Gisi v. National Security Agency of the United States

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MIKEL PAUL GISI,
Plaintiff,
v.
NATIONAL SECURITY AGENCY OF THE
UNITED STATES,
Defendant.
Case No.: 3:26-cv-01752-AN
OPINION AND ORDER
Plaintiff Mikel Paul Gisi, who is self-represented and thus proceeding pro se, brings this complaint
against the National Security Agency of the United States. In addition to the complaint, plaintiff has also
filed an application to proceed without paying filing fees (i.e., in forma pauperis (“IFP”)) and a motion for
appointment of pro bono counsel. For the reasons stated below, the Court GRANTS plaintiff’s IFP
application, but finds that the complaint does not state a claim on which relief may be granted. The
complaint is therefore DISMISSED pursuant to 28 U.S.C. § 1915(e), with leave to amend, and the motion
for appointment of counsel is DENIED as moot. If plaintiff wishes to file an amended complaint correcting
the deficiencies identified in this Opinion and Order, he must do within thirty (30) days.
LEGAL STANDARD
District courts are authorized by statute to permit a party to commence litigation “without
prepayment of fees or security therefor” if that party submits an affidavit showing that they are “unable to
pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). When determining what, if any, filing fee
a plaintiff must pay, “‘the court may consider the plaintiff’s cash flow in the recent past, and the extent to
which the plaintiff has depleted his savings on nonessentials.’” Hymas v. U.S. Dep’t of the Interior, 73
F.4th 763, 768 (9th Cir. 2023) (quoting Alexander v. Carson Adult High Sch., 9 F.3d 1448, 1449 (9th Cir.
1993)).
In addition to permitting litigants to proceed without paying filing fees, Section 1915 also requires
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a court to dismiss a complaint on its own accord, even before service of process, if it determines that the
complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);
Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc), overruled on other grounds by Peralta v.
Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). First, 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). Second, a complaint fails to
state a claim for relief if it does not “contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted); see Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining
whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is
the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Finally, a
court must dismiss a complaint on immunity grounds once it “has sufficient information to make a
determination” that defendants are entitled to absolute or qualified immunity. Chavez v. Robinson, 817
F.3d 1162, 1167 (9th Cir. 2016).
In determining whether a pro se complaint lacks merit, courts must use “less stringent standards
than” those used for “formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal citations omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Further, “[u]nless it is
absolutely clear that no amendment can cure the defect,” a pro se litigant is “entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.” Garity v. APWU
National Labor Organization, 828 F.3d 848, 854 (9th Cir. 2016) (quoting Lucas v. Dep’t of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (per curiam)).
DISCUSSION
A. IFP Application
Plaintiff has satisfied the economic eligibility requirements of 28 U.S.C. § 1915 and his IFP
application is granted accordingly. See generally Appl. to Proceed IFP, ECF 2. However, as described
below, plaintiff’s complaint does not establish a legally coherent theory of liability and therefore must be
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dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
B. Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
Although the Court liberally construes plaintiff’s pro se complaint and holds it to a less stringent
standard than formal pleadings drafted by lawyers, plaintiff’s complaint must nevertheless be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.
Broadly, plaintiff alleges that he suffered “defamation of character, verbal abuse, threats, [and]
slander,” and that he was “called a liar.” Compl. at 4, 6. These vague assertions are purely conclusory and
amount to nothing more than “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft, 556
U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Plaintiff fails to allege basic
facts detailing his specific grievances against defendant. For example, he does not describe the events or
circumstances surrounding the alleged defamation and slander, identify who made the statements, or
explain how defendant violated any law.
Furthermore, plaintiff fails to establish a basis for federal subject matter jurisdiction. Federal courts
are courts of limited jurisdiction, and plaintiff bears the burden of establishing that jurisdiction is proper.
See Bankers Life & Cas. Co. v. Crofton, No. 1:13-cv-1121-CL, 2013 WL 6190040, at *1 (D. Or. Nov. 26,
2013). Subject matter jurisdiction requires either federal question jurisdiction under 28 U.S.C. § 1331—
where the claim arises under the Constitution, laws, or treaties of the United States—or diversity jurisdiction
under 28 U.S.C. § 1332, which requires complete diversity of citizenship between the parties and an amount
in controversy exceeding $75,000. Id. Plaintiff has alleged no facts supporting federal question or diversity
jurisdiction.
Altogether, plaintiff’s allegations are far too speculative and conclusory to state a plausible claim
for relief against defendant. Thus, the complaint must be dismissed under 28 U.S.C. § 1915(e)(2)(B).
C. Leave to Amend
Although plaintiff has not stated a sufficient claim at this time, it is not clear that it would be
impossible for plaintiff to correct the identified deficiencies on amendment. Therefore, plaintiff is granted
leave to amend. If plaintiff chooses to file an amended complaint, he is advised to first review the District
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of Oregon’s website, which contains a webpage titled “Information about Representing Yourself in Court,”
available to the public at https://ord.uscourts.gov/index.php/representing-yourself/information-about-
representing-yourself.
D. Motion for Appointment of Counsel
Because this Opinion and Order dismisses plaintiff’s complaint in its entirety, plaintiff’s motion
for appointment of counsel is denied as moot. If plaintiff amends his complaint, he may renew his motion
for appointment of counsel.
CONCLUSION
For the reasons stated herein, the Count GRANTS plaintiff’s application to proceed IFP, ECF 2.
The Court DISMISSES plaintiff’s complaint, ECF 1, for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e), and DENIES as moot plaintiff’s motion for appointment of pro bono counsel, ECF 3. Dismissal
is with leave to amend. Any amended complaint must be filed within thirty (30) days of the date of this
Opinion and Order. If plaintiff does not file an amended complaint within thirty (30) days, judgment will
be entered without further notice.
IT IS SO ORDERED.
DATED this 9th day of October, 2026.
______________________
Adrienne Nelson
United States District Judge
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