Opinion
3:24-cv-00862-SB
06-14-2024
EUGENIA SONG, Plaintiff, v. OWEN MINOR INC., Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Eugenia Song (“Song”) filed this action against Defendant Owen Minor Inc. (“Owen Minor”) on May 29, 2024. Song also filed an application to proceed in forma pauperis (“IFP”). The Court's review of Song's IFP application reveals that Song is unable to afford the filing fee. The Court therefore grants Song's IFP application. For the reasons explained below, however, the Court recommends that the district judge enter judgment dismissing this action, with prejudice, because Song's complaint is frivolous and duplicative.
Song did not provide answers to all of the questions on her IFP application, but the Court concludes that amendment is unnecessary because this action must be dismissed, and because in Song's other recently filed IFP application in this district, Song provided the answers in question.
LEGAL STANDARDS
The IFP statute, which is codified at 28 U.S.C. § 1915, provides, in relevant part, that a district “court shall dismiss [a plaintiff's IFP complaint] at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that Section “1915(e) applies to all [IFP] complaints, not just those filed by [adults in custody]”). Section 1915(e) “authorizes ‘sua sponte dismissals of [IFP] cases[.]'” Hebrard v. Nofziger, 90 F.4th 1000, 1006-07 (9th Cir. 2024) (citing Jones v. Bock, 549 U.S. 199, 214 (2007)).
A district court may dismiss an IFP complaint if it is frivolous and duplicative of the plaintiff's previously filed actions. For example, in Williams v. Paramo, 830 Fed.Appx. 981 (9th Cir. 2020), the self-represented plaintiff filed a 42 U.S.C. § 1983 action alleging, among other things, Eighth Amendment and conspiracy claims against prison officials. Id. at 981-82. The plaintiff appealed after the “district court sua sponte dismissed with prejudice [the plaintiff's] amended complaint for failure to state a claim and as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).” Id. The Ninth Circuit held that the district court did not err in dismissing the plaintiff's Eighth Amendment claims or related conspiracy claims. Id. at 982. In support, the Ninth Circuit explained that “[i]n connection with its preliminary screening” under the IFP statute, “the district court permissibly took judicial notice of multiple actions in which [the plaintiff] unsuccessfully pursued claims predicated on [food poisoning-related] allegations . . . and concluded that the poisoning claim alleged in the amended complaint in [the plaintiff's current] action was duplicative and frivolous.” Id. The Ninth Circuit added that it was appropriate to dismiss “without leave to amend because further amendment would have been futile.” Id.
Courts “have a duty to read a pro se complaint liberally,” Sernas v. Cantrell, 857 Fed.Appx. 400, 401 (9th Cir. 2021), and should treat self-represented “litigants . . . with ‘great leniency' when evaluating compliance with ‘the technical rules of civil procedure.'” Seals v. L.A.Unified Sch. Dist., 797 Fed.Appx. 327, 327 (9th Cir. 2020) (quoting Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986)). As the Ninth Circuit has explained, there is a “good reason” that courts “afford leeway to [self-represented] parties, who appear without counsel and without the benefit of sophisticated representation: ‘Presumably unskilled in the law, the [self-represented] litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel.'” Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th Cir. 2023) (quoting Lopez, 203 F.3d at 1131).
DISCUSSION
The Court recommends that the district judge dismiss Song's complaint with prejudice because the IFP complaint and exhibits that Song has filed in this district demonstrate that this action is frivolous and duplicative.
I. SONG'S LITIGATION HISTORY
A. Song's Current Complaint
Song, who identifies herself as a Texas resident and Owen Minor as a Virginia corporation, invokes this Court's diversity jurisdiction under 28 U.S.C. § 1332. (Compl. at 1-3, 6-7, ECF No. 1; Civil Cover Sheet at 1, ECF No. 1-1.) According to Song, this case concerns the actions of Robert Henkel (“Henkel”), a Missouri resident who Song identifies as Owen Minor's trustee, a member of Owen Minor's board of directors, and a supervisor and chief operating officer to whom Song reported over fifteen years ago, during a business school internship and post-graduate employment at Ascension Health, a Missouri nonprofit healthcare system. (Compl. at 2, 6-7.)
