United States District Court, D. Hawaii
RYAN “SASHA-SHAI VAN KUSH” GALLAGHER and THE SHAIVITE TEMPLE, Plaintiffs,
DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants.
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING ACTION
WITHOUT LEAVE TO AMEND. 
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
November 26, 2019, pro se Plaintiffs Reverend Ryan
“Sasha-Shai Van Kush” Gallagher and the Shaivite
Temple filed an application to proceed in forma
pauperis (“IFP Application”), Dkt. No. 2,
along with a civil complaint against the Drug Enforcement
Administration and two individuals (Loren T. Miller and Dan
McCormick). Dkt. No. 1. Because an entity cannot proceed
in forma pauperis, the IFP Application is DENIED
insofar as it concerns the Shaivite Temple and GRANTED as to
Gallagher. However, because the complaint is frivolous, and
it is otherwise a continuation of the frivolous actions
Gallagher has filed throughout the country, this action is
DISMISSED without leave to amend.
The IFP Application
courts can authorize the commencement of any suit “by a
person” without prepayment of fees or security if the
“person” submits an affidavit that demonstrates
an inability to pay. See 28 U.S.C. §
1915(a)(1). While Section 1915(a) does not require a litigant
to demonstrate absolute destitution, Adkins v. E.I. Du
Pont de Nemours & Co., 335 U.S. 331, 339 (1948), the
applicant must nonetheless show that he is “unable to
pay such fees or give security therefor, ” 28 U.S.C.
Gallagher has made the required showing under Section
1915(a). In the IFP Application, Dkt. No. 2, Gallagher states
that he is employed by the Shaivite Temple but does not
receive any pay. Further, Gallagher states that he receives
no other income, has no money in any bank account, and he is
homeless. In light of these figures, Gallagher's income
falls below the poverty threshold identified by the
Department of Health and Human Services'
(“HHS”) 2019 Poverty Guidelines. See HHS
Poverty Guidelines, available at:
addition, Gallagher has insufficient assets to provide
security. As a result, the Court GRANTS Gallagher's IFP
Application, Dkt. No. 2.
however, cannot represent the Shaivite Temple because
entities can only appear in federal court through a licensed
attorney. See, e.g., Taylor v. Knapp, 871
F.2d 803, 806 (9th Cir. 1989) (nonprofit organization); LR
81.1(b); see also Rowland v. California Men's
Colony, 506 U.S. 194, 202-203 (1993).Therefore, even if
the Complaint was not frivolous, see infra Part II,
the Shaivite Temple would not be able to proceed with this
action until it was either represented by a licensed attorney
and/or severed from the action.
Court liberally construes a pro se complaint,
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987), but cannot act as counsel for a pro se
litigant, such as by supplying the essential elements of a
claim. Pliler v. Ford, 542 U.S. 225, 231 (2004);
Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d
266, 268 (9th Cir. 1982).
standard for dismissal of a complaint that fails to state a
claim is the same under 28 U.S.C. Section 1915(e)(2)(B)(ii)
and Fed.R.Civ.P. 12(b)(6). Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998); Jones v.
Schwarzenegger, 723 Fed.Appx. 523, 524 (9th Cir. 2018);
see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
Cir. 2012) (same standard under Section 1915A). That is, the
Court must dismiss the complaint if it does not
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Court must also dismiss a complaint if it is “frivolous
or malicious.” 28 U.S.C. § 1915(e)(2)(B)(i).
“[A] complaint, containing as it does both factual
allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact.”
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 325 (1989)). A
claim falls in the former class when the claimant (i) seeks
relief against defendants who are “immune from suit,
” or (ii) asserts an “infringement of a legal
interest which clearly does not exist.”
Neitzke, 490 U.S. at 327. Claims are factually
frivolous when they describe “fantastic or delusional
scenarios.” Neitzke, 490 U.S. at 327-328;
accord Denton, 504 U.S. at 33 (“[A] finding of
factual frivolousness is appropriate when the facts alleged
rise to the level of the irrational or the wholly
Complaint, Dkt. No. 1, Gallagher holds himself out as a Hindu
Shaivite who was raised in a “magical herb
tradition.” Id. at 2. He asserts jurisdiction
under the Federal Tort Claims Act, cf. 28 U.S.C.
§§ 1346(b)(1), 2674-2680, and also alleges
violations of “Human Rights and Civil Religious
Rights” under unspecified constitutional and treaty
law. Id. at 1-2. Gallagher claims that
“overzealous enforcement of ‘Controlled'
Substance Law” caused unnamed doctors to allow his
brother to die and therefore the DEA also “allowed
[his] brother to die by direct action, acquiescence or
omission.” Id. at 1-2. According to Gallagher,
his brother died at age 12 and “could have been saved
by Cannabinoids, ” but the doctors refused.
Id. Without any specific details, Gallagher also
avers that the same “overzealous enforcement” of
controlled substances has caused the DEA “to ignore and
even actively attack Religion” by “spying on
[his] activity” and “meddling” in federal
court case outcomes. Id. at 1. Gallagher alleges
that in October 2017, he “petitioned the DEA, ”
but has not received any substantive response. Id.
at 2. He now seeks $5.6 million in damages for
himself, his family, and his religious organization.
The Complaint is Frivolous
outset, it is apparent that the Shaivite Temple has not
asserted any claim. Other than vague references to religion
in general, nothing suggests the Shaivite Temple's
interests are at stake. Rather, the allegations in the
Complaint relate only to Gallagher's personal interests,
i.e., the death of his brother. For several reasons,
the Court concludes that Gallagher's claims are patently
the DEA is not a proper defendant under the FTCA. “The
FTCA is the exclusive remedy for tortious conduct by the
United States, and it only allows claims against the United
States. Although such claims can arise from the acts or
omissions of United States agencies (28 U.S.C. § 2671),
an agency itself cannot be sued under the FTCA.”
See, e.g., Dichter-Mad Family Partners, LLP v.
United States, 709 F.3d 749, 761 (9th Cir. 2013)
(quoting FDIC v. Craft, 157 F.3d 697, 706 (9th Cir.
1998)); 28 U.S.C. § 2679(a) (establishing ...