United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE
the Court is plaintiff's Complaint (Doc. 1). Plaintiff,
proceeding pro se, filed this action on April 27, 2015,
seeking damages and injunctive relief. For the reasons
discussed herein, plaintiff's Complaint shall be
Complaint lists as defendants the Federal Communications
Commission (“FCC”), Broadcasting Satellite
Service, and Scada Frequency Allocation Investigation Report.
In sum, although the Complaint is lengthy and difficult to
decipher, plaintiff appears to allege that she has been a
victim of electronic harassment in the form of satellite
frequencies being received by and emitted from her body.
Plaintiff asserts that the emissions have released harmful
chemical substances in her body and have caused her health
issues. The Complaint refers to two unidentified doctors who
determined that plaintiff had an abnormal blood count
reading. (Doc. 1 at 1-2). Plaintiff relies on 126 pages of
attachments to state her claim, informing the Court that the
attachments “best describe the situation.”
(Id. at 2). The attachments consist of reports
describing testing conducted on plaintiff's body by
Melinda Kidder, a private investigator and owner of Columbia
Investigations, and Hildegarde Staninger, an industrial
toxicologist and founder of Integrative Health Systems, LLC
(“IHS”); various Michigan Public Acts; a
Wikipedia page on frequency allocation; and incomprehensible
handwritten notes. Ms. Kidder's report reveals that she
was engaged by plaintiff to perform scans of plaintiff's
body to test for the presence of technology implanted in her
body without her consent. (Id. at 100). Ms. Kidder
concluded that the scans revealed abnormal readings and
higher than normal electromagnetic frequency emissions from
plaintiff's body. (Id. at 111). Ms.
Staninger's report incorporates the findings of Ms.
Kidder's report and concludes that plaintiff's body
has five receiving signals and a single frequency emission.
The report states that the frequencies are allowed by and
assigned from the FCC, and the secondary allocation of the
frequencies are assigned to countries that speak French.
(Id. at 127).
Complaint asserts jurisdiction pursuant to “United
States, Tropical Islands, Europe.” (Id. at 1).
Plaintiff requests an unspecified amount of monetary damages
comprised of the following: SCADA Assessment Cost Proposal,
twenty years of house payments, automobile payments for
herself and for her daughter, all future medical costs for
herself, Taylor Skye Hale, Hunter Hale,  her parents, and
“anyone else” with health issues. (Id.
at 2). Plaintiff's Complaint also appears to seek
injunctive relief, as she states “stop the crime . . .
not target individuals anymore.” (Id. at 1).
Plaintiff asserts she is concerned “for the city of
Tulsa, [its] citizens, and especially [her] Neighbors and
city officials.” (Id. at 2).
is proceeding in forma pauperis pursuant to 28 U.S.C. §
1915(a)(1), which provides that “any court of the
United States may authorize the commencement, prosecution or
defense of any suit . . . without prepayment of fees . . . by
a person who submits an affidavit that includes a statement
of all assets such prisoner possesses that the person is
unable to pay such fees.” Although plaintiff is not a
prisoner, the Tenth Circuit has held that § 1915(a) is
not limited to prisoners. See Lister v. Dep't Of
Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005)
(“Section 1915(a) applies to all persons applying for
[in forma pauperis] status, and not just to
prisoners.”). In enacting § 1915(a), Congress
intended to provide indigent litigants meaningful access to
the federal courts. Neitzke v. Williams, 490 U.S.
319, 324 (1989). “Congress recognized, however, that a
litigant whose filing fees and court costs are assumed by the
public, unlike a paying litigant, lacks an economic incentive
to refrain from filing frivolous, malicious, or repetitive
lawsuits.” Id. To prevent frivolous filings,
the statute authorizes a court to sua sponte dismiss a case
filed in forma pauperis where the action is frivolous or
malicious, the plaintiff has failed to state a claim upon
which relief can be granted, the defendant is entitled to
immunity, or the plaintiff has included false allegations of
poverty. See 28 U.S.C. § 1915(e)(2);
Stafford v. United States, 208 F.3d 1177, 1179 n.4
(10th Cir. 2000).
is also proceeding pro se. Pro se pleadings must be liberally
construed and held to less stringent standards than formal
pleadings drafted by lawyers. See Haines v. Kerner,
404 U.S. 519, 520 (1972). Nevertheless, a district court
should not assume the role of advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see
also United States v. Pinson, 584 F.3d 972, 975 (10th
Cir. 2009) (“rule of liberal construction [of pro se
filings] stops, however, at the point at which we begin to
serve as his advocate.”). But even pro se plaintiffs
are required to comply with the “fundamental
requirements of the Federal Rules of Civil and Appellate
Procedure” and substantive law, and the liberal
construction to be afforded does not transform “vague
and conclusory arguments” into valid claims for relief.
See Ogden v. San Juan Cnty, 32 F.3d 452, 455 (10th
Cir. 1994). A court “will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997). The liberal standard applicable to a pro se
plaintiff “does not relieve the plaintiff of the burden
of alleging sufficient facts on which a recognized legal
claim could be based.” Hall, 935 F.2d at 1110.