Song alleges that Henkel has been involved in her “personal life [for] many years after [she] separat[ed] from Ascension Health[.]” (Id. at 7.) Specifically, Song alleges that Henkel has recently “tak[en] phone calls . . . in secret” regarding Song, and that Owen Minor has “accessed [Song's] electronic mail . . ., listened to [Song's cell] phone conversations[,] . . . and . . . wire-tapp[ed] and pre-text[ed] [Song] with the use of military software[, which] was provided by a faculty member at Columbia University,” a New York-based school that Song attended after working at Ascension Health. (Id.) Furthermore, Song alleges that (1) “private investigators have spied on her and gathered extensive background information on her spouse and other members of her extended family,” (2) Henkel “obtained phone records under false pretenses . . . and tried to install spyware on [Song's] computer,” (3) Owen Minor is effectively “paying people” to use “virtual space” to “forcibl[y] stay in [Song's] house,” in violation of the Third Amendment's proscription against “quartering troops” in any house during peacetime, without the owner's consent, (4) Henkel “funded and signed-off” as an “executive” on the foregoing “military activities,” and (5) the “source of most of the information [underlying the allegations in Song's complaint] is Interpol and military voices [that] resemble auditory hallucinations[, which Song] believe[s] . . . are admissible in court.” (Id. at 7-9.)
“‘Social engineering' or ‘pretexting' is a technique in which the attacker invents a scenario to persuade, manipulate, or trick the target into performing an action or divulging information.” In re Premera Blue Cross Customer Data Sec. Breach Litig., No. 3:15-md-2633-SI, 2019 WL 3410382, at *4 n.2 (D. Or. July 29, 2019).
The Third Amendment provides that “[n]o soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.
Interpol is “headquartered in Lyon, France,” El Omari v. Int'l Crim. Police Org., 35 F.4th 83, 88 (2d Cir. 2022), and is “the common name of the International Criminal Police Organization, a 190 [plus]-country intergovernmental organization that facilitates international police cooperation.” United States v. Frederick, 789 Fed.Appx. 123, 126 n.2 (11th Cir. 2019) (quoting Lehman v. Lucom, 727 F.3d 1326, 1329 (11th Cir. 2013)). “Although [Interpol] is sometimes depicted in the popular culture as an operational law enforcement organization along the lines of the FBI, Interpol's primary function is simply to facilitate communications between the various domestic police agencies in its . . . participating countries.” El Omari, 35 F.4th at 83.
B. Song's Previous Actions
In recent years, Song has filed numerous complaints in federal district courts across the country, all of which appear to involve related and duplicative allegations about harm that Song suffered because of a Columbia University psychological program or project and related military technology.
The Court may take judicial notice of matters of public record, such as court filings and records. SeeUnited States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records[.]”) (citations omitted); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”); see also FED. R. EVID. 201(c)(1) (stating that “[t]he court . . . may take judicial notice on its own”); Blyden v. Navient Corp., No. 14-cv-02456, 2016 WL 6601658, at *1 n.4 (C.D. Cal. Feb. 16, 2016) (“[T]he Court takes judicial notice of these documents on its own motion as they are court filings in the public record and are related to the matter before the Court.”) (simplified).
