1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lisa Marie Donaldson, No. CV-19-05035-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Department of Energy Western Area Power Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s Application for Leave to Proceed In Forma 16 Pauperis (Doc. 2), which the Court hereby grants. The Court will screen Plaintiff’s 17 complaint (Doc. 1) pursuant to 28 U.S.C. § 1915(e)(2)1 before it is allowed to be served. 18 Pursuant to that screening, the complaint will be dismissed. 19 I. Legal Standard 20 Under 28 U.S.C. § 1915(e)(2), a complaint is subject to dismissal if it contains 21 claims that are “frivolous or malicious,” that “fail[] to state a claim upon which relief may 22 be granted,” or that “seek[] monetary relief against a defendant who is immune from such 23 relief.” Id. Additionally, under Federal Rule of Civil Procedure 8(a)(2), a pleading must 24 contain a “short and plain statement of the claim showing that the pleader is entitled to 25 relief.” Id. Although Rule 8 does not demand detailed factual allegations, “it demands 26 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 27 1 Although section 1915 largely concerns prisoner litigation, section 1915(e) applies 28 to all in forma pauperis proceedings. Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 1 Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, 2 supported by mere conclusory statements, do not suffice.” Id. 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 4 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 6 that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 8 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 9 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 10 allegations may be consistent with a claim, a court must assess whether there are other 11 “more likely explanations” for a defendant’s conduct. Id. at 681. 12 The Ninth Circuit has instructed that courts must “construe pro se filings liberally.” 13 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] 14 ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. 15 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Conclusory and vague 16 allegations, however, will not support a cause of action. Ivey v. Bd. of Regents of the Univ. 17 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A liberal interpretation may not supply 18 essential elements of the claim that were not initially pled. Id. 19 II. Analysis 20 Plaintiff sues the Department of Energy Western Area Power Administration (“the 21 Department”) under the Federal Tort Claims Act, alleging that “an ongoing nuisance 22 occurred” at Plaintiff’s residence between December 2011 and December 2015 in that the 23 Department’s electrical tower emitted electromagnetic fields (“EMFs”) “that trespassed 24 into [] Plaintiff’s home where she continued to experience repeated unpleasant[,] disturbing 25 and offensive electrical shocks, unpleasant tingling, serious medical and health issues, 26 including but not limited to: heart accelerations later diagnosed as supra ventricular 27 tachycardia (SVT)[,] severe and debilitating headaches, head congestion to the point she 28 cannot think, spastic uncontrollable leg twitching, gastrointestinal problems, debilitating 1 fatigue, full body tremors, eye drooping, vision problems, rashes, hair loss, ringing in the 2 ear, a burning sensation, memory loss, confusion, stuttering and many other ailments.” 3 (Doc. 1 at 1.) 4 “[A] complaint, containing both factual allegations and legal conclusions, is 5 frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 6 U.S. 319, 325 (1989). The Ninth Circuit has recognized that although “there is a generally 7 acknowledged public perception that EMFs cause health problems,” in fact “there is no 8 scientific evidence that EMFs from power lines . . . cause adverse health effects in nearby 9 residents.” United States v. 87.98 Acres of Land More or Less in the Cty. of Merced, 530 10 F.3d 899, 902 (9th Cir. 2008) (emphases added). 11 In Merced, the district court ruled “that there could be no evidence at trial that EMFs 12 cause actual health problems in nearby residents”—a ruling that no party appealed and 13 which the Ninth Circuit emphasized “accords with widespread authority holding that such 14 evidence is not scientifically reliable.” Id. at 903 & n.1. The Ninth Circuit affirmed the 15 district court judge’s decision to exclude testimony that “might tend to prejudice a jury 16 inclined to believe that EMFs do, in fact, cause health problems in nearby residents.” Id. 17 at 903. 18 Plaintiff’s claim is therefore frivolous—no scientifically reliable evidence could 19 establish that EMFs caused the harm alleged in the complaint. Cf. Jordan v. Georgia 20 Power Co., 466 S.E.2d 601, 606 (Ga. Ct. App. 1995) (concluding that a trespass action 21 alleging damage from EMFs was not legally cognizable).2 As such, it must be dismissed.
