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Gallagher v. Drug Enforcement Administration

United States District Court, D. Hawaii

January 2, 2020




         On 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.[2]

         I. The IFP Application

         Federal 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. § 1915(a).

         Here, 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: In addition, Gallagher has insufficient assets to provide security. As a result, the Court GRANTS Gallagher's IFP Application, Dkt. No. 2.

         Gallagher, 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).[3]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.

         II. Screening

         The 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).

         The 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).

         The 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 incredible[.]”)).

         In the 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.[4] He now seeks $5.6 million in damages for himself, his family, and his religious organization. Id.

         A. The Complaint is Frivolous

         At the 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 frivolous.

         First, 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. ยง 2679(a) (establishing ...

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