United States District Court, D. Utah, Central Division
C. Nielson District Judge.
REPORT AND RECOMMENDATION
Cecilia M. Romero United States District Magistrate Judge.
case is before the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B) from Judge Howard Nielson. Plaintiff Jason Aron
Presley was granted leave to proceed in forma
pauperis (ECF 2) and filed a pro se complaint
on June 10, 2019 (ECF 3). Plaintiff now moves the Court for
appointment of counsel (ECF 6). As set forth below,
the undersigned recommends this case be dismissed for failure
to state a claim on which relief may be granted and
recommends the Motion for Appointment of Counsel be denied or
The Complaint Should Be Dismissed
brings this action against approximately 44 Defendants.
Because Plaintiff is acting pro se, the Court
construes his pleadings liberally and holds them to a less
stringent standard than formal pleadings drafted by lawyers.
See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Notwithstanding this generous standard, the
court will not assume the role of advocate for a pro
se litigant and it “will not supply additional
facts, nor will [it] construct a legal theory for [a pro se]
plaintiff that assumes facts that have not been
pleaded.” Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989).
the Court grants a party's request to proceed in
forma pauperis without payment of fees, as it did so for
Plaintiff in this matter, it is required to “dismiss
the case at any time if the court determines that …
the action … fails to state a claim on which relief
may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In
deciding whether a complaint fails to state a claim for
relief, the Court looks to the same standard used for
analyzing motions to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. See Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). The
Court looks for plausibility in the complaint and
particularly, “look[s] to the specific allegations in
the complaint to determine whether they plausibly support a
legal claim for relief. Rather than adjudging whether a claim
is ‘improbable,' ‘[f]actual allegations [in a
complaint] must be enough to raise a right to relief above
the speculative level.'” Id. at 1218
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)) (other quotations and citation omitted).
Although a complaint “does not need detailed factual
allegations, ” it must contain “more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555; see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (explaining Rule
8(a)(2)'s pleading standard “demands more than an
accusation”). Further, a complaint cannot rely on
“‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557).
reviewing Plaintiff's Complaint, it is difficult for the
Court to ascertain any viable cause of action. Plaintiff
complains of other federal court orders denying his
application “against this capitol case of domestic
violence by Vernon Presley who murdered Mallissa [sic] and
Gladys Presley.” Complaint p. 3. In fact, attached to
Plaintiff's Complaint is an order of dismissal with
prejudice from Judge Campbell. In that order, Judge Campbell
found another case to have similar meritless legal theories
as to those in this case. (ECF 3-1).
Complaint Plaintiff sets forth some facts behind the murder
of Mallissa [sic] and relates details about a juvenile court
case involving Presley Young and other circumstances
supposedly involving Elvis Presley. See id.
pgs. 4-9. At some point, “petitioners were then
toxically gassed out of their house” in Taylorsville,
Utah by Abbott Chemical and the Department of Social Security
denied petitioners disability. Id. p. 12. Among the
relief Plaintiff requests is inter alia: the
“prosecution of this domestic violence”,
“DNA testing to determine Presley Youngs [sic]
paternity”, a repeal of an FBI exempt order, the repeal
of a mental health competency evaluation, a “stay on
all orders on appeal in this capitol case”, and
“protective orders for petitioners, their children and
family.” Id. p. 13. In short, Plaintiff's
Complaint as presently pled, is a long “unadorned,
Iqbal, 556 U.S. at 678, that is inadequate under the
Tenth Circuit has stated that “[d]ismissal of a pro se
complaint for failure to state a claim is proper only where
it is obvious that the plaintiff cannot prevail on the facts
he has alleged and it would be futile to give him an
opportunity to amend.” Kay v. Bemis, 500 F.3d
1214, 1217-18 (10th Cir. 2007). This case fits within the
category of futility. The in forma pauperis statute
affords judges the authority to dismiss claims based on
indisputably meritless legal theories. See
Neitzke v. Williams, 490 U.S. 319, 327 (1989).
“[A] finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or
the wholly incredible.” Denton v. Hernandez,
504 U.S. 25, 33 91992). Here, in light of the asserted facts,
the court finds this action frivolous. The facts present
“claims describing fantastic or delusional
scenarios” and therefore must be dismissed.
Neitzke, 490 U.S. at 328. And, Plaintiff's
Complaint should be dismissed with prejudice because the
allegations cannot be remedied “through more specific
pleading.” Harold v. Univ. of Colo. Hospital,
680 Fed.Appx. 666, 671 (10th Cir. 2017).
Plaintiff's Motion for Appointment of Counsel Should Be
Denied or Deemed Moot
28 U.S.C. § 1915(e)(1), the “court may request an
attorney to represent any person unable to afford
counsel.” “The appointment of counsel under this
statute is a matter within the discretion of the district
court.” McCarthy v. Weinberg, 753 F.2d 836,
838 (10th Cir. 1985). And, the “burden is upon the
applicant to convince the court that there is sufficient
merit to his claim to warrant the appointment of
counsel.” Id. The Court looks to a variety of
factors when deciding whether to appoint counsel
“including ‘the merits of the litigant's
claims, the nature of the factual issues raised in the
claims, the litigant's ability to present his claims, and
the complexity of the legal issues raised by the
claims.'” Rucks v. Boergermann, 57 F.3d
978, 979 (10th Cir. 1995) (quoting Williams v.
Meese, 926 F.2d 994, 996) (10th Cir. 1991)). Here,
Plaintiff has failed to convince the Court that there is
sufficient merit to his claims to warrant the appointment of
counsel. As such, Plaintiff's motion should be denied or
deemed moot following dismissal.
undersigned recommends that this case be dismissed for
failure to state a claim upon which relief may be granted.
Plaintiff's Motion for ...