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Duncan v. Doe

United States District Court, D. Montana, Billings Division

April 9, 2019

ALVIN J. DUNCAN, Petitioner,
v.
JOHN DOE, FCC, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan United States Magistrate Judge.

         Plaintiff Alvin J. Duncan, appearing pro se, filed a Motion for Leave to Proceed in Forma Pauperis (Doc. 1) and a proposed Complaint. The Complaint alleges that between June 20, 2015, to the present day, unidentified individuals are attempting to murder him, assault him with a nuclear weapon, and are engaging in psychological, nuclear, and civil warfare against him. He alleges that these acts violate his constitutional rights and constitute cruel or barbaric detention. (Doc. 2 at 6, ¶III (A)(1)-(2)). Mr. Duncan is not currently in custody.

         Mr. Duncan has also filed a Motion for Warrant (Doc. 4), Motion to Compel (Doc. 6), and Motion for Order (Doc. 7.) The motion to proceed in forma pauperis will be granted, but the Complaint should be dismissed as frivolous. The remaining rnotions will be denied.

         I. Motion To Proceed In Forma Pauperis

         Mr. Duncan filed an application requesting leave to proceed in forma pauperis. He submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute this action, the Court will grant Mr. Duncan's application. This action may proceed without prepayment of the filing fee, and the Clerk of Court is directed to file Duncan's lodged Complaint as of the filing date of his request to proceed in forma pauperis.

         The federal statue under which leave to proceed in forma pauperis is permitted, 28 U.S.C. §1915, also requires the Court to conduct a preliminary screening of all the allegations set forth in the litigant's pleading. The applicable provisions of section 1915(e)(2) state as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(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).

         The Court will review Mr. Duncan's pleading to consider whether this action can survive dismissal under the provisions of section 1915(e)(2). See, Huftile v. ...


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