Sua sponte dismissal of a pro se complaint “is proper
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.” Perkins v. Kan. Dep't
of Corr., 165 F.3d 803, 806 (10th Cir. 1999).
assessing the sufficiency of plaintiff's Complaint, the
Court must first identify the proper parties in this case.
Generally, the caption of all complaints shall include
“the names of all the parties.” Fed.R.Civ.P.
10(a). “But in a pro se case when the plaintiff names
the wrong defendant in the caption or when the identity of
the defendants is unclear from the caption, courts may look
to the body of the complaint to determine who the intended
and proper defendants are.” Trackwell v. United
States Gov't, 472 F.3d 1242 (10th Cir. 2007).
Additionally, the Federal Rules of Civil Procedure provide
that “[m]isjoinder of parties is not a ground for
dismissing an action. On motion or on its own, the court may
at any time, on just terms, add or drop a party.”
case, it appears that plaintiff has incorrectly named as a
defendant Scada Frequency Allocation Investigation Report.
Upon examination of plaintiff's Complaint, the Court has
determined that the subject name does not refer to a suable
entity, but is a report describing plaintiff's testing
results by Ms. Staninger of IHS. (See Doc. 1 at 3).
Accordingly, Scada Frequency Allocation Investigation Report
is not a proper defendant in this case. Additionally, there
is no indication in the Complaint that plaintiff instead
sought to hold IHS liable for wrongful conduct. To the
contrary, plaintiff appears to use the findings of the IHS
report as support for her claim that she has suffered harm
due to the alleged electronic harassment. As a result, the
Court is able to determine from the body of the Complaint
that plaintiff does not intend to sue IHS.
Court concludes that this action should be dismissed as
frivolous under § 1915(e)(2)(B)(i). A lawsuit will be
properly dismissed as frivolous under § 1915(e)(2)(B)(i)
if the “‘claim [is] based on an indisputably
meritless legal theory' or if it is founded on
‘clearly baseless' factual contentions.”
Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir.
1997) (quoting Neitzke v. Williams, 490 U.S. 319,
327 (1989)). “[A] finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992). Plaintiff's
lawsuit essentially alleges that technology was somehow
implanted in her body without her knowledge or consent, and
that her health is suffering due to the transmission of
satellite frequencies through the implanted technology. These
factual allegations border on delusional. The Tenth Circuit
has affirmed the dismissal of similar lawsuits on
frivolousness grounds under § 1915(e)(2). See,
e.g., Murray v. United States, 475 F. App'x
311, 312 (10th Cir. 2012) (unpublished) (complaint alleging
various conspiracies by the government, including the use of
satellites to damage the plaintiff's reproductive system,
was properly dismissed as frivolous); Thibeaux v.
Cain, 448 F. App'x 863, 864 (10th Cir. 2012)
(unpublished) (pro se lawsuit alleging that a wire had been
implanted in plaintiff's body to monitor his thoughts was
factually frivolous); Flores v. U.S. Atty. Gen., 442
F. App'x 383 (10th Cir. 2011) (unpublished) (affirming
§ 1915(e)(2) dismissal of civil rights complaint
alleging that the government used outer space satellites to
torture plaintiff and his family members); Owens-El v.
Pugh, 16 F. App'x 878 (10th Cir. 2001) (unpublished)
(affirming dismissal of claims as factually frivolous where
prisoner alleged harassment and torture by way of a
mind-control device). Despite the apparent sincerity of
plaintiff's belief in her allegations, it is clear that
this lawsuit is factually frivolous and should thus be
dismissed pursuant to § 1915(e)(2)(b)(i).
Complaint should be dismissed for the additional reason that,
even construing plaintiff's Complaint liberally, the
lawsuit fails to state a claim under §
1915(e)(2)(b)(ii). First, the Complaint alleges that the FCC
is a “United States military base” and
“radio transmitter” (Doc. 1 at 1), but contains
no allegations of any wrongful conduct by the FCC that would
allow plaintiff relief under federal law. If plaintiff seeks
to allege a claim pursuant to Bivens v. Six Unknown
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971) for violation of her constitutional rights, her claim
fails because a Bivens action cannot be brought
against federal agencies, such as the FCC. F.D.I.C. v.
Meyer, 510 U.S. 471, 486 (1994).
with respect to Broadcasting Satellite Service, the only
information plaintiff provides is that this asserted
defendant is a citizen of Korea, but even this statement is
speculative at best. (Doc. 1 at 1). To be clear, it appears
that plaintiff's assertion is based upon Ms.
Staninger's report referencing the existence of various
satellite frequencies with allocations in Korea, but the same
document also references frequency allocations in India,
Japan, Pakistan, Thailand, Azerbaijan, Kyrgyzstan, and
Turkmenistan. (Id. at 113). Further, it is unclear
whether Broadcasting Satellite Service is a legally suable
entity. Indeed, it seems that plaintiff's decision to
name “Broadcasting Satellite Service” as a party
to her lawsuit is solely a result of Ms. Staninger's
references to the existence of broadcasting satellite
services companies generally. (Id.). To the extent
that plaintiff is requesting that the Court investigate which
broadcasting satellite service is responsible for
transmission of the alleged frequencies to her body, this
requested relief has no basis in law. It is not the province