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