.**■
`
`!'
`
`1
`Appendix Table of Contents
`
`APPENDIX A
`Pages al-a20:
`US District Court for Southern Ohio (Cincinnati.)
`Orders in Bardes v. Bush et. al. (l:22-cv-290-DRC-
`SKB) filed on May 29, 2022 dismissed on March 6,
`2023.
`
`APPENDIX B
`Pages a21-a27:
`Sixth Circuit Court of Appeals (Cincinnati.) Orders in
`Bardes u. Bush et. al. (No. 23-3272) filed May 30,
`2023 denied on December 4, 2023.
`
`
`
`!'
`
`1
`Appendix Table of Contents
`
`APPENDIX A
`Pages al-a20:
`US District Court for Southern Ohio (Cincinnati.)
`Orders in Bardes v. Bush et. al. (l:22-cv-290-DRC-
`SKB) filed on May 29, 2022 dismissed on March 6,
`2023.
`
`APPENDIX B
`Pages a21-a27:
`Sixth Circuit Court of Appeals (Cincinnati.) Orders in
`Bardes u. Bush et. al. (No. 23-3272) filed May 30,
`2023 denied on December 4, 2023.
`
`
`
`al
`
`Appendix A
`(Court Orders)
`March 6, 2023. District Court Orders
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO WESTERN
`DIVISION
`DAVID ANDREW BARDES, Plaintiff, v.
`GEORGE WALKER BUSH, et al., Defendant.
`Case No. l:22-cv-290 JUDGE DOUGLAS R.
`COLE Magistrate Judge Bowman
`OPINION AND ORDER
`“Extraordinary claims require extraordinary
`evidence.” Savage v. Warden, Pickaway Corr. Inst.,
`No. l:21-cv-33, 2022 WL 4357465, at *14 (S.D. Ohio
`Sept. 20, 2022) (“borrowing] a phrase from Carl
`Sagan”). David Bardes tells a truly extraordinary
`story—one that could be ripped from the pages of a
`political thriller. He has long researched and
`published his claim that President George W. Bush,
`Vice President Dick Cheney, and others have used
`hypothermic torture on their enemies, indirectly
`leading to its use on him, as well. (R&R, Doc. 28,
`#326). Now, though, he claims the pair are in cahoots
`with Microsoft, Google, Apple, and the current or
`former CEOs of those companies “to silence his
`research and writings, including through attempts to
`kill him.” (Id.).
`The Court does not question the sincerity of
`Bardes’s beliefs. But courts do not accept “allegations
`that are sufficiently fantastic to defy reality as we
`know it,” like “claims about little green men, or the
`plaintiffs recent trip to Pluto, or experiences in time
`travel.” Courie v. Alcoa Wheel & Forged Prods., 577
`
`
`
`a2
`
`F.3d 625, 629 (6th Cir. 2009) (quoting Ashcroft v.
`Iqbal, 556 U.S. 662, 696 (2009) (Souter, J„
`dissenting)). After Case: l:22-cv-00290-DRC-SKB
`Doc #: 33 Filed: 03/06/23 Page: 1 of 19 PAGEID #:
`783 2 reviewing the Magistrate Judge’s Report and
`Recommendation (Doc. 28), the Court agrees with her
`that Bardes’s story has no legal merit and no
`plausible basis in reality. So the Court ADOPTS the
`R&R’s (Doc. 28) conclusions, although for slightly
`different reasons. Thus, the Court DISMISSES
`Bardes’s Complaint (Doc. 1) WITH PREJUDICE.
`And the Court DENIES all pending motions (Docs. 5,
`8—13, 15, and 25) as MOOT and OVERRULES
`Bardes’s Objections (Doc. 31). Finally, the Court
`notifies Bardes that, should he file any more frivolous
`complaints, the Court will declare him a vexatious
`litigator.
`BACKGROUND
`A. Bardes’s Complaint
`After paying his filing fee, Bardes filed his
`Complaint. In her R&R, the Magistrate Judge
`extensively describes the factual basis of Bardes’s
`Complaint. The Court will quote her liberally.
`Bardes’s Complaint names “eight individual and
`corporate defendants.” (Doc. 28, #325). These are
`former President George W. Bush, former Vice
`President Dick Cheney, Bill Gates, Microsoft,
`Alphabet (Google’s parent company), Larry Page
`(Google’s co-founder and Alphabet’s former CEO),
`Apple, and Tim Cook (Apple’s current CEO). “In
`addition, [Bardes] includes two individual defendants
`identified only as John and Jane Doe.” (Doc. 28,
`#326).
