unlikely."') (quoting McCullough, T6 Fed. Cl. at 3 (in tum quoling Denton,504 U.S.

at 33).

C. If a Case Is Frivolous, Should the Court Grant or Deny the

In Forma Pauperis Application?

Courts are split as to whether an in forma pauperis application should be granted or

denied if the court finds the filing is frivolous. Compare Kenney v. Prime Recruitors Trucking

Co.,61l Fed. Appx. 370 (8th Cir. 2015) (reversing district court's denial of application because

of frivolous claims), wirlr Wartman v. Branch 7, Civil Div., Cnty. Court,510 F.2d 130' 134 (7th

Cir. 1975) ("[A] districtjudge should deny leave to proceed in forma pauperis if an action rs

frivolous or malicious.").

The text of the statute, however, requires that the court deny ut informa pauperis

application if, in connection with or prior to ruling on the application, the court finds the case is

frivolous. Paragraph 1915(e)(2) provides plainly the court "shall" dismiss the case "at any time"

if the court determines the complaint is "frivolous or malicious." 28 u.s.c. $ 1915(e)(2). The

phrase ,,at any time" indicates that the court is not restricted as to when the case may be

iismissed. Tie only condition is that the court find the action to be frivolous. And, the court has

no discretion once it determines a filing is frivolous because a frivolous case "shall" be

dismissed. The Federal Circuit has emphasized this "obligat[ion] to dismiss" complaints that are

factually frivolous. Jackson,2015WL2343625,at+2(citingNeitzke,4g0 u.s. at327 (1989)).

This result is supported by the Supreme Court',s opinion in Neitzke, which observed that

,,[d]ismissals on these

1'friuoloustress] grounds are often made sza

sponte prior to the issuance of

such

process, so as to spare prospective defendants the inconvenience and expense of answering

complaints." Neitzke,490 U.S. at 324. Paragraph 1915(eX2) thus serves as a screenmg

mecilanism to preserve public

-be

resources, becirrse ifthe application "is granted and the complaint

7

filed, the matte; caffiot dismissed until summons has issued." fl/arlman' 510 F.2d at 134

consequently, the court is not persuaded by the Eighth circuit's holding in Kenney,6ll

Fed. Appx. at j70, tfiat the in forma piuperis application must be decided prior to

examining the

n'2 (8th

comptuint for frivolousnes s. Kenney ciies Foriiter v. Catif, AdultAuth.,5l0 F.2d 58, 60

cir. iszs) for support, but the Forester opinion is inapposite because it interpreted the 1948

version of section'1915, which provided merely that courts "may" dismiss frivolous in forma

?Additionally, the Fifth Circuit has held that "dismissals under the in forma pauperis

statute are . . . deniais of informa pauperis status." Marts v. Hines,ll7

F.3d 1504, 1505-06 (5th

a dismissal

Cir.1997)(en banc) (citing Dentin,5b4 U.S. at 34 (explaining that "dismissal is not

pauperis statute" that 'do€s not

on the meriis, but rather an exercise . . . under the in forma

prejudicethefilingofapaidcomplaintmakingthesam^eallegations,'))'.Typically,burnot

e*clusi.,rely, such dismissals .uy i"*" as resiudicata for subsequent in forma

paupe.rls filings,

making the same

but they effect no prejudice to the subsequent frling ofa fee-paid complaint

allegations." 1d.

pauperis cases. Forester concluded that the 1948 Act gave courts "discretion" and thus that the

"better practice" was to grant the application first, so that an appellate record could be

developed. See Forester,5 l0 F.2d at 60. But today, Paragraph 1915(e)(2) provides that cowts

"shall" dismiss Nr informa pauperis filing if it is frivolous, lails to state a claim, or is against an

immune defendant. It leaves little room for discretion.o

D. Summary of Paragraph l9l5(e)(2)

Section 1915 applies to all informa pauperrs filings, not only prisoner frlings. If at

any time the court determines the case to be frivolous or malicious, it must dismiss the case

28 U.S.C. $ 1915(e)(2)(B)(i). And if the informa pauperus application has not already been

granted, the court cannot grant the application after finding the case to be frivolous or malicious'

instead, it must deny the application and dismiss the case. If the court cannot make an initial

determination of frivolousness, it may be appropriate to grant the in forma pauperls application,

only to dismiss the case later upon makingiuch a finding. But if the application is pending when

the court determines the case is frivolous, it may not be granted

ANALYSIS

Mr.Manninggenerallyallegesthathehasinventedaninterstellarspaceshipandthatthe

tax-returns as

United States has sornehow taken oi infringed upon his intellectual property, citing

that Mr.I4anning

widence of the spaceship. Compl. ffl 4, 10, 16. The complaint also alleges

him'

has built a "weatirer machine" that ttri Unitea States has used without

compensating

Compl'fll2.Theseallegationsarefactuallyfrivolouswithinthemeaningof23U.S.C.

(dismissing_case as-frivolous when

S iSfjt.XZXSlti). SeeJackson,ZOtsWL2343625,at*2

Mr. Manning's

.".pf"iri^i[gJ ownership of ievice that prevents hurricanes). Similarly,with this purported

aifejations of iraud on the part of govemm"tttul u"tott in connection

based

inr.ifr"*ut property a.e wiihout aiy factual foundation, as is his claim of discrimination

on his race.

sOne could argue that the language in Subsection 1915(e) that the-court "shall dismiss the

that the application has been

case" presumes that a-"case" has been fiied' and thus implies

further argue that the text in subsection 1g 15(e) that the case shall

be

!i^t"a. o". might

,,[n]otfothstanding fee, or any portion thereof, that may have been paid"

Eismissed iny filing

have paid

;;;i;;;i"i;li" i'as ir.st be"en gianted, because it assumes the litigant might

a riduced fee. However, the use of the wJtd ".uy"

"pplication demonstrates that it is proper to dismiss a

i.guraf"., ofa filing fee. Thus, the referenci to "any filing fe9 ' ,1lrat may have been

"u*

paid,' is best read as meanlng that

,,even though an initial examination did not result in a finding

ii r.ir"ltv or malice, if it should later be detJrmined that the action is frivolous or malicious

not realize a

,r,.* -"it" a dismissal of the complaint )' I|/artman,s10 F.2d ar 132. A court may

pauperis hasbeen ganted But

case is frivolous until after the apptication to proceed informa

to be frivolous prior to ruling on the

this does not change the f'act thai if the court irnds the case

in r)o Oou1rrls-application, the court must deny the application'

6

Because the court finds that Mr. Manning's claims are frivolous, it is obligated to

dismiss the case and to deny his application to proceed in forma pauperis.

CONCLUSION

For the reasons stated, the plaintiff s application to proceed informa pauperis is

DENIED and the complaint is DISMISSED. The clerk shall enter judgment in accord with

this disposition.

No costs.

It is so ORDERED.

Charles F. Lettow