Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 1 of 23 PAGEID #: 325
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
`
`
`DAVID ANDREW BARDES,
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case No. 1:22-cv-290
`
`Cole, J.
`Bowman, M.J.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`GEORGE WALKER BUSH, et al.,
`
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`REPORT AND RECOMMENDATION
`
`On May 26, 2022, Plaintiff David Andrew Bardes paid the requisite filing fee and
`
`filed suit against multiple individual and corporate defendants. (Doc. 1). Two of three
`
`pending motions to dismiss have been referred to the undersigned for initial review.
`
`(Notation Order of 8/23/2022). For the reasons that follow, the undersigned now
`
`recommends that the referred motions to dismiss filed by Defendants Alphabet, Inc.,
`
`Lawrence Edward Page, Apple, Inc. (see Docs. 11, 12), be GRANTED. In addition, the
`
`undersigned recommends that a third motion to dismiss filed by Defendant Microsoft
`
`Corporation be granted and that all remaining motions filed by Plaintiff be denied. As
`
`explained below, Plaintiff’s complaint is subject to sua sponte dismissal with prejudice
`
`under the Court’s own authority.
`
`I.
`
`Background
`
`Plaintiff’s complaint identifies eight individual and corporate defendants: former
`
`President George Walker Bush, Richard Bruce Cheney, William Henry Gates, III,
`
`Microsoft Corporation, Lawrence Edward Page, Alphabet, Inc., Timothy Donald Cook,
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 2 of 23 PAGEID #: 326
`
`
`
`and Apple, Inc. In addition, Plaintiff includes two individual defendants identified only as
`
`“John and Jane Doe.” He alleges that after being falsely accused in 2004 of failing to pay
`
`child support, he was the victim of “Cold Cell” torture in an unspecified jail.1 (Doc. 1 at
`
`PageID 2). Plaintiff alleges that while jailed, he suffered “unspeakable pain” until he fell
`
`“into [a] hypothermic coma” and was “mistakenly declared…dead.” (Id.) Following his
`
`release, Plaintiff alleges he began researching “punishment holding cells” and learned of
`
`widespread use of “Cold Cell” torture by former President Bush and others. (Id.) Plaintiff
`
`alleges that he “blew the whistle” by publishing a book and operating a website that
`
`“chronicled all of [his] research on Cold Cell torture” and associated murders. (Id. at
`
`PageID 1, 3, 6).
`
`As best the undersigned can discern, Plaintiff sincerely believes that former
`
`President George W. Bush and other former or current government officials, along with
`
`three large corporations and their current or former CEOs, are trying to silence his
`
`research and writings, including through attempts to kill him. He also appears to believe
`
`that Defendants and others have previously taken retaliatory actions and conspired to
`
`prevent him from obtaining legal redress. Plaintiff generally alleges that Defendants have
`
`colluded or conspired with former President Bush in a manner that has led to the dismissal
`
`of multiple prior lawsuits and appeals, and clandestine efforts by CIA or other government
`
`agents to befriend him, to pay him off, to dig up dirt on him, to prosecute him, and/or to
`
`physically harm and murder him.2 (Doc. 1 at PageID 5-8). Invoking this Court’s diversity
`
`jurisdiction, Plaintiff seeks “$17 billion dollars in compensatory damages, and triple that
`
`
`1In prior judicial proceedings, the jail is identified as being located in Charleston, South Carolina.
`2Notwithstanding these allegations, Plaintiff has not named any CIA or other government agents as
`defendants other than the former U.S. President and his former Vice President.
`2
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 3 of 23 PAGEID #: 327
`
`
`
`amount in extraordinary damages” from all defendants for “the reckless infliction of
`
`emotional distress, among other things.” (Id. at ¶¶49, 51, PageID 10).
`
`On July 14, 2022, Defendant Alphabet, Inc. and Lawrence Edward Page (jointly
`
`referenced as “Alphabet”) filed a motion to dismiss. (Doc. 11). Alphabet’s motion seeks
`
`dismissal under Rule 12(b)(6) based upon Plaintiff’s failure to state any claim. In addition
`
`and in the alternative, Alphabet argues that this Court lacks personal jurisdiction over the
`
`Alphabet defendants, and that venue does not lie in the Southern District of Ohio.
