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MH 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Victor Pianka, 

Plaintiff, 

v. 

United States of America, et al., 

Defendants. 

No. CV 15-1687-PHX-DGC (MHB) 

ORDER 

Plaintiff Victor Pianka, who is confined in the Eloy Detention Center, has filed a 

pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and two Applications 

to Proceed In Forma Pauperis (Docs. 2, 6). Plaintiff has also filed a Motion for 

Injunctive Hearing (Doc. 3) and a Motion for Evidentiary Hearing (Doc. 4). The Court 

will dismiss the Complaint as frivolous and duplicative. Plaintiff’s Motion for Injunctive 

Hearing and Motion for Evidentiary Hearing will be denied as moot. 

I. Applications to Proceed In Forma Pauperis and Filing Fee

 Plaintiff’s August 25, 2015 Application to Proceed In Forma Pauperis will be 

granted. 28 U.S.C. § 1915(a). Plaintiff is and was, at the time this action was 

commenced, an immigration detainee. There do not appear to be any criminal charges 

pending against him at this time. Accordingly, Plaintiff is not subject to the filing fee 

provisions of the Prison Litigation Reform Act, and he will be allowed to proceed 

without payment of the filing fee. Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005); 

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Agyeman v. INS, 296 F.3d 871, 885-86 (9th Cir. 2002). Plaintiff’s September 10, 2015 

Application to Proceed In Forma Pauperis will be denied as moot. 

II. Statutory Screening

 Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted 

in forma pauperis status, the Court 

shall dismiss the case at any time if the court determines that 

. . . 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)(B). 

 A pleading must contain a “short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 

does not demand detailed factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. 

 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 

claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 

on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 

specific factual allegations may be consistent with a constitutional claim, a court must 

assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

at 681. 

 But as the United States Court of Appeals for the Ninth Circuit has instructed, 

courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 

stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 

Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 

III. Complaint 

 In his two-count First Amended Complaint, Plaintiff asserts violations of his 

Fourth, Fifth, Eighth, and Fourteenth Amendment rights. He also asserts a violation of 

42 U.S.C. § 1981. Plaintiff names the following Defendants: the United States of 

America; President Barack Obama; Attorney General Eric Holder; Secretary of the 

Department of Homeland Security (“DHS”) Jeh Johnson; Federal Bureau of 

Investigations (“FBI”) Director James Comey; Eloy Detention Center Employees Joseph 

Duran, Sepulveda,1

 Phillip Farabough, Smith, Rosemarie Kelly, ten unidentified Nurses 

(“Does #1-10”), Durham, Sebastian, John Cantu, Jon Gruelle, Brett Day, and Patricia 

Vroom; FBI Agents Douglas Price, Andrew Black, Mark Cwynar, John Lannarelli, Sean 

Kaul, George Steuer, and Johnson; DHS Employees Charleston, Smith, Shane Kitchen, 

and Lopez; the “Office Inspector General”; “DHS Civil Rights Civil Liberties”; and an 

individual identified as “X-Ray Tech at AZ-Tech Radiology” (“Doe #11”). In his 

Request for Relief, Plaintiff seeks $200 million in compensatory damages. 

 In Count One of the Complaint, Plaintiff alleges that his Fifth, Eighth, and 

Fourteenth Amendment rights were violated, along with 42 U.S.C. § 1981, by “x-ray 

fraud.” Plaintiff alleges that he has “over fifty pet locator chips” under his skin that are 

“constantly signaled to vibrate, shock, . . . cause pain[,] and make [Plaintiff] lose sleep.” 

According to the Complaint, these chips were injected under his skin by “people [who] 

organized the murder of his father for life insurance money and literally planned his 

deportation.” Plaintiff appears to allege that Defendant Duran received a cash bribe for 

changing out an x-ray of Plaintiff that would have revealed the existence of these chips. 

Defendant Sepulveda should be held liable, Plaintiff claims, because “she is the one that 

ordered the x-ray and ignored the fact that she felt the bumps” that indicated the location 

 

1

 This Defendant is also referred to in the Complaint as “Sepulvida.” 

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of the pet locator chips. Defendants Farabough and Smith ignored Plaintiff’s grievances 

regarding the chips, and Defendants Kelly, Does #1-10, Durham, and Sebastian ignored 

Plaintiff’s allegations regarding the fraud that was being committed against him. In 

addition, Defendant Kelly misdiagnosed Plaintiff as delusional. Plaintiff alleges that he 

has written to Defendants Price, Black, Cwynar, Lannarelli, Kaul, and Comey “every 

single week this year” about the fraud being committed against him, but he has not 

received any response from these Defendants. Defendant Steuer sent Defendant Johnson 

to speak with Plaintiff, but Johnson failed to follow through with his investigation. 

Plaintiff alleges that he filed three DHS Civil Rights and Civil Liberties complaints but 

all were ignored. Defendants Charleston, Kitchen, Smith, Lopez, Cantu, Gruelle, and 

Office Inspector General all ignored Plaintiff’s claim as well. In addition, Doe #11 

“committed fraud again” by “plann[ing] for [Plaintiff] not to be able to prove” that he has 

pet locator chips under his skin. 

 In Count Two, Plaintiff asserts violations of the Fourth Amendment, the Fifth 

Amendment, and 42 U.S.C. § 1981 based on “document fraud.” According to Plaintiff, 

the individuals who planned his father’s murder also conspired to have him deported 

beginning in the summer of 2001, after he was released from immigration detention. 