`
`
`
`a3
`
`Apparently, after he was falsely accused of
`failing to pay child support, he was jailed, though he
`doesn’t say where. While incarcerated, he endured
`hypothermic torture, which he also calls Cold Cell
`torture. (Id.). After his release from a Cold Cell, he
`says he “began researching punishment holding cells”
`and apparently learned that President Bush and
`others regularly used Cold Cell torture. (Id.). “He
`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 mur-
`ders.”(Id. at #326) (citations and internal quotation
`marks omitted).
`Now, Bardes thinks “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.” (Id.). He has sued various
`parties on similar grounds before, (id. at #327—31),
`but thinks that the defendants colluded to get those
`suits dismissed, (id. at #326). He also accuses them of
`retaliating against him using “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.” (Id.).
`In terms of relief, Bardes “seeks $17 billion
`dollars [sic] in compensatory damages, and triple
`that amount in extraordinary damages from all
`defendants for the reckless infliction of emotional
`distress, among other things.” (Id. at #326-27
`(citations and internal quotation marks omitted))
`B. Pending motions After Bardes filed the
`Complaint, Bardes and several defendants filed a
`flurry of motions, several of which are pending. The
`
`
`
`a4
`
`pending motions include the following. First, Bardes
`moved for default judgment against President Bush,
`who has yet to appear. (Doc. 5). Next, he moved for
`default judgment against Gates and Microsoft, who
`had also failed to appear at the time. (Doc. 8).
`Microsoft has since appeared. (Doc. Case: l:22-cv-
`00290-DRC-SKB Doc #: 33 Filed: 03/06/23 Page: 3 of
`19 PAGEID #: 785 4 23). He also moved for default
`judgment against Vice President Cheney, who has
`yet to appear. (Doc. 10). And he moved for default
`judgment against Apple (Doc. 15) and seemingly
`against Cook as well (Doc. 13). But by the time he did
`so, they had appeared. (Doc. 7). Finally, he moved to
`compel the Court to process his default judgment
`motions. (Doc. 9, #90).
`There are also three pending motions to
`dismiss on the docket. Alphabet and Larry Page
`move to dismiss the case. (Doc. 11). Their motion
`“seeks dismissal under Rule 12(b)(6) based upon
`Plaintiffs failure to state any claim.” (Doc. 28, #327).
`They also argue that “this Court lacks personal
`jurisdiction over the Alphabet defendants, and that
`venue does not lie in the Southern District of Ohio.”
`(Id.).
`
`Apple also moves to dismiss. (Doc. 12). “Apple’s
`motion points out that [Bardes] filed a prior lawsuit
`in this Court on September 20, 2021 that contained
`substantially identical allegations.” (Doc. 28, #327
`(citation omitted)). So the motion “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.” (Id.). Apple also “seeks dismissal for
`lack of personal jurisdiction, for improper venue, and
`for insufficient service of process.” (Id.).
`
`
`
`a5
`
`Finally, Microsoft also seeks dismissal. (Doc.
`25). “Microsoft’s motion discusses [Bardes]’s long
`history of filing frivolous lawsuits based on the same
`or similar allegations as those contained in this case.”
`(Doc. 28, #327 (citations and internal quotation
`marks omitted)). Note, though, that Microsoft seeks
`dismissal for failure to state a claim, not claim
`preclusion. (Doc. 25, #305). And, “[i]n addition to
`seeking Case: l:22-cv-00290-DRC-SKB Doc #: 33
`Filed: 03/06/23 Page: 4 of 19 PAGEID #: 786 5
`dismissal for failure to state a claim under Rule
`12(b)(6), Microsoft seeks dismissal for insufficient
`service of process.” (Id.).
`C. The R&R
`The Magistrate Judge concludes that Bardes’s
`complaint is legally and factually frivolous. She offers
`two major reasons. First, the doctrine of claim
`preclusion (formerly known as res judicata) prevents
`Bardes from re-litigating the same allegations and
`claims he has litigated (and lost) before. (Doc. 28,
`#333-36). Second, the claim is “fantastic or
`delusional.” (Id. at #336—39).
`For these reasons, along with others offered by
`Alphabet, Larry Page, and Apple, the Magistrate
`Judge recommends that the Court not only grant
`their motions to dismiss but also sua sponte dismiss
`the whole case with prejudice under Fed. R. Civ. P.