`
`On July 15, 2022, Apple, Inc. (“Apple”) also filed a motion to dismiss. (Doc. 12).
`
`Apple’s motion points out that Plaintiff filed a prior lawsuit in this Court on September 20,
`
`2021 that contained substantially identical allegations. See generally, Bardes v. United
`
`States, Case No. 1:21-cv-598-DRC-KLL. Apple’s motion therefore seeks dismissal with
`
`prejudice under Rule 12(b)(6) based upon the doctrine of claim preclusion, as well as for
`
`failure to state a claim. Additionally, Apple seeks dismissal for lack of personal
`
`jurisdiction, for improper venue, and for insufficient service of process.
`
`Microsoft Corporation (“Microsoft”) filed the third pending motion to dismiss on
`
`August 26, 2022.3 (Doc. 25). Microsoft’s motion discusses Plaintiff’s “long history of filing
`
`frivolous lawsuits based on the same or similar allegations” as those contained in this
`
`case. (Id. at PageID 304). In addition to seeking dismissal for failure to state a claim
`
`under Rule 12(b)(6), Microsoft seeks dismissal for insufficient service of process.
`
`
`
`Before addressing the pending motions, the undersigned takes judicial notice of
`
`six prior cases prosecuted by Plaintiff that contain similar or closely related allegations.
`
`
`3The first two motions to dismiss were formally referred to the undersigned prior to the date that Microsoft
`filed its motion. Because Microsoft’s motion so closely aligns with the other two motions to dismiss, the
`undersigned has included a recommendation that Microsoft’s motion also be granted.
`3
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 4 of 23 PAGEID #: 328
`
`
`
`In 2008, Plaintiff filed his first federal lawsuit in South Carolina based upon allegations
`
`concerning his alleged cold cell torture in a South Carolina jail. That case was partially
`
`dismissed at the outset, with other claims against a sheriff dismissed on summary
`
`judgment. See, e.g., Bardes v. Magera, 2:08-CV-487-PMD-RSC, 2009 WL 3163547
`
`(D.S.C. Sept. 30, 2009) (dismissal of all claims against all defendants except sheriff);
`
`Bardes v. Cannon, Jr., 2:08-CV-487-PMD-RSC, 2010 WL 3169614 (D.S.C. Aug. 9, 2010)
`
`(adopting R&R and granting summary judgment on claims that sheriff was vicariously
`
`liable for subjecting to cold cell torture); see also id. at 2010 WL 3169832 (D.S.C. June
`
`18, 2010) (R&R). Plaintiff filed a second federal lawsuit in South Carolina in 2010, which
`
`case was dismissed based upon principles of res judicata. See Bardes v. South
`
`Carolina, C.A. No. 2:10-559-PMD-RSC, 2010 WL 1498190 (D.S.C. March 13, 2010)
`
`(R&R recommending sua sponte dismissal despite payment of full filing fee based on lack
`
`of subject matter jurisdiction and prior civil case); id., 2010 WL 1498190 (D.S.C. Apr. 12,
`
`2010) (adopting R&R and dismissing based upon principles of res judicata).
`
`Plaintiff filed a third similar lawsuit in the Middle District of North Carolina.4 Noting
`
`the similarity of allegations to his South Carolina cases, that federal court also dismissed
`
`based upon the doctrines of res judicata and collateral estoppel. See e.g., Bardes v.
`
`South Carolina, No. 1:11-cv-999-CCE-LPA, 2013 WL 3864405 at *6 (M.D.N.C. July 24,
`
`2013) (observing that Plaintiff’s complaint “reflects the delusional, wholly incredible
`
`allegations of someone suffering from mental illness,” but also recommending dismissal
`
`
`4Plaintiff has engaged in additional unrelated litigation, including a pro se case filed against a former
`employer in the Middle District of North Carolina, in which judgment was entered in favor of the defendant.
`See Bardes v. Mass. Mutual, Case No. 11-cv-00340-CCE-JLw (MD.N.C. April 28, 2014), aff’d Case No.
`14-1560 (4th Cir . Nov. 6, 2014).
