2008 U.S. App. Lexis 7562

March 5, 2008, Filed

NOTICE: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

ORDER

Marvin Lee Prince ("Prince"), a pro se Michigan prisoner, appeals a district court judgment dismissing his complaint as frivolous and failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) in this civil rights action filed under 42 U.S.C. § 1983. This appeal was assigned Case No. 07-2031. Prince subsequently filed a duplicate appeal from the same district court judgment, which is Case No. 07-2050. Prince has also filed two motions for the appointment of counsel, a motion to amend his complaint, and a motion to compel the production of documents.

Prince filed this complaint against several Michigan prisoner administrators, officials, and medical personnel, along with the Riverside Correctional Facility in Sutherland, claiming that these defendants have subjected him to cruel and unusual punishment in violation of his Eighth Amendment rights. Among other things, Prince accuses the officials and medical personnel of: 1) exposing him to some type of electrical currents emitted by "security devices" that prison officials have implanted in the prison bunks, ceilings, and other areas; 2) lacing his coffee and food with chemicals, without his knowledge, that have caused him mental and physical damage; and 3) pumping a chemical agent into the ventilation system, causing the prisoners to become numb so that the officials may subject them to sexual and other physical abuse and experimentation. Prince requested monetary damages and injunctive relief.

The district court referred the complaint to a magistrate judge, who issued a report and recommendation to dismiss the complaint as frivolous under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and under 42 U.S.C. § 1997e. Prince filed objections to the report and recommendation, repeating the allegations set forth in his initial complaint and arguing that he is being negligently treated. The district court considered Prince's objections, and adopted the report, dismissing the complaint as frivolous and ordering that the dismissal be counted as a "strike" for purposes of filing frivolous suits pursuant to 28 U.S.C. § 1915(g). The district court certified that an appeal would not be in good faith, pursuant to 28 U.S.C. § 1915(a)(3), but later granted Prince's motion to proceed in forma pauperis (IFP), on appeal.

On appeal, Prince repeats his allegations of abuse by "death ray" devices and by exposure to chemical agents within the prison that he believes caused damage to his brain, heart and body tissue. He also states that he has been denied access to a full medical examination to assess the damage created by these conditions.

We affirm the district court's judgment for the reasons stated by the district court. We review de novo a district court judgment dismissing a complaint as frivolous. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Section 1915A directs the district court to review prisoner civil rights complaints "before docketing, if feasible or, in any event, as soon as practicable after docketing" and to dismiss the complaint if it is frivolous or fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915A(b). Similarly, § 1915(e)(2)(B) directs the district court to dismiss a case filed IFP any time the court determines that the complaint is frivolous, fails to state a claim on which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. The complaint should be construed in a light most favorable to the plaintiff, accepting all the factual allegations as true. Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006) . "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1969, 167 L. Ed. 2d 929 (2007). Although a pro se litigant is entitled to a liberal construction of his pleadings and filings, this Court's standard of review requires more than the bare assertion of legal conclusions and must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. See Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1911, 164 L. Ed. 2d 663 (2006); Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999).

The district court properly concluded that Prince's allegations were delusional to the point that his claims lacked any arguable basis in law or fact. In her report and recommendation, the magistrate judge quoted, verbatim, an accurate representation of the substance of Prince's entire complaint. On appeal, Prince expounds upon those allegations, in greater detail, focusing on the "death ray" devices and chemicals being administered through the prison food and through the ventilation system that he believes the defendants are using to intentionally harm and "slowly kill" him. In fact, Prince claims that the defendants did kill him, but that he revived in the morgue. Prince explains the harmful result, as follows:

Patient spent 10 years within the MDOC and experienced every security device used here. These devices either function on high frequencies of ions, electron, neurtrons [sic] and protons, etc. are a form of anyone of these devices being used at MDOC. Plaintiff stated that its some type of odorless chemical agent being used that causes dehydration and not documented through request for various test performed. These [sic] is why employees are authorized to sabotage my criminal and civil appeal, constant sexual abuse out of retaliation to give up civil claim and conceal information and injury under false documentation.

Prince asserts that the district court should have accepted all of his allegations as true, because they are not "clearly irrationally or wholly incredible," particularly in light of his learning disability and his "label of mental illness." However, his personal disabilities do not change the fact that his alleged injuries are being caused by forces that he cannot rationally establish exist.

Prince admits that an amendment to his complaint would not "substantially alter" the complaint, but would "further explain the names and function of these security devices being used that caused this tortous [sic] injury sustained by plaintiff." However, we may not consider information and allegations that were not first considered by the district court. See Fed. R. App. P. 10(a); McClung v. Wal-Mart Stores, Inc., 270 F.3d 1007, 1011 (6th Cir. 2001).

Accordingly, the district court's judgment is affirmed, Prince's pending motions are denied as moot, and his appeal designated as Case No. 07-2050 is dismissed as a duplicate appeal. Rule 34(j)(2)(C), Rules of the Sixth Circuit.