`12(b)(6). (Doc. 28, #345-46). She also recommends
`that the Court warn Bardes “that any further
`frivolous filings in this Court may result in [him]
`being declared a vexatious litigator.” (Id. at #346).
`This would impose a pre-filing review requirement on
`him in future lawsuits.
`
`
`
`a6
`
`Separately, the Magistrate Judge also
`concludes that venue is improper, (id. at #339-41),
`that the Court lacks personal jurisdiction over any of
`the defendants, (id. at #341), and that there was
`insufficient service of process, (id. at #341-43). So, in
`the alternative, she recommends the Court dismiss
`the case under Fed. R. Civ. P. 12(b)(2), 12(b)(3), or
`12(b)(5). (Doc. 28, #346).
`D. Bardes’s Objections
`In his Objections to the R&R, Bardes mostly
`attempts to prove that he is competent, highly
`intelligent, successful, and sane, to rebut the
`Magistrate Judge’s conclusion that his complaint is
`“fantastic or delusional.” (See generally Doc. 31). He
`also addresses each of her other bases for
`recommending dismissal except lack of personal
`jurisdiction.
`Bardes begins with claim preclusion, arguing
`it does not apply for two reasons. First, it does not
`apply because the previous action was a petition for a
`writ of mandamus, while this one is a personal injury
`claim. (Id. at #384^85). Second, apparently his
`previous lawsuit “ended in 2017,” while the events
`here “occurred in 2019 and 2021.”1 (Id. at #385).
`Bardes then addresses improper service,
`failure to state a claim, and improper venue. Because
`he is proceeding pro se, he says that it is unfair to
`expect him to properly serve the defendants. (Id.). He
`says that he believes he properly stated a claim, but
`moves for leave to amend his complaint to cure any
`defects. (Id.). And finally, he says that venue is
`proper because “the most egregious efforts to kill
`[him] ... occurred in Cincinnati.” (Id. at 386).
`
`
`
`a7
`
`1 Note that the Magistrate Judge bases her
`claim preclusion analysis on Bardes v. United States,
`No. l:21-CV-598, 2021 WL 4621568, at *2 (S.D. Ohio
`Oct. 7, 2021), report and recommendation adopted,
`No. l:21-CV-598, 2021 WL 6063286 (S.D. Ohio Dec.
`21, 2021), affd, No. 22-3063, 2022 WL 18461490 (6th
`Cir. Aug. 3, 2022). The Court issued that decision in
`2021, not 2017.
`E. Alphabet and Page’s Response to Bardes’s
`Objections
`Alphabet and Page responded to Bardes’s
`Objections. (Doc. 32). They disagree with Bardes’s
`accusations that the Magistrate Judge “predicat[ed]
`her recommendations on Plaintiffs mental state.”
`(Doc. 32, #779). Instead, they say, she “provided
`thoughtful analysis of the legal bases for why
`Defendants’ motions should be granted and why
`[Bardesj’s claims should be summarily dismissed.”
`(Id. at #779- 80).
`Meanwhile, they say that Bardes’s “objections
`merely state his disagreement with the R&R[’s]
`conclusions, reaffirm his complaint’s conclusory
`allegations ... and take issue with the perceived
`slight regarding his mental state.” (Id. at #780). They
`conclude that, because his “objections are simply a
`mere disagreement [sic] with the R&R without
`providing a sufficient basis for why the R&R should
`not be adopted[,] ... the Magistrate Judge’s Report
`and Recommendation should be adopted in its
`entirety.” (Id.).
`Given the passage of time, the Court expects
`no other response to Bardes’s Objections. Thus, the
`matter is ripe for review.
`LEGAL STANDARD
`
`
`
`a8
`
`Under Fed. R. Civ. P. 72(b)(3), district courts
`review an R&R de novo after a party files a timely
`objection. This review, however, applies only to “any
`portion to which a proper objection was made.”
`Richards v. Colvin, No. 2:12-cv-748, 2013 WL
`5487045, at *1 (S.D. Ohio Sept. 30, 2013). In
`response to such an objection, “[t]he district court
`‘may accept, reject, or modify the recommended
`Case: l:22-cv-00290-DRC-SKB
`disposition; receive
`Doc #: 33 Filed: 03/06/23 Page: 7 of 19 PAGEID #:
`789 8 further evidence; or return the matter to the
`magistrate judge with instructions.’” Id. (quoting
`Fed. R. Civ. P. 72(b)(3)).
`By contrast, if a party makes only a general
`objection, that “has the same effectQ as would a
`failure to object.” Howard u. Sec 'y of Health & Hum.