`
`
`
`4
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 5 of 23 PAGEID #: 329
`
`
`
`based upon res judicata and/or collateral estoppel), adopted on August 21, 2013, aff’d
`
`Case No. 13-2133 (4th Cir. Feb. 7, 2014).
`
`In 2015 and again in 2017, Plaintiff filed two more similar lawsuits in the Western
`
`District of North Carolina. In Bardes v. Auld, Civil No. 1:15-CV-00214-MR-DLH, 2015 WL
`
`5796466 (W.D.N.C., Oct. 2, 2015), aff’d Case No. 15-2396 (4th Cir. Jan. 19, 2016), the
`
`court again dismissed Plaintiff’s suit as legally frivolous. The court held that Plaintiff’s
`
`claims, seeking monetary damages for injuries allegedly sustained as a result of “brutal
`
`hypothermic torture” that occurred while he was being held in the Charleston County
`
`Detention Center, were barred by the doctrines of res judicata and collateral estoppel.
`
`See id. (“The patency of these barriers to this action renders it legally frivolous.”).
`
`After Plaintiff filed a second suit in the Western District of North Carolina (his fifth
`
`similar suit in all), the court again listed his prior cases and pointed out that the last three
`
`had been dismissed based upon res judicata and/or collateral estoppel. The court then
`
`succinctly concluded: “For the same reasons and based on the same authority cited in
`
`those decisions, the doctrines of res judicata and collateral estoppel also bar the Plaintiff
`
`from re-litigating those issues in this case.” Bardes v. US Courts, Civil Case No. 1:17-cv-
`
`00089-MR-DLH, 2017 WL 3402080, at *1 (W.D.N.C. Aug. 8, 2017) (dismissing case
`
`based on allegations of “hypothermic torture” that allegedly occurred while plaintiff was
`
`being held as a detainee in Charleston, South Carolina). Because it was the second such
`
`case in that district, that court expressly warned Plaintiff “that future frivolous filings will
`
`result in the imposition of a pre-filing review system.” Id., 2017 WL 3402080 at *3.
`
`Heeding that warning, Plaintiff did not again file suit in the Western District of North
`
`Carolina.
`
`
`
`5
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 6 of 23 PAGEID #: 330
`
`
`
`Plaintiff instead filed a sixth suit containing similar allegations in this Court.5 See
`
`Bardes v. United States, Case No. 1:21-cv-598-DRC-KLL. The Court dismissed the
`
`complaint based upon Plaintiff’s failure to state a claim for mandamus relief as a matter
`
`of law, rendering his complaint legally frivolous under the screening standards set forth in
`
`28 U.S.C. § 1915(e)(2)(B). Id.6 U.S. District Judge Cole summarized Plaintiff’s prior
`
`allegations as follows:
`
`Bardes alleges that in 2006, he “was falsely accused of not paying [his] child
`support” and placed in jail. (Doc. 3, #68). While there, Bardes states he was
`detained in a “cold punishment holding cell,” where he was subjected to
`“very cold” temperatures until he “lost consciousness from hypothermia.”
`(Id.). When he was released, Bardes attempted to file multiple civil rights
`lawsuits in federal court, alleging that the inhumane conditions to which he
`was exposed were a form of torture. (Id. at #68-70). However, Bardes states
`that his efforts were often thwarted because the George W. Bush
`administration was “repeatedly torturing to death innocent victims in [the]
`war on terror.” (Id. at #68). Consequently, “every federal judge instantly
`dismissed torture lawsuits to protect George W. Bush, Dick Cheney, and
`the few CIA torture agents from being sued[.]” (Id.).
`
`Bardes states that, in recent years, the courts have corrected course and
`“inmates no longer die[ ] from hypothermia.” (Id. at #70). However, Bardes
`also maintains that those responsible for this alleged scandal have never
`been held criminally accountable. (Id. at #70-71). Accordingly, Bardes now
`seeks a writ of mandamus to compel the executive branch to prosecute
`former President Bush and other alleged “bad actors for murder and
`torture.” (Id. at #71).
`
`
`
`
`Bardes v. United States, Case No. 1:21-cv-598-DRC-KLL, 2021 WL 6063286, at *1 (S.D.
