United States District Court, N.D. New York
PLAINTIFF: LIQIANG WEI, Pro se
DEFENDANTS: NONE DAVID E. PEEBLES
ORDER, REPORT, AND RECOMMENDATION
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
se plaintiff Liqiang Wei has commenced this action
against three individuals identified as professors employed
at different universities, a website, a journal publication,
and a foundation alleging that the individuals stole his
scientific research and that the journal published an article
written based on that research. Accompanying plaintiff's
complaint is a motion to proceed in the action in forma
pauperis ("IFP"). Both the complaint and IFP
application have been forwarded to me for review. For the
reasons set forth below, plaintiff's IFP motion is
granted, but I recommend that his complaint be dismissed with
leave to replead.
filed his complaint in this action and requested to proceed
without prepayment of the filing fees on or about June 1,
2018. Dkt. Nos. 1, 2. Named as defendants are the following:
(1) Roald Hoffmann, a professor at Cornell University; (2)
International Journal of Quantum Chemistry; (3)
National Science Foundation; (4) arXiv,
http://www.arxiv.org; (5) Dong-Kyun Seo, a professor
at Arizona State University; and (6) Garegin Papoian, a
professor at the University of Maryland. Dkt. No. 1-1 at 2-3.
complaint is drafted in narrative form and is generally not a
model of clarity. See generally Dkt. No. 1-1.
Liberally construed, he alleges that the individual
defendants, and in particular defendant Hoffmann,
misappropriated his research concerning general mechanical
perturbation theory and that defendants Hoffmann, Seo, and
Papoian authored an article using plaintiff's research,
which was ultimately published in International Journal
of Quantum Chemistry. Id. at 2. It appears
plaintiff alleges that he wrote defendant Hoffmann a letter
in September 1998, applying for a post-doctoral fellowship
with defendant Hoffmann at Cornell University, and in that
letter, plaintiff explained his scientific theory that was
ultimately stolen by the defendants. Id. Plaintiff
seeks injunctive and monetary relief. Id. at 9, 41.
Plaintiff's IFP Application
civil action is commenced in a federal district court, the
statutory filing fee, currently set at $400, must ordinarily
be paid. 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed IFP if it determines
that he is unable to pay the required filing fee. 28 U.S.C.
§ 1915(a)(1). In this instance, because I conclude that
plaintiff meets the requirements for IFP status, his
application for leave to proceed without prepayment of fees
I have found that plaintiff meets the financial criteria for
commencing this case IFP, I must next consider the
sufficiency of the claims set forth in his complaint in light
of 28 U.S.C. § 1915(e). Section 1915(e) directs that,
when a plaintiff seeks to proceed IFP, "the court shall
dismiss the case at any time if the court determines that . .
. the action . . . (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).
deciding whether a complaint states a colorable claim, a
court must extend a certain measure of deference in favor of
pro se litigants, Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and extreme caution
should be exercised in ordering sua sponte dismissal
of a pro se complaint before the adverse party has
been served and the parties have had an opportunity to
address the sufficiency of plaintiff's allegations,
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983). The court, however, also has an overarching obligation
to determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to
proceed. See, e.g., Fitzgerald v. First
East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d
Cir. 2000) (holding that a district court may sua
sponte dismiss a frivolous complaint, notwithstanding
the fact that the plaintiff paid the statutory filing fee).
"Legal frivolity . . . occurs where 'the claim is
based on an indisputably meritless legal theory [such as]
when either the claim lacks an arguable basis in law, or a
dispositive defense clearly exists on the face of the
complaint.'" Aguilar v. United States, Nos.
99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov.
8, 1999) (quoting Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also
Neitzke v. Williams, 490 U.S. 319, 325 (1989)
("[D]ismissal is ...