22 2 In Jordan, the Georgia Court of Appeals noted—in 1995—that “scientific evidence regarding whether EMFs cause harm of any kind” was “inconclusive,” such that “summary 23 judgment was proper” because invasion from EMFs could not “constitute a trespass.” 466 S.E.2d at 606. However, the court was careful to “not close the door on the possibility” 24 that later scientific research could reveal that EMFs do, in fact, cause damage, such that a lawsuit alleging damage from EMFs could become “legally cognizable” and a trespass 25 action could lie. Id. Nevertheless, Merced was decided 13 years after Jordan, and more recent cases continue to acknowledge that fears of EMFs, although pervasive, are irrational. 26 See, e.g., United States v. An Easement & Right-of-way Over 6.09 Acres of Land, More or Less, in Madison Cty., Alabama, 140 F. Supp. 3d 1218, 1261 (N.D. Ala. 2015) (although 27 the public may have “health and safety concerns” regarding EMFs, those concerns appear “overstated or even irrational given existing science”); Lakey v. Puget Sound Energy, Inc., 28 296 P.3d 860, 864-66 (Wash.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lisa Marie Donaldson, No. CV-19-05035-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Department of Energy Western Area Power Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s Application for Leave to Proceed In Forma 16 Pauperis (Doc. 2), which the Court hereby grants. The Court will screen Plaintiff’s 17 complaint (Doc. 1) pursuant to 28 U.S.C. § 1915(e)(2)1 before it is allowed to be served. 18 Pursuant to that screening, the complaint will be dismissed. 19 I. Legal Standard 20 Under 28 U.S.C. § 1915(e)(2), a complaint is subject to dismissal if it contains 21 claims that are “frivolous or malicious,” that “fail[] to state a claim upon which relief may 22 be granted,” or that “seek[] monetary relief against a defendant who is immune from such 23 relief.” Id. Additionally, under Federal Rule of Civil Procedure 8(a)(2), a pleading must 24 contain a “short and plain statement of the claim showing that the pleader is entitled to 25 relief.” Id. Although Rule 8 does not demand detailed factual allegations, “it demands 26 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 27 1 Although section 1915 largely concerns prisoner litigation, section 1915(e) applies 28 to all in forma pauperis proceedings. Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 1 Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, 2 supported by mere conclusory statements, do not suffice.” Id. 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 4 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 6 that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 8 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 9 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 10 allegations may be consistent with a claim, a court must assess whether there are other 11 “more likely explanations” for a defendant’s conduct. Id. at 681. 12 The Ninth Circuit has instructed that courts must “construe pro se filings liberally.” 13 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] 14 ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. 15 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Conclusory and vague 16 allegations, however, will not support a cause of action. Ivey v. Bd. of Regents of the Univ. 17 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A liberal interpretation may not supply 18 essential elements of the claim that were not initially pled. Id. 19 II. Analysis 20 Plaintiff sues the Department of Energy Western Area Power Administration (“the 21 Department”) under the Federal Tort Claims Act, alleging that “an ongoing nuisance 22 occurred” at Plaintiff’s residence between December 2011 and December 2015 in that the 23 Department’s electrical tower emitted electromagnetic fields (“EMFs”) “that trespassed 24 into [] Plaintiff’s home where she continued to experience repeated unpleasant[,] disturbing 25 and offensive electrical shocks, unpleasant tingling, serious medical and health issues, 26 including but not limited to: heart accelerations later diagnosed as supra ventricular 27 tachycardia (SVT)[,] severe and debilitating headaches, head congestion to the point she 28 cannot think, spastic uncontrollable leg twitching, gastrointestinal problems, debilitating 1 fatigue, full body tremors, eye drooping, vision problems, rashes, hair loss, ringing in the 2 ear, a burning sensation, memory loss, confusion, stuttering and many other ailments.” 3 (Doc. 1 at 1.) 4 “[A] complaint, containing both factual allegations and legal conclusions, is 5 frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 6 U.S. 319, 325 (1989). The Ninth Circuit has recognized that although “there is a generally 7 acknowledged public perception that EMFs cause health problems,” in fact “there is no 8 scientific evidence that EMFs from power lines . . . cause adverse health effects in nearby 9 residents.” United States v. 87.98 Acres of Land More or Less in the Cty. of Merced, 530 10 F.3d 899, 902 (9th Cir. 2008) (emphases added). 11 In Merced, the district court ruled “that there could be no evidence at trial that EMFs 12 cause actual health problems in nearby residents”—a ruling that no party appealed and 13 which the Ninth Circuit emphasized “accords with widespread authority holding that such 14 evidence is not scientifically reliable.” Id. at 903 & n.1. The Ninth Circuit affirmed the 15 district court judge’s decision to exclude testimony that “might tend to prejudice a jury 16 inclined to believe that EMFs do, in fact, cause health problems in nearby residents.” Id. 17 at 903. 18 Plaintiff’s claim is therefore frivolous—no scientifically reliable evidence could 19 establish that EMFs caused the harm alleged in the complaint. Cf. Jordan v. Georgia 20 Power Co., 466 S.E.2d 601, 606 (Ga. Ct. App. 1995) (concluding that a trespass action 21 alleging damage from EMFs was not legally cognizable).2 As such, it must be dismissed.