`Servs., 932 F.2d 505, 509 (6th Cir. 1991); Boyd v.
`United States, No. l:16-cv-802, 2017 WL 680634, at
`*1 (S.D. Ohio Feb. 21, 2017). A litigant must identify
`each issue in the R&R to which he or she objects with
`sufficient clarity that the Court can identify it, or else
`the litigant waives the issue. Miller v. Currie, 50 F.3d
`373, 380 (6th Cir. 1995) (“The objections must be
`clear enough to enable the district court to discern
`those issues that are dispositive and contentious”).
`That said, Bardes is proceeding pro se. A pro
`se litigant’s pleadings are to be construed liberally
`and are subject to less stringent standards than
`formal pleadings filed by attorneys. Haines v. Kerner,
`404 U.S. 519, 520-21 (1972); Franklin v. Rose, 765
`F.2d 82, 84-85 (6th Cir. 1985). But pro se litigants
`still must comply with the procedural rules that
`govern civil cases. McNeil v. United States, 508 U.S.
`106, 113 (1993).
`
`
`
`a9
`
`For unobjected portions of the R&Rs, the
`advisory committee notes to Federal Rule of Civil
`Procedure 72(b) suggest that the Court still must
`“satisfy itself that there is no clear error on the face
`of the record in order to accept the recommendation.”
`See Redmon v. Noel, No. l:21-CV-445, 2021 WL
`4771259, at *1 (S.D. Ohio Oct. 13, 2021) (collecting
`cases).
`
`LAW AND ANALYSIS
`The Magistrate Judge recommends sua sponte
`dismissal with prejudice. By this she means the
`Court should dismiss the whole case on its own
`accord and not give Bardes an opportunity to amend
`his Complaint. But “[generally, a district court may
`not sua sponte dismiss a complaint where the filing
`fee has been paid unless the court gives the plaintiff
`the opportunity to amend the complaint.” Apple u.
`Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (citing
`Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999)).
`And here Bardes has paid a filing fee.
`So let’s start with a basic question—can the
`Court sua sponte dismiss the case despite Bardes
`having paid? Yes. Even if a plaintiff has paid a filing
`fee, “a district court may, at any time, sua sponte
`dismiss a complaint for lack of subject matter
`jurisdiction pursuant to Rule 12(b)(1) of the Federal
`Rules of Civil Procedure when the allegations of a
`complaint are totally implausible, attenuated,
`unsubstantial, frivolous, devoid of merit, or no longer
`open to discussion.” Id. (emphasis added) (citing
`Hagans v. Lavine, 415 U.S. 528, 536—37 (1974)
`(collecting cases)). A complaint is frivolous “where it
`lacks an arguable basis either in law or in fact.”
`Neitzke v. Williams, 490 U.S. 319, 325 (1989).2
`
`
`
`alO
`
`2 In Neitzke, the Supreme Court defined
`frivolousness while considering in forma pauperis
`complaints (ones where the plaintiff has not paid a
`filing fee). But the Sixth Circuit has applied Neitzke’s
`formulation of frivolousness in the Apple u. Glenn
`context numerous times. See Clark v. United States,
`74 F. App’x 561 (6th Cir. 2003); Hassink v. Mottl, 47
`F. App’x 753 (6th Cir. 2002); Forbush v. Zaleski, 20 F.
`App’x 481 (6th Cir. 2001); Odom v. Martin, 229 F.3d
`1153 (6th Cir. 2000).
`As further described below, the Magistrate
`Judge rightly concludes Bardes’s Complaint is both
`legally and factually frivolous.3 So the Court will sua
`sponte dismiss the case under Fed. R. Civ. P.
`12(b)(1). And, though courts typically dismiss under
`12(b)(1) without prejudice, the Court agrees with the
`Magistrate Judge’s recommendation that it should
`dismiss Bardes’s Complaint with prejudice.
`Finally, as the Court finds frivolousness
`independently sufficient to warrant dismissal, the
`Court declines to consider any of the alternative
`grounds the R&R raises for recommending dismissal,
`nor Bardes’s objections to those grounds.
`A. Bardes’s Complaint is legally frivolous.
`A complaint is legally frivolous when it is
`based on “based on an indisputably meritless legal
`theory.” Neitzke, 490 U.S. at 325. The Magistrate
`Judge suggests that Bardes’s Complaint is meritless
`because claim preclusion (or res judicata) bars it.