`
`Ohio, Dec. 21, 2021) (adopting R&R, dismissing lawsuit and denying leave to proceed in
`
`forma pauperis on appeal); see also generally, Bardes v. United States, 2021 WL
`
`
`5According to the complaint, Plaintiff currently resides in Walton, Kentucky, a physical location that is
`relatively close to this Court.
`6Plaintiff appealed the dismissal but the Sixth Circuit affirmed. See Sixth Circuit Case No. 22-3063 (6th Cir.
`Aug. 3, 2022). In a responsive memorandum filed in this Court, Plaintiff complains that 23 federal judges
`he has encountered (including those in the Sixth Circuit) “are vehemently and adamantly protecting George
`Walker Bush and his band of murderers from our nation’s well-established laws against repeated brutal
`torture and heinous murder.” (Doc. 22 at 7-8, PageID 292-293).
`6
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 7 of 23 PAGEID #: 331
`
`
`
`4621568 at *3 (S.D. Ohio, Oct. 7, 2021) (R&R, discussing allegations that “[t]hree
`
`Presidents and a dozen CEO’s have now been compromised protecting George W. Bush
`
`from our laws.”); accord Bardes v. United States, 2022 WL 219333, at *1 (S.D. Ohio Jan.
`
`25, 2022) (R&R recommending denial of motion for leave to proceed in forma pauperis
`
`on appeal), adopted at 2022 WL 714232 (S.D. Ohio March 10, 2022).
`
`The instant complaint represents Plaintiff’s seventh iteration of nearly identical
`
`allegations, including the five prior cases filed in North Carolina and South Carolina and
`
`the sixth similar case filed in this Court. In his most recent response to Microsoft’s motion
`
`to dismiss, Plaintiff maintains that he is no longer seeking damages based upon the
`
`conspiracy to prevent him from obtaining legal redress for his past torture, and only
`
`repeated the prior allegations as “background information.” (Doc. 22 at 7, PageID 292).
`
`However, the complaint speaks for itself. Most of the complaint (the first eight pages of
`
`the 10-page complaint), as well as the first 44 of the 47 page single-spaced Exhibit A to
`
`the complaint,7 are comprised of the same “background” allegations previously litigated.
`
`Plaintiff attempts to differentiate his current lawsuit. “My current claims against the
`
`CEO's and public companies stems from their repeated efforts to kill me. Which I describe
`
`in the complaint and Exhibit A multiple times.” (Id., emphasis added.). Plaintiff
`
`characterizes his current complaint as containing allegations that:
`
`My CEO defendants used their "corporate tools to monitor me" to the point
`of "recruiting killers nearby me" to engage in "two concentrated periods" of
`"trying to kill me," causing the "reckless infliction of emotional distress" that
`"took its toll" each ending with "extended hospital stays."
`
`7Exhibit A chronologically summarizes Plaintiff’s alleged recordings of website activity and interpretations
`of that activity between September 2017 and May 2019. In his last responsive memorandum opposing
`dismissal, Plaintiff suggests that the instant lawsuit limits his request for recovery to two time periods.
`However, only the first time period is referenced at all in Exhibit A. Specifically, at the end of Exhibit A,
`Plaintiff alleges that on May 25, 2019, on-line meetings began between Bill Gates, China, Larry Page, the
`German “CIA center”, Facebook Mark Z., and Larry Page “which preceded the killing. I was sacrificed to
`death to protect Satan's most valuable demons.” (Doc. 1-1 at 45, PageID 55).
`7
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 8 of 23 PAGEID #: 332
`
`
`
`
`(Doc. 22 at 8, PageID 293).
`
`Contrary to Plaintiff’s contention, the complaint contains no factual details to
`
`support his conclusory assertion of “repeated efforts to kill me.” Rather, the complaint
`
`alleges only that “website traffic revealed efforts to recruit killers nearby,” in late May 2019,
`
`at which point Plaintiff allegedly “fled Brevard, North Carolina for northern Michigan.”