Plaintiff alleges that he was kidnapped one week after his release from detention and 

forced to falsify several documents “to make it seem that [his] father was not [his] father 

so [Plaintiff] could not derive citizenship from him.” The same individuals moved the 

photograph on his mother’s naturalization certificate to cover her signature. Defendant 

Vroom “made it seem like [Plaintiff] filed a N-600 for it to be denied by a District 

Director at that time.” According to Plaintiff, DHS has “knowingly adopt[ed] inadequate 

procedures regarding fraud complaints and . . . fraud committed against a detainee[] by 

DHS employees,” resulting in violations of his due process rights. Plaintiff has written to 

Defendants Price, Black, Cwynar, Lannarelli, Kaul, and Comey “every single week this 

year” concerning the fraud that has been committed against him and “several murders” he 

has witnessed, but he has not received a response. As noted above, Defendant Steuer sent 

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Defendant Johnson to speak with Plaintiff, but Steuer has not followed up on his 

investigation. Plaintiff’s DHS Civil Rights and Civil Liberties complaint was ignored by 

Defendant Charleston. Defendants Cantu, Gruelle, Holder, Obama, and Office Inspector 

General have all failed to respond to Plaintiff’s complaints of document fraud. As a 

result, Plaintiff has endured “3 unlawful detentions a year for over 12 year[s].” During 

Plaintiff’s detention, he has allegedly suffered multiple physical and psychological 

injuries, including, but not limited to, rape, sodium pentothal injections, force-feedings, 

and death threats. 

IV. Dismissal of Complaint

 Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), the Court must dismiss a case 

proceeding in forma pauperis if the court determines that the action or complaint is 

“frivolous or malicious.” When evaluating claims under this standard, the Court “is not 

bound, as it usually is when making a determination based solely on the pleadings, to 

accept without question the truth of the plaintiff=s allegations.” Denton v. Hernandez, 

504 U.S. 25, 32 (1992). 

 “[A] court may dismiss a claim as factually frivolous only if the facts alleged are 

‘clearly baseless,’ a category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and 

‘delusional.’” Id. at 32-33 (citations omitted). “[A] finding of factual frivolousness is 

appropriate when the facts alleged rise to the level of the irrational or the wholly 

incredible.” Id. at 33. Plaintiff alleges in Count One that Defendants have refused to 

acknowledge that the individuals responsible for the murder of his father have injected 

him with pet locator chips that they use to shock him, cause him pain, and keep him 

awake. In Count Two, he asserts that Defendants have prevented him from establishing 

that the same individuals who conspired to kill his father kidnapped Plaintiff and forced 

him to falsify immigration documents in an effort to get him deported. The Court finds 

these claims to be factually frivolous, and Counts One and Two will be dismissed on that 

basis. In the alternative, the Court draws on its judicial experience and common sense to 

determine that Plaintiff’s allegations are implausible on their face, see Iqbal, 556 U.S. at 

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678, and therefore fail to state a claim for relief. See 28 U.S.C. § 1915(e)(2)(B)(ii). 

 Plaintiff’s Complaint is also frivolous to the extent it raises claims that have 

already been adjudicated in this Court. An in forma pauperis complaint that merely 

repeats pending or previously litigated claims may be dismissed as frivolous or 

malicious. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing 

former 28 U.S.C. § 1915(d)) (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 

1988)). A complaint repeating the same factual allegations asserted in an earlier case, 

even if now filed against a new defendant, is subject to dismissal pursuant to 28 U.S.C. 

§ 1915 as duplicative and frivolous. See Bailey, 846 F.2d at 1021. 

 In Pianka v. DeRosa, CV 14-2644-PHX-DGC (MHB), Plaintiff filed a civil action 

asserting multiple violations of his constitutional rights. One of the counts in Plaintiff’s 

second amended complaint alleged that Plaintiff had more than fifty pet locator chips 

under his skin and that multiple Defendants—including Duran, Sepulveda, Farabough, 

Smith, Kelly, Sebastian, and Durham—refused to acknowledge the existence of these 

chips. (Doc. 10 in CV 14-2644-PHX-DGC (MHB) at 13). Another count alleged that 

Defendants Charleston, Kitchen, Vroom, and Johnson, among others, violated Plaintiff’s 

due process rights by failing to address his claims that his immigration file had been 

tampered with and documents falsified in order to “make it seem like [his] father was not 

[his] father.” (Doc. 10 in CV 14-2644-PHX-DGC (MHB) at 6). These counts were 

dismissed for failure to state a claim in a May 18, 2015 Order (Doc. 14 in CV 14-2644-

PHX-DGC (MHB)). An order dismissing that action was entered the same date. (Doc. 

15 in CV 14-2644-PHX-DGC (MHB)). Plaintiff’s appeal from those Orders is currently 

pending in the Ninth Circuit. See Pianka v. DeRosa, No. 15-16241 (9th Cir.). 

 Accordingly, the Court will dismiss Plaintiff’s Complaint, and this action, as 

frivolous and duplicative of Pianka v. DeRosa, CV 14-2644-PHX-DGC (MHB). In light 

of the Court’s dismissal of the Complaint, Plaintiff’s Motion for Injunctive Hearing and 

Motion for Evidentiary Hearing will be denied as moot. 

. . . . 

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IT IS ORDERED: 

(1) Plaintiff’s August 25, 2015 Application to Proceed In Forma Pauperis 

(Doc. 2) is granted. 

(2) Plaintiff’s September 10, 2015 Application to Proceed In Forma Pauperis 

(Doc. 6) is denied as moot. 

(3) The Complaint (Doc. 1) is dismissed as frivolous and duplicative, pursuant 

to 28 U.S.C. § 1915(e)(2)(B)(i), and the Clerk of Court must enter judgment accordingly. 

(4) Plaintiff’s Motion for Injunctive Hearing (Doc. 3) and Motion for 

Evidentiary Hearing (Doc. 4) are denied as moot. 

Dated this 18th day of September, 2015. 

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