                                                                       0Rr0r[\|At
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                                                                                                                                       FTLED
                                                                                                                                     ocT - 2 206
                                                                        (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