`
`(Doc. 1 at 8, ¶ 41, PageID 8). He refers to unspecified “horrors” that allegedly occurred
`
`from 5/29/2019 through 10/29/2019 and from 4/1/2021 through 7/2/2021 that were “so
`
`severe that I hesitate to describe at this point,” but includes no other description other
`
`than stating that each period ended with Plaintiff’s “extended hospital stays.” (Id. at
`
`PageID 8-9). The only other factual allegation that may be connected to more recent
`
`events is an allegation that Plaintiff lost ownership of his website “to George W. BUSH”
`
`and/or China, before he was able to re-establish his website under a new domain name.
`
`(Id. at PageID 9).
`
`For the reasons that follow, Plaintiff’s latest lawsuit should be summarily
`
`dismissed.
`
`II.
`
`Analysis
`
`A. Authority to Dismiss Legally Frivolous Cases Sua Sponte
`
`Many pro se litigants seek to file their complaints in forma pauperis, or without
`
`payment of a filing fee. In such cases, Congress has authorized Courts to conduct an
`
`initial evaluation of the complaint prior to authorizing service on any defendant. See 28
`
`U.S.C. § 1915(e). In fact, Plaintiff’s last case in this Court was dismissed based upon
`
`those statutory screening standards. However, Plaintiff paid the full filing fee for this
`
`case, thereby avoiding initial statutory screening under § 1915(e). Nevertheless, this
`
`
`
`8
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 9 of 23 PAGEID #: 333
`
`
`
`Court retains the authority to dismiss frivolous lawsuits sua sponte under Apple v. Glenn,
`
`183 F.3d 477, 479 (6th Cir. 1999). The instant case is legally frivolous on multiple
`
`grounds.
`
`B. Plaintiff is Barred from Re-litigating the Same Allegations and Claims
`
`The most obvious reason for summary dismissal is the fact that this case
`
`represents Plaintiff’s seventh federal lawsuit concerning the same core allegations. Re-
`
`litigation of the same issues is barred by the doctrines of collateral estoppel
`
`and/or res judicata, otherwise known as issue preclusion and claim preclusion.8
`
`In his current complaint, Plaintiff invokes diversity jurisdiction. The Supreme Court
`
`has held that federal courts sitting in diversity should apply “the law that would be applied
`
`by state courts in the State in which the federal diversity court sits” so long as the state
`
`rule is not “incompatible with federal interests,” meaning that this Court should look to
`
`Ohio law on the issues of issue or claim preclusion. Semtek Int'l Inc. v. Lockheed Martin
`
`Corp., 531 U.S. 497, 508-09, 121 S.Ct. 1021 (2001); accord Product Solutions
`
`International, Inc. v. Aldez Containers, LLC, 46 F. 4th ___, 2022 WL 3585013, at *2 (6th
`
`Cir. Aug. 22, 2022).9 It is worth noting, however, that both Ohio law and federal law
`
`preclude re-litigation of any issue previously litigated, even if based on a different cause
`
`of action. See, e.g., In re Trost, 510 B.R. 140, 150-151 (W.D. Mich. 2014); State ex rel.
`
`
`8In Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984), the United States Supreme
`Court expressed its preference for usage of the terms “issue preclusion” and “claim preclusion” to refer to
`the preclusive effect of a prior judgment, rather than the more common terms of “collateral estoppel” and
`“res judicata.” The Sixth Circuit has expressed the same preference, Heyliger v. State University and
`Community College Sys. of Tenn., 126 F.3d 849, 851-52 (6th Cir. 1997), but the Latin phrases remain
`widely used.
`9Notwithstanding Plaintiff’s invocation of diversity jurisdiction, federal law may still apply because Plaintiff’s
`prior six cases all were litigated in federal court including in this district, and his last case was based on
`federal law. See Askew v. Davidson Cty. Sheriff's Office, No. 3:19-cv-00629, 2020 WL 587424, at *3 (M.D.
`Tenn. Feb. 6, 2020) (applying federal law where prior case was in same federal court).
`9
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 10 of 23 PAGEID #: 334
`
`
`
`Nickoli v. Metroparks, 124 Ohio St. 3d 449, 453, 923 N.E. 2d 588 (Ohio 2010).