1. Summary of Previous Actions
Song has filed twenty federal district court cases between March 10, 2023 and the present:
• Song v. Burke, No. 3:23-cv-00349-JR, 2023 WL 4424759, at *1-5 (D. Or. May 3, 2023) (Song I) (reflecting that after dismissing the initial IFP complaint filed on March 10, 2023, the court dismissed Song's amended complaint, which “suffer[ed] from many of the same defects as her initial
complaint”), findings and recommendation adopted in part, 2023 WL 4249212, at *1-2 (D. Or. June 29, 2023);
• Song v. Landers, No. 3:23-cv-00372-YY, 2023 WL 4535179, at *1-6 (D. Or. May 2, 2023) (Song II) (noting that after Song filed suit on March 15, 2023, the court dismissed Song's initial, first amended, and second amended IFP complaints), findings and recommendation adopted t 2023 WL 4535165, at *1 (D. Or. July 12, 2023);
• Song v. Columbia Univ., No. 3:23-cv-00407-HZ, 2023 WL 3004836, at *1-2 (D. Or. Apr. 18, 2023) (Song III) (dismissing Song's initial March 21, 2023 IFP complaint against Columbia University and Peter Coleman (“Coleman”), and noting that Song alleged that a Columbia University affiliate “routinely engage[d] in psychology research of . . . faculty and incoming members of the student body,” Columbia University had “routine contact with the United States Army for the purposes of this research,” and Song “suffer[ed] prolonged effects of this research conducted on her many years ago when she was a student”); see also Song v. Coleman, No. 3:23-cv-00407-JR, 2023 WL 4275389, at *1-5 (D. Or. May 3, 2023) (Song III) (dismissing Song's amended complaint), findings and recommendation adopted in part, 2023 WL 4267435, at *1-2 (D. Or. June 29, 2023);
• Song v. U.S. Gov't, No. 3:23-cv-00573-JR, 2023 WL 4535193, at *1-3 (D. Or. June 7, 2023) (Song IV) (noting that after the court dismissed the initial IFP
complaint that Song filed on April 18, 2023, Song filed her “amended complaint and a number of separately docketed supporting ‘Exhibits,'” all of which the court dismissed), findings and recommendation adopted, 2023 WL 4535167, at *1 (D. Or. July 12, 2023);
• Song v. Coleman, No. 1:23-cv-04526, 2023 WL 4409990, at *1 (S.D.N.Y. June 1, 2023) (Song V) (dismissing the complaint Song filed against Coleman on May 30, 2023, because Song did not pay the filing fee or file an IFP application);
• Song v. Columbia Univ., No. 1:23-cv-04532, 2023 WL 4409989, at *1 (S.D.N.Y. June 1, 2023) (Song VI) (dismissing the complaint that Song filed against Columbia University on May 30, 2023 because Song did not pay the filing fee or file an IFP application);
• Song v. Coleman, No. 1:23-cv-04740 (S.D.N.Y. June 5, 2023) (Song VII) (dismissing Song's action as duplicative of Case No. 1:23-cv-04526, i.e., Song V);
• Song v. Hoch, No. 1:24-cv-02532 (S.D.N.Y. Apr. 1, 2024) (Song VIII) (reflecting that the court issued an order directing Song to pay the filing fee or file an IFP application and that Song alleges that Emily Hoch (“Hoch”) of the Rand Corporation is using military computer technology or a militarized computer weapon to assault and spread misinformation about Song and Coleman is Hoch's co-conspirator and military program supervisor);
• Song v. Hoch, No. 1:24-cv-02739 (S.D.N.Y. Apr. 8, 2024) (Song IX) (dismissing Song's action as duplicative of Case No. 1:24-cv-02532, i.e., Song VIII);
• Song v. CIA, No. 3:24-cv-00697-SB, 2024 WL 2251865, at *1 (D. Or. May 10, 2024) (Song X) (recommending that the district judge enter judgment dismissing Song's first April 24, 2024 complaint, with prejudice, because it was frivolous, duplicative, and barred by res judicata in light of Song IV), findings and recommendation adopted, 2024 WL 2251628, at *1-2 (D. Or. May 17, 2024);
• Song v. CIA, No. 3:24-cv-00698-SB, 2024 WL 2251730, at *1-8 (D. Or. May 10, 2024) (Song XI) (relying on the Freedom of Information Act's specific jurisdictional requirements and recommending that the district judge dismiss Song's second April 24, 2024 complaint, without prejudice and without leave to refile in this court, because venue was improper in the District of Oregon), findings and recommendation adopted, 2024 WL 2251632, at *1-2 (D. Or. May 17, 2024);
• Song v. Kranz, No. 1:24-cv-03528, 2024 WL 2701970, at *1-2 (S.D.N.Y. May 22, 2024) (Song XII) (indicating that after Song filed her initial complaint on May 3, 2024, which the docket demonstrates included allegations about medical research on Song, military software, and a child psychologist from Columbia University, the district court determined that venue was proper in the United States District Court for the Central District of California and thus transferred the case to that district (citing 28 U.S.C. §§ 1391(b)(1), 1404(a),
and 1406(a))); see also Song v. Kranz, No. 2:24-cv-04576 (C.D. Cal. May 31, 2024) (Song XII);
• Song v. Trs. of Columbia Univ., No. 1:24-cv-03599 (S.D.N.Y. May 6, 2024) (Song XIII) (reflecting that the court issued an order directing Song to pay the filing fee or file an IFP application and that Song alleges claims against Columbia University's trustees related to Coleman's military psychiatric research, including an initial phase that Song completed in 2016 and that Song's “internship supervisor from Yale University” “financial[ly] sponsor[ed]”).