22 2 In Jordan, the Georgia Court of Appeals noted—in 1995—that “scientific evidence regarding whether EMFs cause harm of any kind” was “inconclusive,” such that “summary 23 judgment was proper” because invasion from EMFs could not “constitute a trespass.” 466 S.E.2d at 606. However, the court was careful to “not close the door on the possibility” 24 that later scientific research could reveal that EMFs do, in fact, cause damage, such that a lawsuit alleging damage from EMFs could become “legally cognizable” and a trespass 25 action could lie. Id. Nevertheless, Merced was decided 13 years after Jordan, and more recent cases continue to acknowledge that fears of EMFs, although pervasive, are irrational. 26 See, e.g., United States v. An Easement & Right-of-way Over 6.09 Acres of Land, More or Less, in Madison Cty., Alabama, 140 F. Supp. 3d 1218, 1261 (N.D. Ala. 2015) (although 27 the public may have “health and safety concerns” regarding EMFs, those concerns appear “overstated or even irrational given existing science”); Lakey v. Puget Sound Energy, Inc., 28 296 P.3d 860, 864-66 (Wash. 2013) (affirming exclusion of homeowners’ expert, who sought to opine “that EMF was a possible cause of childhood and adult leukemia, 1 The remaining question is whether to grant leave to amend. “Dismissal of a pro se || complaint without leave to amend is proper only if it is absolutely clear that the deficiencies || of the complaint could not be cured by amendment.” Schucker v. Rockwood, 846 F.2d 4}| 1202, 1203-04 (9th Cir. 1988) (internal quotation marks and citation omitted). “If a 5 || pleading can be cured by the allegation of other facts, a pro se litigant is entitled to an 6 || opportunity to amend before the final dismissal of the action.” Ball v. Cty. of Maricopa, 7\| 2017 WL 1833611, *1 (D. Ariz. 2017). 8 The basic factual premise of Plaintiff's complaint is fanciful. Denton v. Hernandez, 504 U.S. 25, 32 (1992) (“[T]he in forma pauperis statute . . . accords judges not only the || authority to dismiss a claim based on an indisputably meritless legal theory, but also the 11 |} unusual power to pierce the veil of the complaint’s factual allegations and dismiss those || claims whose factual contentions are clearly baseless,” which 1s “a category encompassing 13} allegations that are ‘fanciful’”’). The Court can perceive no factual amendment that could 14]| cure this fundamental deficiency. Amendment being futile, the complaint will be 15 || dismissed with prejudice and without leave to amend. 16 Accordingly, 17 IT IS ORDERED granting the Application to Proceed in District Court without || Prepaying Fees or Costs (Doc. 2). 19 IT IS FURTHER ORDERED that Plaintiff's complaint (Doc. 1) is dismissed with 20 || prejudice and without leave to amend. The Clerk of Court shall terminate the action. 21 Dated this 19th day of February, 2020. 22 23 fa 7
25 United States District Judge 26 27 28 Alzheimer’s disease, amyotrophic lateral sclerosis, and infertility. because the expert selectively sampled data within one of the studies he used, taking data indicating an EMF illness link and ignoring the larger pool of data within the study that showed no such □□□□□□□□ -4-