`
`It is true that Plaintiff’s successive cases contain slight variations in the identities
`
`of the defendants and legal theories. But, while issue preclusion is generally limited to
`
`identical issues, claim preclusion or res judicata bars Plaintiff’s “new and improved”
`
`claims. See generally O'Nesti v. DeBartolo Realty Corp., 113 Ohio St. 3d 59, 862 N.E.2d
`
`803, 806 (Ohio 2007). Thus, claim preclusion bars not only those claims previously
`
`adjudicated between the same parties or their privies, but also bars new claims if they
`
`arise out of the same transaction or occurrence and could have been litigated in the first
`
`action. See, e.g. Hapgood v. City of Warren, 127 F.3d 490, 493 (6th Cir. 1997). Cases
`
`barred by claim preclusion are subject to dismissal for failure to state a claim under Rule
`
`12(b)(6). Helfrick v. Metal Container Corp., 102 Fed. Appx. 451, 452 (6th Cir. 2004).
`
`For the sake of judicial economy, the undersigned focuses the analysis of claim
`
`preclusion in this case on Plaintiff’s last federal case in this Court. See Case No. 1:21-cv-
`
`598-DRC-KLL. As Defendant Apple points out, the primary differences between the two
`
`complaints are: (1) Plaintiff’s prior action sought declaratory relief in the form of a writ of
`
`mandamus; and (2) he previously named only the United States as a defendant. In this
`
`case by contrast, Plaintiff seeks monetary relief and has named two former government
`
`officials (former President Bush and former Vice President Cheney), along with Alphabet,
`
`Microsoft and Apple, and the corporate defendants’ former or current CEOs (Messrs.
`
`Page, Gates, and Cook).
`
`Despite these differences, this case and Case No. 1:21-cv-598-DRC-KLL arise out
`
`of the same set of operative facts. In his last case, Plaintiff included identical allegations10
`
`
`10For example, the 47-page single-spaced “Exhibit A” attached to the complaint in the above-captioned
`case is identical to the “Exhibit A” attached to the complaint in Case No. 1:21-cv-598-DRC-KLL. The
`10
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 11 of 23 PAGEID #: 335
`
`
`
`and specifically requested the issuance of an order “for the Executive Branch to charge
`
`and prosecute” the former President “and his group of bad actors” for “murder and
`
`torture.” Case No. 1:21-cv-598-DRC-KLL (Doc. 3 at 5, PageID 71). Among the “bad
`
`actors,” Plaintiff identified “George W. Bush, Dick Cheney, and a finite group of CIA
`
`officers,” along with “[t]hree Presidents and a dozen CEO’s [who] have been
`
`compromised protecting George W. Bush.” (Id. at ¶¶ 1, 2). In the identical Exhibit A in
`
`both cases, Plaintiff specifically names the same individuals and corporations (now
`
`identified as Defendants) alleging that they were among those who visited and/or
`
`interfered with Plaintiff’s website. (Compare Case No. 1:21-cv-598-DRC-KLL, Doc. 3-1
`
`with Case No. 1:22-cv-290-DRC-SKB, Doc. 1-1).
`
`Just as the addition of new claims does not prevent dismissal on res judicata
`
`grounds, the addition of “new and improved” target Defendants does not preclude
`
`summary dismissal. Claim preclusion remains appropriate if a plaintiff could have named
`
`a party in the prior lawsuit but did not. See Southall v. Holland, 2021 WL 396688 at *6
`
`(M.D. Tenn. Feb. 3, 2021); see also generally, Randles v. Gregart, 965 F.2d 90, 93 (6th
`
`Cir. 1992) (per curiam) (upholding dismissal of successive complaint against new
`
`defendants, collecting cases and citing generally United States v. Mendoza, 464 U.S.
`
`154, 158-59 (1984); Parkland Hosiery Co. v. Shore, 439 U.S. 322, 331(1979)); see
`
`also Heritage Hills Fellowship v. Plouff, 555 F. Supp. 1290, 1295-96 (E.D. Mich. 1983).
`
`In Gregart, the Sixth Circuit also cited with approval Hazzard v. Weinberger, 382 F. Supp.
`
`225, 226-229 (S.D.N.Y. 1974), aff'd, 519 F.2d 1397 (2d Cir. 1975), in which the court held
`
`that nonmutual claim preclusion is appropriate when a pro se litigant brings repeated
`
`
`complaints also contain many identical allegations.