`(Doc. 28, #333). Claim preclusion is a legal doctrine
`which provides that “a final judgment on the merits
`bars further claims by parties or their privies based
`on the same cause of action.” Bragg v. Flint Bd. of
`
`
`
`all
`
`Educ., 570 F.3d 775, 776 (6th Cir. 2009) (quoting
`Montana v. United States, 440 U.S. 147, 153 (1979)).
`Before the Court embarks on an extended
`claim preclusion analysis, though, the Court first
`addresses whether claim preclusion is an appropriate
`basis for suasponte dismissal. After all, claim
`preclusion is “an affirmative defense available to the
`defending party, and ‘[cjourts generally lack the
`ability to raise an affirmative defense sua sponte.”’4
`Neff v. Flagstar Bank, FSB, 520 F. App’x 323, 327
`(6th Cir. 2013) (citing Hutcherson v. Lauderdale
`Cnty., 326 F.3d 747, 757 (6th Cir. 2003)). But “a court
`may take the initiative to assert the res judicata
`defense sua sponte in ‘special circumstances.’” Id.
`One such circumstance is “when ‘a court is on notice
`that it has previously decided the issue presented.’”
`Id. (quoting Arizona v. California, 530 U.S. 392, 412
`(2000)). Two years ago, this Court dismissed Bardes’s
`petition for a writ of mandamus based on essentially
`identical facts. See Bardes v. United States, No. 1:21-
`CV-598, 2021 WL 4621568, at *2 (S.D. Ohio Oct. 7,
`2021), report and recommendation adopted, No. 1:21-
`CV-598, 2021 WL 6063286 (S.D. Ohio Dec. 21, 2021),
`affd, No. 22-3063, 2022 WL 18461490 (6th Cir. Aug.
`3, 2022). So this justifies sua sponte dismissal,
`assuming claim preclusion applies.
`3 The Magistrate Judge uses the phrase
`“fantastic or delusional,” which courts widely use.
`See, e.g., Hill v. Lappin, 630 F.3d 468, 471 (6th Cir.
`2010) (citing Neitzke, 490 U.S. at 328) (“[A] judge
`does not have to accept ‘fantastic or delusional’
`factual allegations as true”). Bardes seems to take
`this to mean that the Magistrate Judge considers
`him medically insane. (Doc. 31, #376). She never said
`that and, in fact, took great care to be respectful. (See
`
`
`
`al2
`
`Doc. 28, #326 (“As best the undersigned can discern,
`Plaintiff sincerely believes” his allegations)). Still, to
`avoid this confusion, the Court will use “factually
`frivolous” wherever possible.
`4 Only one party raises claim preclusion on its
`own—and even then, not correctly. Apple raises it in
`a motion to dismiss rather than in an answer. But a
`party can raise an affirmative defense as a basis for
`dismissal only if “the plaintiffs’ complaint contains
`facts which satisfy the elements of the defendant’s
`affirmative defense.” Estate of Barney v. PNC Bank,
`Nat’l Ass’n, 714 F.3d 920, 926 (6th Cir. 2013). Here,
`Bardes’s Complaint does not. Nonetheless, Bardes
`“was both party to and counsel in the previous suit
`and as such he was intimately familiar with the
`factual and legal bases of defendant’s motion.
`Therefore, he cannot claim that he was prejudiced by
`the form of the pleadings.” Platsis v. E.F. Hutton &
`Co., 946 F.2d 38, 42 (6th Cir. 1991) (citing Wright v.
`Holbrook, 794 F.2d 1152 (6th Cir. 1986)). So the
`Court could potentially reach the argument at least
`as to Apple. However, neither Larry Page and Google
`nor Microsoft raise claim preclusion at all in their
`motions to dismiss. And, of course, several other
`parties have failed to appear. So if the Court
`contemplates dismissing the whole case due to claim
`preclusion, the better approach would be to do so sua
`sponte.
`With that settled, the Court turns to claim
`preclusion proper.5 The doctrine applies when there
`is: 1. a final decision on the merits by a court of
`competent jurisdiction; 2. a subsequent action
`between the same parties or their “privies”; 3. an
`issue in the subsequent action which was litigated or
`which should have been litigated in the prior action;
`
`
`
`al3
`
`and 4. an identity of the causes of action. Bragg, 570
`F.3d at 776 (6th Cir. 2009) (quoting Bittinger v.
`Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir.
`1997)).
`
`1. This Court issued a final decision on the
`merits.
`Bardes v. United States, 2021 WL 6063286 is a
`final decision on the merits, decided by this Court.