• Song v. Columbia Univ., No. 1:24-cv-03600 (S.D.N.Y. May 6, 2024) (Song XIV) (demonstrating that the court issued an order directing Song to pay the filing fee or file an IFP application and that Song alleges claims against Columbia University based on “the work” of Coleman, a “professor in socialpsychology,” as well as inappropriate use of “alumni . . . for military psychiatry research”);
• Song v. Morgan Stanley & Co. LLC, No. 3:24-cv-00776-YY (D. Or. May 10, 2024) (Song XV) (recommending that the district judge enter an order dismissing Song's initial complaint with prejudice because she “failed to allege a valid claim for relief” and has “filed numerous cases based on the same frivolous allegations,” “along with an admonishment that future filings of a similar nature may result in a finding that plaintiff is a vexatious litigant”);
• Song v. Interpol for Neth., No. 1:24-cv-03797 (S.D.N.Y. May 10, 2024) (Song XVI) (showing that Song sought an injunction and alleged claims related to communications “subject to search [on Song's] computer,” military “weaponry,” a military program and activities, Columbia University, Coleman, the U.S. Army, Song's demand to “[t]ell . . . Coleman and his team to back off or [she] will kill him”);
• Song v. Virgil, No. 1:24-cv-03820 (S.D.N.Y. May 16, 2024) (Song XVII) (reflecting that the court issued an order directing Song to pay the filing fee or file an IFP application, Song sued a Florida resident associated with the U.S. Army and Columbia University based on a CIA program and use of military computer technology, Song incorporated the Song I-IV case numbers by reference, and Song made the Song II second amended complaint part of her initial pleading);
• Song v. Trs. of Columbia Univ., No. 1:24-cv-04014 (S.D.N.Y. May 21, 2024) (Song XVIII) (demonstrating that the court issued an order directing Song to pay the filing fee or file an IFP application and Song alleged that Coleman and Columbia University committed fraud related to her “personal property”);
• Song v. Owen Minor Inc., No. 1:24-cv-04148 (S.D.N.Y. May 22, 2024) (Song XIX) (indicating that Song filed a complaint nearly identical to the complaint presently before this Court, as well as the same motion to subpoena records related to Owens Minor, Henkel, John Landers, Morgan Stanley, the U.S. Army, the FBI, Coleman, and Columbia University); and
• Song v. Owen Minor Inc., No. 3:24-cv-00862-SB (D. Or. May 29, 2024) (Song XX) (filing an action duplicative of Song XIX despite courts' previous dismissals on this ground and without any apparent notice to the court in Song XIX, who on June 3, 2024, ordered Song to pay filing fee or file an IFP application).
The judge who issued the initial April 18, 2023 decision in Song III (i.e., Case No. 3:23-cv-00407) reassigned the case before a different judge issued the second decision on May 3, 2023.
Based on the litigation history discussed above and below, it is apparent that (1) courts often dismiss Song's cases not long after she filed them, (2) in multiple cases, Song repeatedly failed to cure deficiencies that the courts previously identified, or did not attempt to do so, (3) Song has consistently demonstrated an inability (or potential unwillingness) to follow court orders regarding whether venue is proper, a litigant's need to pay a filling fee or file an IFP application, and a court's obligation to dismiss frivolous and/or duplicative IFP complaints, and (4) Song's actions have posed, and will likely continue to pose, an unnecessary burden on courts and their personnel.
