United States District Court, D. North Dakota
REPORT AND RECOMMENDATION
Charles S. Miller, Jr., Magistrate Judge
plaintiff, Chris Sevier (“Sevier'), initiated the
above-entitled action pro se and in forma
pauperis on October 23, 2017. What follows is a
pre-service review of his Complaint pursuant to 28 U.S.C.
§ 1915(e)(2). For the reasons set forth below, the
undersigned recommends that Sevier's Complaint be
dismissed without prejudice and without service of process.
initiated the above-entitled action pro se and
in forma pauperis pursuant to 42 U.S.C. § 1983.
He seeks to enjoin the State of North Dakota from legally
recognizing same sex marriages. Alternatively, he seeks to
compel the State of North Dakota to expand its definition of
marriage to include the right to marry inanimate objects and
to recognize his marriage to his computer. In so doing, he
asserts that the State has violated his constitutional right
to equal protection and due process by refusing to recognize
his marriage to a computer or otherwise issue him a license
so that he may remarry his computer in North Dakota. He has
named North Dakota Governor Doug Burgum, North Dakota
Attorney General Wayne Stenehjem, and Williams County Auditor
Beth M. Innis as defendants.
not the first such action filed by Sevier; he previously
filed what amounts to the same suit in the states of
Kentucky, Texas, Tennessee, Utah, and South Carolina. See
Sevier v. Bevin, et. al., No. 16-80-HRW, 2017
WL 1217162 at *1 (E.D. Ken. March 31, 2017); Sevier v.
Haslam, et al., Case No. 3:16-cv-00134 (M.D. Tenn.);
Sevier v. Abbott et al., Civil Action No.
4:16-cv-00347 (S.D. Tex.); Sevier v. Thompson, et.
al., Case No. 2:16-cv-00659 (D. Utah); Sevier v.
Haley et al., Civil Action No. 3:16-665 (D.S.C.).
STANDARD OF REVIEW
in forma pauperis are governed by 28 U.S.C. §
1915, which provides that the court may authorize the
commencement of an action without prepayment of fees by a
person submitting a financial affidavit evincing an inability
to pay. See 28 U.S.C. § 1915(a)(1).
Notwithstanding financial eligibility, the court may dismiss
the action if it concludes that the action is frivolous or
malicious, fails to state a claim, or seeks monetary relief
against a defendant who is immune from such relief.
See 28 U.S.C. § 1915(e)(2). “Dismissals
[under 28 U.S.C. § 1915] are often made sua sponte prior
to the issuance of process, so as to spare prospective
defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S.
319, 324 (1989); Mallard v. U.S. Dist. Ct. S.D.
Iowa, 490 U.S. 296, 307-308 (1989) (“Section
1915(d) [now §1915e(2)(B)(I) ], for example, authorizes
courts to dismiss a ‘frivolous or malicious'
action, but there is little doubt they would have power to do
so even in the absence of this statutory provision.”);
see also Stebbins v. Stebbins, 575 Fed.App'x 705
(8th Cir. 2014) (per curium) (affirming the district
court's pre-service dismissal of a non-prisoner's
pro se action); Key v. Does, 217 F.Supp.3d
100, 1007 (E.D. Ark. 2016) (“Although some district
courts have limited section 1915(e)(2)(B)(ii) pre-service
dismissal to litigants who are prisoners, [Citation Omitted],
all of the circuit courts to address the issue have held that
nonprisoner complaints can be screened and dismissed pursuant
to section 1915(e)(2)(B). . . .” and the “Eighth
Circuit has on several occasions affirmed decisions
dismissing nonprisoner cases under section 1915.”).
“[A] finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or
the wholly incredible, whether or not there are judicially
noticeable facts available to contradict them.”
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Complaint filed by Sevier here is ostensibly a duplicate of
the Complaint he filed in the District of South Carolina.
There, the district court summarily dismissed Sevier's
Complaint pursuant to § 1915)(e). Sevier v. Haley
et. al., Civil Action No. 3:16-665-TLW-SVH (D.S.C.).
This court should do the same.
seeks to compel North Dakota to recognize New Mexico marriage
ceremony with a computer or otherwise issue him a new
marriage license. Notably, he has not submitted any
documentation to support his claim that he had a valid
marriage ceremony with his computer in New Mexico.
New Mexico defines marriage as a civil contract “for
which the consent of the contracting parties, capable in law
of contracting, is essential, ” see N.M. Stat.
Ann. § 40-1-1 (1915), Sevier's factual allegations
concerning his marriage ceremony fail to lead to a plausible
legal conclusion that he is married to an inanimate object in
New Mexico. See Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009); Bell Atlantic Corp. v Twombly, 550
U.S. 544, 555 (2007). In other words, his Complaint is devoid
of any cognizable claims.
Sevier's claims are patently frivolous and should be
dismissed sua sponte before services of process is
effected. Key v. Does, 217 F.Supp.3d 100, 1007 (E.D.
CONCLUSION AND RECOMMENDATION
undersigned RECOMMENDS that the court
DISMISS the above-captioned action without
prejudice and ...