`There, the Court dismissed Bardes’s petition for a
`writ of mandamus, where he asked the Court to
`compel the executive branch to charge and prosecute
`Bush, Cheney, and several unnamed CIA officers for
`hypothermic torture. See 2021 WL 4621568, at *2,
`report and recommendation adopted, 2021 WL
`6063286. The Sixth Circuit affirmed, 2022 WL
`18461490, and the time to petition the Supreme
`Court for a writ of certiorari has expired.
`5 The Magistrate Judge notes that, while she
`believes Ohio law should apply when this Court
`analyzes claim preclusion in diversity jurisdiction,
`under Semtek Int’l Inc. v. Lockheed Martin Corp., 531
`U.S. 497, 508-09 (2001), and Prod. Sols. Int’l, Inc. v.
`Aldez Containers, LLC, 46 F. 4th 454, 457-58 (6th
`Cir. 2022), there is an argument that federal law
`should apply, as the prior case was in the same
`federal court, see Askew v. Davidson Cnty. Sheriff’s
`Off., No. 3:19- cv-00629, 2020 WL 587424, at *3
`(M.D. Tenn. Feb. 6, 2020). (Doc. 28, #333). She goes
`on to clarify that there is no real effect here, because
`“both Ohio law and federal law preclude relitigation
`of any issue previously litigated, even if based on a
`different cause of action.” (Id. at #333-34 (citing In re
`Trost, 510 B.R. 140, 150-151 (W.D. Mich. 2014); State
`ex rel. Nickoli v. Erie MetroParks, 923 N.E. 2d 588,
`592 (Ohio 2010)). Because the Court agrees with the
`
`
`
`a 14
`
`Magistrate Judge that the choice of law question does
`not affect the outcome of the case in any way, and
`Bardes’s objections don’t address the matter, the
`Court declines to address it.
`2. Privity exists. Even if the named parties are
`not identical, privity can exist in the subsequent
`action when: • the stranger to the first action is so
`closely related to one of the parties that a subsequent
`claim will merely repeat the prior claim; • there was
`no reason why the plaintiff could not have asserted
`these claims in the prior proceeding; and • the
`precluded plaintiff had a full and fair opportunity to
`litigate the issues involved during the prior
`proceeding. Platsis, 946 F.2d at 42.
`The parties in Bardes v. United States and the
`parties in the subsequent action, this one, are not
`identical. But in the earlier case, Bardes alleged that
`every single named defendant here colluded with
`George W. Bush, Dick Cheney, and the CIA to target
`him. (See generally Doc. 3-1 in Case No. l:21-cv-598).
`He thus easily could have joined these parties to his
`earlier suit and sought monetary damages against
`them. And Bardes litigated that case fully—again, as
`noted above, he even availed himself of his appellate
`rights before the Sixth Circuit, which affirmed this
`Court’s decision.
`3. Bardes should have litigated the issues here
`in the prior action
`“[T]he third element of claim preclusion not
`only prohibits parties from bringing claims they
`already have brought, but also from bringing those
`claims they should have brought.” Heike v. Cent.
`Michigan Univ. Bd. of Trustees, 573 F. App'x 476,
`482 (6th Cir. 2014) (emphasis original). “[Pjlaintiffs
`
`
`
`al5
`
`cannot avoid the effects of claim preclusion by merely
`repacking their grievances into alternative Case:
`l:22-cv-00290-DRC-SKB Doc #: 33 Filed: 03/06/23
`Page: 13 of 19 PAGEID #: 795 14 theories of recovery
`or by seeking different remedies.” Id. (citing Rawe v.
`Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529 (6th Cir.
`2006)).
`True, Bardes’s original action was a petition
`for a writ of mandamus against the United States,
`while this one is a personal injury claim. That doesn’t
`matter. As the Court suggested above, given that
`both actions are based on the same transaction and
`same operative facts, he should have joined all the
`parties and sought all the remedies he was looking
`for in the first action. Moore, Successor Tr. of
`Clarence M. Moore & Laura P. Moore Tr. v. Hiram
`Twp., Ohio, 988 F.3d 353, 361 (6th Cir. 2021) (“The
`doctrine of res judicata requires a plaintiff to advance
`all theories for every ground of relief in the first
`action or be forever barred from asserting it. ...
`Where, as here, claims brought in the second suit
`arose from the same transaction, or series of
`transactions forming the basis of the first suit, those
`claims must be litigated in the earlier action.”)
`(citations and internal quotation marks omitted)
`4. Both causes of action share an identity.