2. Song IV and Song X
Song IV and Song X provide useful guidance. In Song IV, Song filed an IFP complaint against the “U.S. Government” and an individual named Bruce Newsome (“Newsome”), who allegedly resided in San Diego County, California. 2023 WL 4535193, at *1. Song's amended complaint included “vague” allegations about an “awful” experience that she had with the CIA, “six hundred family CIAs in existence in the country,” and a “program” that Newsome designed, which at one point was called “Project Gorgeous” and located at a Navy base in San Diego County. 2023 WL 4535193, at *1-2 (simplified). Song's amended complaint also reflected that her “prayer for relief [was] to be out of th[e] program” given that she had “no clue why [she was] [t]here in the first place.” Id. at *1 (brackets omitted). Further, the exhibits that Song filed in support of her amended complaint consisted of, among other things: (1) a list of individuals and entities that “allegedly have access to military technology,” (2) a “list of purported wrongdoers,” including a co-worker (Henkel), a “Dr. Coleman” (i.e., Coleman, who works at Columbia University), and “Bruce Newsome of the U.S. Army,” (3) Song's “records requests to the National Security Division, Department of Justice and U.S. National Central Bureau-Interpol” regarding Newsome and Project Gorgeous, (4) a summary of Song's “[r]elated [c]ases” from this district, and (5) “documents from [Song's] other cases, . . within and outside this [d]istrict.” Id. at *1 n.1 (simplified).
Notably, Song's exhibits also included an April 19, 2023 letter from a CIA information and privacy coordinator regarding Song's March 29, 2023 “letter requesting records on [her]self.” See Exhibits to Amended Complaint at 9-10, Song v. U.S. Gov't, No. 3:23-cv-00573-JR (D. Or. May 27, 2023), ECF No. 20 (emphasis omitted). The privacy coordinator informed Song that pursuant to federal regulations, Song needed to provide additional “identifying information . . . before [the CIA could] effectively search [its] files . . . [and] begin processing [her] request.” Id. at 9. The privacy coordinator also explained that Song could “submit any additional information [that she] wish[e]d to help [the CIA] ensure that [its] search [was] as comprehensive and accurate as possible,” the CIA would not be providing copies of “correspondence and related documents” from any previous requests for information that it may have received from Song, and the CIA would hold Song's “request [open] for 45 business days from the date of [the April 19, 2023] letter pending receipt of the required information” from Song. (Id. at 10.)
Song also alleged in her exhibits that a “board-certified psychiatrist cleared [Song] of any mental health problems in advance” of the events in question, Coleman's “[r]esult [of] schizophrenia” was “not true,” Song's case concerns a national program that Columbia University's faculty started in 2014, and “Coleman received the Pope's CIA key[.]” Id., ECF No. 14. Additionally, Song's exhibits included a timeline that she purportedly submitted in support of a request for a restraining order to a California state court. Id., ECF No. 22-2 at 2. The timeline includes allegations about “mouth burns” that Song received from “the technology, [and] Bruce Newsome,” a voicemail that Song received from Newsome stating that Song “‘may not talk to anybody and allowing 1 phone call per day' via [Newsome's] military computer database,” which prompted Song to “phone[] 911,” and threatening voicemails that Song received. Id.
In an opinion dated June 7, 2023, the magistrate judge, who previously granted Song's application to proceed IFP, recommended that the district judge dismiss Song's amended complaint and the numerous exhibits that Song filed in support of her amended complaint. See 2023 WL 4535193, at *1-3. The magistrate judge noted that she had already advised Song that a Freedom of Information Act (“FOIA”) action “cannot be maintained against private individuals or the entire Government of the United States,” and therefore “to the extent the amended complaint [could] be construed as alleging a FOIA claim, [Song could not] proceed against the named defendants.” Id. at *2.
The magistrate judge also emphasized that Song's “amended complaint fail[ed] to allege any connection to the State of Oregon,” and “[a]s described at length in regard to [Song's] prior pleadings across her lawsuits, venue must be proper in order for a particular case to proceed in the selected forum.” Id. at *2 (citing Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)). The magistrate judge explained that Song failed to establish that venue was proper in the District of Oregon:
Although the Court previously identified these deficiencies, [Song] has not attempted to cure them via her amended complaint, which is wholly silent as to where (and when) the underlying events occurred. Moreover, [Song's] “Exhibits” make clear that she has never resided in Oregon, sought education from an
Oregon-based institution, or performed work for an Oregon-based company, and the only individually named defendant resides in California. See Pl.'s Exhibits (docs. 17-18) (listing plaintiff's residences, educational institutions, and employers and their locations from 2000 through 2022); see also Pl.'s Notice of Change of Address (doc. 15) (plaintiff requesting electronic correspondences in lieu of paper copies, as the designated address in Fort Worth, Texas, is “her school” which “has . . . limited mailroom operation[s]” during the summer). In sum, due to the dearth of well-plead facts, it is impossible for the Court to reasonably infer that plaintiff's claims are plausible and fall within the statute of limitations, or that venue in this District is proper.Id.