`11
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 12 of 23 PAGEID #: 336
`
`
`
`actions upon the same operative facts with slight changes in legal theories and “cast of
`
`characters-defendants.”
`
`Additionally, Plaintiff’s reformulation of his prior request for mandamus relief
`
`(directing the Executive Branch to criminally prosecute the former president and/or bad
`
`actors) into a new request for monetary damages from the former president and his
`
`alleged co-conspirators does not save this case from being dismissed as frivolous re-
`
`litigation. A plaintiff must “advance all theories for every ground of relief in their first action
`
`or be forever barred from asserting it.” Lavon Moore v. Hiram Twp., 988 F.3d 353, 363
`
`(6th Cir. 2021) (additional citation omitted). In short, dismissal is recommended because
`
`claim preclusion bars Plaintiff from re-packaging his prior allegations into a new civil
`
`lawsuit.
`
`C. The Complaint is Subject to Dismissal as Fantastic or Delusional
`
`This Court does not question the sincerity of Plaintiff’s convictions, to which his
`
`website(s), book, and eight lawsuits in multiple federal courts over the past fourteen years
`
`attest. Nevertheless, the undersigned cannot permit this factually frivolous case to
`
`proceed. Under Apple v. Glenn, Plaintiff’s allegations are simply too implausible to merit
`
`further development as a matter of law. The Court need not accept as true factual
`
`allegations
`
`that are
`
`“fantastic or delusional”
`
`in
`
`reviewing a complaint
`
`for
`
`frivolousness. See, e.g., Neitzke v. Williams, 109 S.Ct. 1827, 1833, 490 U.S. 319, 328
`
`(1989) (holding that courts may reject the truth of “fantastic or delusional scenarios, claims
`
`with which federal district judges are all too familiar.”); Hill v. Lappin, 630 F.3d 468, 471
`
`(6th Cir. 2010). “[A] complaint must contain sufficient factual matter, accepted as true, to
`
`‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,
`
`
`
`12
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 13 of 23 PAGEID #: 337
`
`
`
`129 S.Ct. 1937 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
`
`1955 (2007) (“[A] plaintiff’s obligation to provide the grounds of his entitle[ment] to relief
`
`requires more than labels and conclusions.” (internal quotation marks and citations
`
`omitted)). An action is factually frivolous when the allegations rise to the level of the
`
`irrational or “wholly incredible.” Denton v. Hernandez, 112 S.Ct. 1728, 1733, 504 U.S. 25,
`
`33 (1992).
`
`Without the benefit of expert witnesses to testify to what is technologically
`
`provable, the undersigned accepts that it may be theoretically possible for one or more of
`
`the Defendants to track Plaintiff’s location through his various computer devices and to
`
`attempt to hire clandestine operatives to kill him, but nevertheless finds Plaintiff’s
`
`allegations to be irrational, and “highly unlikely to be true.” See Robinson v. Love, 155
`
`F.R.D. 535, 535 (E.D.Pa.1994). “[I]f the allegations contained in the complaint, while
`
`theoretically within the realm of the possible, stand genuinely outside the common
`
`experience of humankind, such claims may also be dismissed as irrational or wholly
`
`incredible.” Id. at 536; see also Dekoven v. Bell, 140 F.Supp.2d 748, 763 (E.D. Mich.
`
`2001) (dismissing delusional complaint despite the “prodigious amounts of time, energy,
`
`and disciplined effort to assembling [plaintiff’s] proofs,” and his “neatly typed” and
`
`“readable and comprehensible” exposition, due to fundamentally irrational content).
`
`Plaintiff’s allegations regarding an “underground criminal organization” being
`
`orchestrated by former President Bush, (see Doc. 14 at PageID 242), fall within the realm
`
`of the wholly incredible, a/k/a “fantastic or delusional” as a matter of law. Contrary to
`
`Plaintiff’s beliefs, his interpretive website logs and conclusory allegations regarding
`
`communications among various Defendants and government agents trying to kill him fail
`
`
`
`13
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 14 of 23 PAGEID #: 338
`
`
`
`to set forth any rational factual details that would entitle him to a legal remedy.11 And a
`
`complaint may be dismissed when the plaintiff cannot make any claim with a rational or
`
`arguable basis in fact or law. Neitzke, 490 U.S. at 328-29; see also Lawler v. Marshall,
`
`898 F.2d 1196, 1198 (6th Cir. 1990).
