UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

MICHAEL CERVENKA, ) ) Plaintiff, ) ) v. ) No. 4:22-CV-207-PLC ) U.S. GOVERNMENT, ) ) Defendant. )

MEMORANDUM AND ORDER

This matter is before the Court upon plaintiff Michael Cervanka’s submission of a civil complaint and a motion for leave to proceed in forma pauperis. Upon consideration of the motion and the financial information provided therein, the Court finds that plaintiff is unable to pay the filing fee. The motion will therefore be granted. Additionally, for the reasons explained below, the Court will dismiss the complaint because it is frivolous and fails to state a claim upon which relief may be granted. Legal Standard on Initial Review This Court is required to review a complaint filed in forma pauperis, and must dismiss it upon the determination that, inter alia, it is frivolous or fails to state a claim upon which relief may be granted. See

(e)(2)(B). An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams,

(1989). The term “‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.”

While federal courts should not dismiss an action commenced in forma pauperis if the facts alleged are merely unlikely, the court can properly dismiss such an action if the allegations in the complaint are found to be “clearly baseless.” Denton v. Hernandez,

(1992) (citing Neitzke,

). Allegations are clearly baseless if they are “fanciful,” “fantastic,” or “delusional,” or if they “rise to the level of the irrational or the wholly incredible.”

An action fails to state a claim upon which relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.”

Bell Atlantic Corp. v. Twombly,

(2007). The Complaint Plaintiff prepared the complaint on a Court-provided form, as required. He named “U.S. Government” as the defendant. (ECF No. 1 at 1, 2). Invoking this Court’s federal question jurisdiction, he writes: “cruel and unusual punishment.” Id. at 3. In setting forth his statement of claim, plaintiff alleges he has been “intentionally and without my knowledge or consent, rendered sterile, and “subjected to pain and suffering by a Government technique using L.I.D.A.R.” Id. at 5. Plaintiff identifies L.I.D.A.R. as “an investigative tool used by investigators of the Federal Government coupled with active P.F.T. scan technology,” which over time causes brain damage. Id. at 8. Plaintiff alleges that “they” have hacked his phone and “planted

something on it, incriminating possibly, but it rendered my phone unusable.” Id. at 5. He alleges that “they” have given him “sterility drugs in the form of coating they applied to my prescription medicine, from a homeless outreach organization,” and have tampered with his witnesses, had him attacked by an undercover police officer, tampered with his medication, and placed carcinogens in his food and drink. Id. at 6-7. He claims the foregoing has caused numerous health problems, including brain damage and cancer. He seeks $750,000 in damages. On February 15, 2022, plaintiff filed a civil complaint pro se and in forma pauperis against “U.S. Government” asserting essentially the same allegations he asserts here. See Cervanka v. U.S. Government, No. 4:22-CV-190-PLC (E.D. Mo. 2022). On February 17, 2022, the action was dismissed pursuant to

(e)(2). Discussion Having reviewed and liberally construed the complaint, the Court can discern no plausible claim for relief. While this Court must liberally construe pro se filings, this Court will not construct claims or assume facts that plaintiff has not alleged. See Stone v. Harry,

(8th Cir. 2004). Additionally, plaintiff's allegations do not appear grounded in reality, and in fact “rise to the level of the irrational or wholly incredible.” Denton, 504 USS. at 33. The Court therefore finds that plaintiff's allegations are clearly baseless as defined in Denton. The Court will therefore dismiss this action at this time as frivolous and for failure to state a claim upon which relief may be granted. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Dated this 22" day of February, 2022.

UNITED STATES DISTRICT JUDGE