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Pennington v. Kansas University Medical Center Research Institute

United States District Court, D. Kansas

July 31, 2017

BRUCE CLEMENT PENNINGTON, JR., et al., Plaintiffs,
v.
KANSAS UNIVERSITY MEDICAL CENTER RESEARCH INSTITUTE, et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES, MOTION FOR APPOINTMENT OF COUNSEL AND REPORT & RECOMMENDATION FOR DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS

          KENNETH G. GALE United States Magistrate Judge.

         In conjunction with his federal court Complaint (Doc. 1.), pro se Plaintiff Bruce Clement Pennington, Jr. has filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 3, sealed) with accompanying financial affidavit (Doc. 3-1, sealed) as well as a Motion to Appoint Counsel (Doc. 4, sealed).[1] The Court entered a “Notice of Deficiency” instructing Plaintiff that the Complaint and Motion to Appoint both included personal identifying information and needed to be redacted immediately. (See June 26, 2017, text entry.) Thereafter, Plaintiff filed a revised Motion to Appoint Counsel (Doc. 8). Having reviewed Plaintiff's motions, as well as his Complaint, the Court GRANTS IFP application and DENIES Plaintiff's request for counsel. The Court does, however, RECOMMEND that Plaintiffs' claims against certain Defendants be dismissed as well as certain causes of action be dismissed for failure to state a viable federal cause of action.

         I. Factual Allegations.

         Plaintiff's lengthy, hand-written Complaint generally alleges that he and other Plaintiffs were abducted and subjected to forced (unconsented) surgery during which “various medical tellemetric [sic] and neurologil [sic] prosthetic devices” were implanted in them along with

cochlear electrodes from brain mapping and stimulation, electrodes for prolonged monitoring of laryngeal electromyographic signals from the trachea, vocal cords and tongue, conductive wires and ink, electrode plates, implanted activa pulse generator's activa system [sic], deep brain stimulator ventral tagmental [sic] area targeted electrode, and a form of remote accessible micro patient programmer.

(See generally Doc. 1 and at pg. 17-18.) The causes of action alleged by Plaintiff include aggravated kidnapping, aggravated robbery, torture, violations of the Electronic Communications Privacy Act, theft of intellectual property, a violation of the right to equality, and a violation of religious rights. (Id., at 25-28.)

         Plaintiff brings his claims against the Kansas University Medical Research Initiative and at least 22 doctors and other individuals associated with KUMRI. Additional Defendants include at least three other doctors as well as “Medtronic Public Limited Company, ” Wesley Hospital, and Via Christi Medical Center.

         The crux of Plaintiff's allegations is that he was kidnapped by men in surgical scrubs and firefighter uniforms and forced to submit to unwanted surgery during which electronic surveillance devices were implanted in him for a nefarious purpose, theoretically motivated by revenge for money he was accused of owing one of the non-KUMRI affiliated doctors. Somehow, according to Plaintiff, his angering this doctor is related to “studies” being conducted by Defendant KUMRI in conjunction with Defendant Medtronic. These alleged “series of research studies” include

the Medtronic Bio Initiative, the Obama Brain Initiative, Christian Lechner's Rewiring the Adictive [sic] Brain Using Deep Brain Stimulation, Remote Bio Tellemitry [sic] and Brain Mapping and several similar studies involving manipulation and altering of the human mind using frequency based and milla amp [sic] stimulation of the human brain.

(Id., at 15.) Plaintiff contends these “chronic research studies” are being “practiced and taught by the Defendants on unwilling and many times unaware victims, including the Plaintiffs.” (Id., at 15-16.)

         II. Motion to Proceed In Forma Pauperis

         Under 28 U.S.C. § 1915(a), a federal court may authorize commencement of an action without prepayment of fees, costs, etc., by a person who lacks financial means. 28 U.S.C. § 1915(a). In so doing, the court considers the affidavit of financial status included with the application. See id.

         There is a liberal policy toward permitting proceedings in forma pauperis when necessary to ensure that the courts are available to all citizens, not just those who can afford to pay. See generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987). In construing the application and affidavit, courts generally seek to compare an applicant's monthly expenses to monthly income. See Patillo v. N. Am. Van Lines, Inc., No. 02-2162, 2002 WL 1162684, at *1 (D.Kan. Apr. 15, 2002); Webb v. Cessna Aircraft, No. 00-2229, 2000 WL 1025575, at *1 (D.Kan. July 17, 2000) (denying motion because “Plaintiff is employed, with monthly income exceeding her monthly expenses by approximately $600.00”).

         In his supporting financial affidavit, Plaintiff, who is incarcerated, indicates he is 40 years old and married with one dependant child for whom he cannot provide monthly financial assistance while he is incarcerated. (Doc. 3-1, sealed, at 1-2.) He does, however, owe a significant amount of past child support. (Id., at 5.) He is currently unemployed during his incarceration. (Id., at 2.) He does not own an automobile or real property. (Id., at 3-4.)

         Plaintiff lists no cash on hand. (Id., at 4.) The only income he indicates is a small amount of welfare payments. (Id.) He has not filed for bankruptcy. (Id. at 6.)

         Considering all of the information contained in his financial affidavit, the Court finds that Plaintiff has established that his access to the Court would be significantly limited absent the ability to file this action without payment of fees and costs. The ...


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