United States District Court, D. Nevada
REPORT OF FINDINGS AND RECOMMENDATION (IFP
APPLICATION - ECF, 1)
A.LEEN UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff Grace Albanese's
Application to Proceed In Forma Pauperis (ECF No. 1)
pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local
Rules of Practice. This Application is referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B)
and LR IB 1-3 and 1-4 of the Local Rules of Practice.
In Forma Pauperis Application
Albanese is proceeding in this action pro se, which
means that she is not represented by an attorney.
See LSR 2-1. She has requested authority pursuant to
28 U.S.C. § 1915 to proceed in forma pauperis
(“IFP”), meaning without prepaying the filing
fees, and submitted a proposed complaint. Pursuant to 28
U.S.C. § 1914(a) and the Judicial Conference Schedule of
Fees, a filing fee and administrative fee totaling $400 is
required to commence a civil action in a federal district
court. The court may authorize a person to commence an action
without the prepayment of fees and costs if the person files
an IFP application including an affidavit stating that he or
she is unable to pay the initial fees. See 28 U.S.C.
§ 1915(a)(1); LSR 1-1. However, the court must apply
“even-handed care” to ensure that “federal
funds are not squandered to underwrite, at public expense,
either frivolous claims” or the colorable claims of a
plaintiff “who is financially able, in whole or in
material part, to pull his own oar.” Temple v.
Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I.
“district court may deny leave to proceed in forma
pauperis at the outset if it appears from the face of the
proposed complaint that the action is frivolous or without
merit.” Minetti v. Port of Seattle, 152 F.3d
1113, 1115 (9th Cir. 1998) (quoting Tripati v. First
Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th
Cir. 1987)). A complaint that “merely repeats pending
or previously litigated claims” is frivolous. See,
e.g., Cato v. United States, 70 F.3d 1103, 1105
n.2 (9th Cir. 1995) (citation omitted); see also Denton
v. Hernandez, 504 U.S. 25, 30 (1992); Martinez v.
Bureau of Immigration & Customs Enf't, 316 F.
App'x 640, 641 (9th Cir. 2009).
March 2016, Ms. Albanese has filed 45 federal cases in the
District of Nevada, 42 of which are currently ongoing and 13
of which are pending before the undersigned magistrate
judge.In all, she has sued the Las Vegas
Metropolitan Police Department (“LVMPD”) 30 times
in just over a year. Most of Albanese's actions assert
the same or very similar allegations: various persons stalk
or spy on Albanese in her bedroom and when she travels around
Las Vegas, sometimes using listening devices or hacking into
her phone, but federal and state law enforcement officers
ignore her requests for help and refuse to investigate or
arrest the wrongdoers. She asserts similar legal claims in
all her cases pursuant to 42 U.S.C. § 1983: violations
of her due process, equal protection, and free speech rights,
obstruction of justice, defamation, public corruption, and
Albanese has been warned by the undersigned as well as
Magistrate Judge Cam Ferenbach that duplicative lawsuits with
virtually identical causes of action are subject to dismissal
under 28 U.S.C § 1915. See Albanese v. Fed. Bureau
of Investigations, 2:17-cv-01599-JAD-VCF, June 19, 2017
Report & Recommendation (ECF No. 3); Albanese v. Las
Vegas Metro Police Dep't, 2:17-cv-00577-GMN-PAL,
June 30, 2017 Report & Recommendation (ECF No. 68).
Additionally, Judge Ferenbach has recommended that she be
declared a vexatious litigant and be prohibited from filing
any complaint, petition, or other document without first
obtaining leave from the Chief Judge. His report and
recommendation is currently pending before United States
District Court Judge Jennifer A. Dorsey.
reviewed her complaint in this case, the court finds that her
claims are frivolous and duplicative and will recommend
denial of her IFP application and dismissal of the complaint.
Screening the Complaint
to § 1915(e), federal courts must screen all IFP
complaints prior to a responsive pleading. Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)
(§ 1915(e) applies to “all in forma pauperis
complaints”). Allegations in a pro se
complaint are held to less stringent standards than formal
pleading drafted by lawyers. Erickson v. Pardus, 551
U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338,
342 n.7 (9th Cir. 2010). However, pro se litigants
“should not be treated more favorably than parties with
attorneys of record, ” Jacobsen v. Filler, 790
F.2d 1362, 1364 (9th Cir. 1986); rather, they must follow the
same rules of procedure that govern other litigants.
Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
courts are required to dismiss an IFP action if the complaint
fails to state a claim upon which relief may be granted, is
legally “frivolous or malicious, ” or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). A complaint may be
characterized as malicious “when it is ‘filed
with the intention or desire to harm another'.”
Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013)
(quoting Andrews v. King, 398 F.3d 1113, 1121 (9th
Cir. 2005)). Allegations are frivolous when they are
“clearly baseless” or lack an arguable basis in
law and fact. Denton, 504 U.S. at 32; see also
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolous
claims include those based on legal conclusions that are
untenable (e.g., claims against defendants who are
immune from suit or claims of infringement of a legal
interest that clearly does not exist), as well as claims
based on fanciful factual allegations (e.g.,
fantastic or delusional scenarios). Neitzke, 490
U.S. at 327-28; McKeever v. Block, 932 F.2d 795, 798
(9th Cir. 1991); Andrews, 398 F.3d at 1121. In
determining whether a complaint is frivolous and therefore
warrants complete or partial dismissal, a court is not bound
“to accept without question the truth of the
plaintiff's allegations.” Denton, 504 U.S.
at 32. A complaint may be dismissed as frivolous if it
“merely repeats pending or previously litigated
claims.” Cato, 70 F.3d at 1105 n.2 (citation
omitted); see also Aziz v. Burrows, 976 F.2d 1158,
1158 (8th Cir. 1992) (“district courts may dismiss a
duplicative complaint raising issues directly related to
issues in another pending action brought by the same
party”); Adams v. Cal. Dep't of Health
Servs., 487 F.3d 684, 688 (9th Cir. 2007)
(“Plaintiffs generally have no right to maintain two
separate actions involving the same subject matter at the
same time in the same court and against the same
defendant.”), overruled in part on other grounds by
Taylor v. Sturgell, 553 U.S. 880 (2008); McWilliams
v. State of Colorado, 121 F.3d 573, 574 (11th Cir. 1997)
(holding that repetitious action may be dismissed as
frivolous or malicious).
Ms. Albanese's Duplicative Factual Allegations and Claims
court finds that the complaint in this case is frivolous
because it merely repeats claims pending in other cases.
Here, Albanese is suing LVMPD under 42 U.S.C. § 1983
for, among other things, violating her civil rights by
denying her equal protection right and obstructing ...