For these reasons and others, the magistrate judge recommended that the district judge dismiss Song's amended complaint without prejudice and advise Song that if she failed timely to amend her complaint within thirty days, the district judge would dismiss the case with prejudice. Id. at *3.
In an Order dated July 12, 2023, the district judge noted that Song did not file any objections and adopted the magistrate judge's opinion in full. See 2023 WL 4535167, at *1. The district judge advised Song that she could “file an amended complaint by August 11, 2023 that complies with the Federal Rules of Civil Procedure and [the magistrate judge's opinion],” and [f]ailure to file an amended complaint by August 11, 2023 [would] result in the dismissal of [the] action with prejudice.” Id. Song did not file an amended complaint before or after the August 11, 2023 deadline, or otherwise attempt to cure the deficiencies identified in the magistrate judge's opinion. Accordingly, on August 18, 2023, the district judge entered a judgment dismissing Song's action with prejudice. See Judgment at 1, Song v. U.S. Gov't, No. 3:23-cv-00573-JR (D. Or. Aug. 18, 2023), ECF No. 27.
The next year, in Song X, this Court recommended that the district judge dismiss Song's case with prejudice because (1) Song's complaint, coupled with the complaints and exhibits that Song had previously filed in this district, demonstrated that Song's case was frivolous and duplicative, and (2) Song's case was barred by res judicata. 2024 WL 2251865, at *7. With respect to the first basis for dismissal, the Court explained that Song's allegations were not simply unlikely; rather, Song's factual allegations were baseless, as they rose to level of fanciful, fantastic, and delusional. Id. After noting that Song's allegations were largely duplicative of those that she made in past cases, the Court observed that Song's allegations concerned, among other things, (1) her participation in a “secret” psychological “research program,” which the CIA and/or military controlled, used “software” to engage in the “criminal abuse of [Song's] body” and “identity theft,” and “conduct[ed] experiments . . . result[ing] in changed personalities and torture,” and (2) Coleman “screenwriting for guest . . . voice-over actors” who are “impersonating [Song].” Id. The Court explained that considering the multiple actions in which Song unsuccessfully pursued and/or abandoned claims predicated on similar allegations, it was evident that Song's claims in Song X stemmed from fanciful, fantastic, and delusional beliefs about military technology, research programs, software, experiments, and conspiracies involving government and private actors (and the Pope). Id. Thus, the Court recommended that the district judge dismiss Song's complaint with prejudice because it was frivolous and duplicative. Id.(citations omitted).
With respect to the second basis for dismissal (res judicata), the Court explained that in light of Song IV, Song's action was barred by res judicata. Id. at *8. In support on this conclusion, the Court noted that because Song raised nearly identical claims against the same defendants or their privies in a prior federal action that resulted in a final judgment on the merits (i.e., Song IV), the three elements of federal claim preclusion were satisfied. Id. Thus, the Court also recommended that the district judge dismiss Song's case with prejudice because it was barred by res judicata.
On May 17, 2024, the district judge adopted the Court's findings and recommendation and sua sponte dismissed Song's complaint, with prejudice, because it was “frivolous” under 28 U.S.C. § 1915(e)(2), duplicative, and barred by the doctrine of res judicata. 2024 WL 2251628, at *1-2. The district judge noted that Song failed to identify any alleged errors in the Court's findings and recommendation or offer any basis or argument for her objection. Id. at *1. As a result, the district judge considered the Court's findings and recommendation not to have any objection and reviewed for clear error, none of which were apparent. Id. The district judge added that even if he “consider[ed] [Song] to have raised substantive objections and review[ed] the issues de novo, [he] would agree with and adopt the Findings and Recommendation.” Id. at *1 n.1.
