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Albanese v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

July 24, 2017

GRACE ALBANESE, Plaintiff,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Defendant.

          REPORT OF FINDINGS AND RECOMMENDATION (IFP APPLICATION - ECF NO. 1)

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. In Forma Pauperis Application

         Ms. 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. 1984) (collecting cases). A “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).

         Since 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.[1]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 conspiracy.

         Ms. 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.

         Having 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.

         II. Screening the Complaint

         A. Legal Standard

         Pursuant 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).

         Federal 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).

         B. Ms. Albanese's Duplicative Factual Allegations and Claims for Relief

         The 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 equal protection right and obstructing justice because an operator refused to dispatch an officer to investigate individuals who were stalking and spying on her:

[W]hen she asked me why I was whispering and I told her because my neighbors are spying/observing me…. Operators Collins 14128 was obstructing justice because she did not understand that I have to whisper when I call 311 and report laundry room vagrants. So she refused to allow ...

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