`Whether causes of action share an identity
`“depends on factual overlap.” Heike, 573 F. App’x at
`483 (citing United States v. Tohono O’Odham Nation,
`563 U.S. 307, 316 (2011)) (emphasis original). Two
`suits share an identity “if they are based on
`substantially the same operative facts, regardless of
`the relief sought in each suit.” Id. 6
`
`
`
`al6
`
`If one were to map the “factual overlap” of
`Bardes’s two actions on a Venn diagram, it would be
`a circle. The Magistrate Judge highlighted that both
`complaints “contain many identical allegations” and
`Exhibit A attached to both complaints is exactly
`identical.7 (Doc. 28, #334-35, n. 10). In both cases,
`Bardes accused Bush, Cheney, the CIA, and all the
`named parties here of trying to interfere with his
`website, target him, and kill him because of his
`research into Cold Cell torture. (Compare Doc. 3-1
`with Doc. 3-1 in Case No. l:21-cv-598). Other than
`the type of relief sought (mandamus vs. money), the
`Court cannot see any difference between the two
`actions at all.
`Because all four factors apply, claim preclusion
`bars Bardes’s Complaint. And because the Court is
`on notice that it decided the prior decision, the Court
`can sua sponte take notice of that, rendering the
`Complaint legally frivolous
`B. Bardes’s Complaint is factually frivolous.
`A complaint is factually frivolous when it
`contains “fanciful factual allegation[s].” Neitzke, 490
`U.S. at 325. When sua sponte evaluating a complaint
`for factual frivolousness, courts have “the unusual
`power to pierce the veil of the complaint’s factual
`allegations and dismiss those claims whose factual
`contentions are clearly baseless.”8 Id. at 327.
`7 Exhibit A logs traffic to his website and
`forms the backbone of his allegations that the
`defendants are “meeting” on his website, colluding,
`and trying to interfere with his research. 8 As the
`Court explained earlier, supra note 2, the Sixth
`Circuit uses this “unusual power” even when
`
`
`
`a 17
`
`plaintiffs have paid filing fees, pursuant to Apple v.
`Glenn
`
`Courts in this Circuit have found allegations
`similar to Bardes’s to be factually frivolous—
`including allegations that (1) the “deep state”
`surveilled and brainwashed a plaintiff and his wife,
`Tucker v. FBI Head Quarters, No. 19-13626, 2020 WL
`2059866, at *2 (E.D. Mich. Apr. 29, 2020); (2) various
`unnamed parties molested and tortured a plaintiff
`using biomedical treatments, Bartlett v. Kalamazoo
`Cnty. Cmty. Mental Health Bd., No. 18-1319, 2018
`WL 4492496, at *1-2 (6th Cir. Aug. 22, 2018); (3)
`defendants have conspired to cover up evidence of
`government officials targeting a plaintiff, Marshall v.
`Stengel, No. 3:10CV-159-S, 2010 WL 1930172, at *1-
`2 (W.D. Ky. May 12, 2010); and (4) the government
`surveilled and tortured a plaintiff, Marshall v.
`Huber, No. CIV.A. 3:09-CV-54-S, 2009 WL 1904337,
`at *1-2 (W.D. Ky. July 1, 2009).
`Much like the plaintiff in Bartlett, Bardes
`claims he faced exotic torture methods. And like the
`plaintiffs in Tucker and Huber, Bardes says that the
`government has surveilled him. Moreover, like the
`plaintiff in Stengel, he alleges a conspiracy of
`powerful actors trying to cover up their misdeeds
`against him. These assertions are quintessential
`examples of fanciful factual allegations—as the
`Magistrate Judge noted, they “stand genuinely
`outside the common experience of humankind.” (Doc
`28, #337) (citing Robinson v. Love, 155 F.R.D. 535,
`535 (E.D. Pa. 1994)). So, Bardes’s complaint is
`factually frivolous.
`C. The Court should dismiss under Fed. R. Civ.
`P. 12(b)(1).
`
`
`
`al8
`
`Given that the claims are both legally and
`factually frivolous, the Court agrees with the
`Magistrate Judge that it should sua sponte dismiss
`the case with prejudice. Case: l:22-cv-00290-DRC-
`SKB Doc #: 33 Filed: 03/06/23 Page: 16 of 19 PAGEID
`#: 798 17 But the Court parts ways at the margins as
`to how it should accomplish that dismissal. The
`Magistrate Judge suggests sua sponte dismissal with
`prejudice under Fed. R. Civ. P. 12(b)(6), for failure to
`state a claim. But the Court does not believe that is
`an option. Rather, the dismissal should be accom
`plished under Fed. R. Civ. P. 12(b)(1).