II. DISPOSITION
Consistent with its decision in Song X, the Court recommends that the district judge dismiss this case with prejudice because Song's complaint, coupled with the complaints and exhibits that Song has previously filed in this district, demonstrate that this case is frivolous and duplicative.
The district judge should dismiss Song's complaint as “frivolous” under § 1915(e)(2). SeeWilliams, 830 Fed.Appx. at 981-82 (affirming the district court's decision to dismiss the plaintiff's food poisoning-related claims sua sponte and with prejudice because they were frivolous and duplicative of multiple actions in which the plaintiff unsuccessfully pursued claims predicated on such matters). A court may not dismiss a plaintiff's action “simply because the court finds the plaintiff's allegations unlikely[.]” Valenzuela v. Ryan, 623 Fed.Appx. 496, 496-97 (9th Cir. 2015) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)). A court, however, may dismiss a plaintiff's action as factually frivolous “if the facts alleged are clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional.” Id. (quoting Denton, 504 U.S at 32-33).
It is clear at this early stage of the litigation that Song's allegations are not simply unlikely; rather, Song's factual allegations are baseless, as they rise to level of fanciful, fantastic, and delusional. Song's allegations, which are largely duplicative of those that she made in past cases, concern:
• Henkel's involvement in Song's “personal life [for] many years after [she] separat[ed] from Ascension Health.” (Compl. at 7);
• Henkel's recent “taking [of] phone calls . . . in secret” regarding Song. (Id.);
• Owen Minor's decision to “access[] [Song's] electronic mail . . ., listen[] to [Song's cell] phone conversations[,] . . . and . . . wire-tap[] and pre-text[] [Song] with the use of military software[, which] was provided by a faculty member at Columbia University,” a New York-based school that Song attended after working with Henkel at Ascension Health. (Id.);
• Song's belief that “private investigators have spied on her and gathered extensive background information on her spouse and other members of her extended family.” (Id. at 8);
• Song's beliefs that Henkel has “obtained phone records under false pretenses . . . and tried to install spyware on [Song's] computer, and that Owen Minor is effectively “paying people” to use “virtual space” to “forcibl[y] stay in [Song's] house,” in violation of the Third Amendment's proscription against “quartering troops” in any house during peacetime, without the owner's consent. (Id. at 8-9); and
• Song's beliefs that Henkel has “funded and signed-off” as an “executive” on the foregoing “military activities,” and that the “source of most of the information [underlying Song's allegations] is Interpol and military voices [that] resemble auditory hallucinations[] and . . . are admissible in court.” (Id. at 9.)
Considering the multiple actions in which Song unsuccessfully pursued and/or abandoned claims predicated on similar allegations, it is evident that Song's claims stem from fanciful, fantastic, and delusional beliefs about military technology, research programs, software, experiments, and conspiracies involving government and private actors. Given these facts, the Court recommends that the district judge dismiss Song's complaint with prejudice because it is frivolous and duplicative. SeeSong, 2024 WL 2251628, at *1-2 (same); Hejazi v. Shugar, No. 6:21-cv-01142-MO, 2021 WL 4132311, at *1 (D. Or. Aug. 26, 2021) (“While a court may not dismiss a complaint simply because it finds the allegations to be unlikely, . . . this Court finds [the self-represented plaintiff's] allegations of a vast government conspiracy to be both fanciful and wholly incredible. Accordingly, the Complaint is dismissed, without leave to amend, on the basis that it is frivolous.”), appeal dismissed, No. 21-35762, 2022 WL 4119658, at *1 (9th Cir. July 19, 2022).
Song has referenced a diagnosis of schizophrenia, which she alleges is “untrue.” Second Exhibits to Amended Complaint at 1, Song v. U.S. Gov't, No. 3:23-cv-00573-JR (D. Or. May 27, 2023), ECF No. 14.
CONCLUSION
For the reasons stated, the Court GRANTS Song's IFP application (ECF No. 2) but recommends that the district judge DISMISS this action with prejudice because it is frivolous and duplicative. The Court also recommends that the district judge DENY AS MOOT Song's motion to subpoena records (ECF No. 3).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.