`
`“Federal courts routinely dismiss allegations regarding broad-based conspiracies
`
`of computer hacking, surveillance, tracking, and the like, as factually frivolous
`
`under §1915 where these allegations are fanciful, fantastic, delusional, irrational, or
`
`wholly incredible.” Nduka v. Williams, No. 19-cv-4316, 2019 WL 5293649, *2 (E.D. Pa.
`
`Oct. 17, 2019) (collecting cases). For example, courts have found to be legally frivolous
`
`similar allegations that the FCC, FBI, and the NSA had wiretapped the plaintiff's home,
`
`including her cell phone and home phone, hacked her computer and tablet, installed
`
`cameras in her home, tampered with her mail, and disclosed information obtained from
`
`these efforts to third parties, see Barnes-Velez v. Fed. Communication Comm'n, 18-cv-
`
`634, 2018 WL 4178196, at *1-3 (M.D. Fla. May 8, 2018), R&R adopted, 2018 WL 4153937
`
`(M.D. Fla. Aug. 30, 2018). The speculative and conclusory claims presented by Plaintiff
`
`in this lawsuit fall into this legal category. As another court put it: “It is clear that this
`
`Court is not the forum that can provide Plaintiff with the type of assistance [he] truly needs.
`
`Plaintiff's allegations are simply based on some paranoid or delusional fantasy and
`
`unsupported imaginings that Defendants… are engaged in an elaborate and massive
`
`criminal conspiracy to torture and torment [him].” Marshall v. Stengel, 2010 WL 1930172,
`
`
`11Largely comprised of “background,” Plaintiff’s complaint lacks any coherent factual detail concerning what
`each Defendant is alleged to have done beginning in May 2019 or later. Although Plaintiff now argues that
`the “horrors” to which the complaint alludes refer to assassination attempts, the only allegations regarding
`such attempts are conclusory statements in Exhibit A, the highly interpretive, annotated summary of
`Plaintiff’s alleged web site logs. (See Doc. 1-1). Even Plaintiff admits that he cannot identify “the actual
`identity” of visitors to his website. Instead, he asserts “default identities to a statistical significance of near
`certainty” based on his personal analysis and opinion. (Doc. 1-1 at 3, PageID 13).
`14
`
`
`
`

`

`Case: 1:22-cv-00290-DRC-SKB Doc #: 28 Filed: 10/12/22 Page: 15 of 23 PAGEID #: 339
`
`
`
`at *3 (W.D. Ky. May 12, 2010).
`
`
`
`D. Lack of Venue in this Court Under Rule 12(b)(3)
`
`In their joint motion to dismiss, Defendants Alphabet and Cook argue that venue
`
`does not lie in this district. The undersigned agrees. Venue in federal court is proper in:
`
`(1) a judicial district in which any defendant resides, if all defendants are
`residents of the State in which the district is located;
`
`(2) a judicial district in which a substantial part of the events or omissions
`giving rise to the claim occurred, or a substantial part of property that is
`the subject of the action is situated; or
`
`(3) if there is no district in which an action may otherwise be brought as
`provided in this section, any judicial district in which any defendant is
`subject to the court’s personal jurisdiction with respect to such action.
`
`
`28 U.S.C. § 1391(b).
`
`It is a plaintiff’s burden to establish “proper venue after an objection to venue has
`
`been raised.” 513 Ventures, LLC v. PIV Enterprises, Inc., No. 1:11-CV-573, 2012 WL
`
`995277, at *5 (S.D. Ohio Mar. 23, 2012) (citing Centerville ALF, Inc. v. Balanced Care
`
`Corp., 197 F. Supp. 2d 1039, 1046 (S.D. Ohio 2002)). In the case presented, Plaintiff
`
`does not argue that any Defendant is a resident of Ohio or that he himself is a resident.
`
`Instead, Plaintiff appears to argue that “a substantial part of the events … giving rise to
`
`the claim occurred” in this district. See 28 U.S.C. § 1391(b)(2). In oppos