`As noted earlier, this Court’s power to sua
`sponte dismiss cases for frivolousness is detailed in
`Apple v. Glenn—“[generally, a district court may not
`sua sponte dismiss a complaint where the filing fee
`has been paid unless the court gives the plaintiff the
`opportunity to amend the complaint.” 183 F.3d at 479
`(citing Benson, 179 F.3d at 1017). The Apple Court
`traces these protections back to Tingler v. Marshall,
`716 F.2d 1109 (6th Cir. 1983). But, as explained
`earlier, the Apple Court clarifies that “a district court
`may, at any time, sua sponte dismiss a complaint for
`lack of subject matter jurisdiction pursuant to Rule
`12(b)(1) of the Federal Rules of Civil Procedure when
`the allegations of a complaint are totally implausible,
`attenuated, unsubstantial, frivolous, devoid of merit,
`or no longer open to discussion.” 183 F.3d at 479
`(citing Hagans, 415 U.S. at 536-37) (emphasis
`added).
`Note that the court specifies Rule 12(b)(1).
`This is for good reason. The Apple Court brackets
`this whole discussion by warning that “when a
`district court is faced with a complaint that appears
`to be frivolous or unsubstantial in nature, dismissal
`
`
`
`a 19
`
`under Rule 12(b)(1) (as opposed to Rule 12(b)(6)) is
`appropriate in only the rarest of circumstances
`where, as in the present case, the complaint is
`deemed totally Case: l:22-cv-00290-DRC-SKB Doc #:
`33 Filed: 03/06/23 Page: 17 of 19 PAGEID #: 799 18
`implausible. Otherwise, a district court must afford
`the plaintiff the procedural protections of Tingler
`before dismissing the complaint.”
`This language suggests two paths for
`dismissing a complaint. The first is to dismiss under
`12(b)(6) after providing the plaintiff an opportunity
`to amend, as Tingler commands. The other is to
`dismiss sua sponte under 12(b)(1), in those “rarest of
`circumstances” where the complaint is “totally
`implausible,” thus depriving a court of subject-matter
`jurisdiction.
`Bardes’s Complaint is one of those rare ones
`that belongs to the latter category. Thus, no
`opportunity to amend is warranted. Accordingly, the
`Court will dismiss the matter under Fed. R. Civ. P.
`12(b)(1).
`D. The Court should dismiss with prejudice.
`One question lingers. “Dismissal for lack of
`subject matter jurisdiction ordinarily is without
`prejudice, since by definition this Court lacks power
`to reach the merits of Plaintiffs claims.” Lee u.
`Taylor, No. l:22-CV-354, 2022 WL 2662955, at *3
`(S.D. Ohio July 11,
`2022), report and
`recommendation adopted, No. l:22-CV-354, 2022 WL
`4007609 (S.D. Ohio Sept. 2, 2022) (citing Ernst v.
`Rising, 427 F.3d 351, 366 (6th Cir. 2005)). Yet the
`Court previously suggested it would dismiss Bardes’s
`Complaint for lack of subject-matter jurisdiction with
`prejudice. How? “While normally dismissal for lack of
`
`
`
`a20
`
`subject matter jurisdiction is without prejudice,
`dismissal with prejudice is appropriate ... [when the]
`Complaint is frivolous.” See Jones u. United States,
`No. 2:20-cv-2331, 2021 WL 981298, at *3 (W.D. Tenn.
`Mar. 16, 2021) (citing Meitzner v. Young, No. 16-
`1479, 2016 WL 11588383, at *1 (6th Cir. Case: 1:22-
`cv-00290-DRC-SKB Doc #: 33 Filed: 03/06/23 Page:
`18 of 19 PAGEID #: 800 19 Oct. 25, 2016); Ernst, 427
`F.3d at 367). Because Bardes’s Complaint is both
`legally and factually frivolous, the Court can dismiss
`with prejudice even though it lacks subject-matter
`jurisdiction.
`CONCLUSION .
`For the reasons above, the Court largely
`ADOPTS the R&R’s conclusions. (Doc. 28). But the
`Court DISMISSES Bardes’s Complaint (Doc. 1)
`WITH PREJUDICE for lack of subject-matter juris
`diction under Rule 12(b)(1), not for failure to state a
`claim under Rule 12(b)(6). Because the Co
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