Opinion
Case No. CIV-20-350-D
05-13-2020
R. WAYNE JOHNSON, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a prisoner appearing pro se, has filed an amended civil rights complaint. (Amended Complaint). (ECF No. 18). Chief United States District Judge Timothy D. DeGiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the Amended Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a). Based on that review, it is recommended that the Court DISMISS the Amended Complaint.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee and each case in which a plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b).
II. PROCEDURAL BACKGROUND
Mr. Johnson initiated this action in Cleveland County District Court, State of Oklahoma, by filing a document entitled "Original Claim for Restitution." (ECF Nos. 1-2 & 1-3). Subsequently, Plaintiff filed 2 documents entitled "Amended Claim for Restitution" and 3 documents entitled "Original Claim for Restitution." (ECF Nos. 1-4 through 1-8). In the state court action, Mr. Johnson named three federal agencies and six federal judges as defendants (the Federal Defendants). See ECF Nos. 1-2 through 1-8. Collectively, the Federal Defendants removed the action to this Court. (ECF No. 1). Because Mr. Johnson's multiple "claims" filed in state court did not satisfy the pleading requirements as set forth in Fed. R. Civ. P. 8(a), the undersigned ordered Plaintiff to file an Amended Complaint, which would serve as the controlling document in this case. (ECF No. 12). Mr. Johnson complied. (ECF No. 18).
III. STANDARD FOR DISMISSAL
Pursuant to 28 U.S.C. § 1915A(b)(1), dismissal of a complaint is proper where the action is frivolous or malicious or fails to state a claim upon which relief may be granted. Generally, the Court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to the plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The Court must liberally construe Plaintiff's pro se complaint. Id. at 1218. But a court may dismiss a claim as factually frivolous when the facts asserted are " 'clearly baseless,' a category encompassing allegations that are 'fanciful,' 'fantastic,' and 'delusional.' " Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal quotations and citations omitted). In other words, "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." Id. at 33. Determining whether an action is "frivolous" is left to the discretion of the court screening the complaint. Id.
Denton interpreted "frivolousness" in the context of an action brought by a prisoner proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. But there is nothing in the case law that suggests the definition of "factually frivolous" is different for cases screened pursuant to 28 U.S.C. § 1915A that is applicable to this case and all other cases brought by prisoners seeking redress from a governmental entity or officer or employee of a governmental entity. The Supreme Court has recognized that "[r]elated provisions reflect a congressional focus upon trial court dismissal as an important separate element of the statutory scheme. See § 1915A (requiring a district court to screen certain prisoner complaints "as soon as practicable" and to dismiss any portion of the complaint that "is frivolous, malicious, or fails to state a claim upon which relief may be granted"); 42 U.S.C. § 1997e(c)(1) (similar)." Coleman v. Tollefson, 575 U.S. 1759, 1764 (2015).
IV. DISMISSAL OF THE AMENDED COMPLAINT
Mr. Johnson's Amended Complaint is rambling and incoherent. In the style of the Amended Complaint, as Defendants, Plaintiff has named "Doe's 1-15," "U.S.P. Off (Amarillo)" and "U.S.P. Off L. Rock Ark." (ECF No. 18:1). In the body of the Amended Complaint, Mr. Johnson makes clear that he is suing individual "U.S. Postal Persons" in both Amarillo and Little Rock and he seeks discovery and will utilize the Freedom of Information Act to "get names." (ECF No. 18:3, 5). He also indicates that additional defendants exist, but states that he has no paper on which to write their names. (ECF No. 18:3, 5). The nature of the claims set forth in the Amended Complaint is unclear. Mr. Johnson states:
Due to having Read last motion to enforce 18 USC 3061(2) and mail crimes HATER Schuster showed HATER WARDEN HE SENT MAJOR VILLIGAS-Capt. Pacheo Lt. GURROLLA-Sgt Anderson (YOUNG-) CRUZ-Allen
to G POD so to EXTORT 227-226's ALL PROPERTY THEY HAD (LEGAL STAYS OPENED!! To Read..(ECF No. 18:2).
All can do for now get this to Article 3 JUDGE issue me protection my life is in Jeopardy Due to Legal Work (U.S. Atty FILE T.R.O 18 US1514 ASAP (Arrest Attmp MURDER
"Mindful that pro se actions are held to a less stringent standard of review and that sua sponte dismissals are generally disfavored by the courts, we nonetheless allow a complaint to be dismissed [as frivolous] if the plaintiff cannot make a rational argument on the law and facts in support of her claim." Triplett v. Triplett, 166 F. App'x 338, 340, 2006 WL 182060, at *2 (10th Cir. 2006) (citation omitted). Here, the Court cannot discern any rational argument set forth by Mr. Johnson in his Amended Complaint. He has certainly not alleged a violation of his constitutional rights or the jurisdictional basis of the Amended Complaint. These failures render the Amended Complaint legally deficient. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining "that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated."). Because Mr. Johnson's arguments "lack[ ] an arguable basis either in law or in fact," the Court should dismiss the Amended Complaint as frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (an argument, like a complaint, "is frivolous where it lacks an arguable basis either in law or in fact").
V. MISCELLANOUS MOTIONS
Also pending are: (1) a Motion for Leave to Proceed Without Local Counsel filed by John Board, David Jones, Nancy Tanner, and Brian Thomas and (2) four miscellaneous motions filed by Mr. Johnson. (ECF Nos. 11, 13, 14, 16, 17). In the Amended Complaint, Mr. Johnson does not name Mr. Board, Mr. Jones, Ms. Tanner, or Brian Thomas as Defendants. See ECF No. 18. As a result, the Court should deny ECF No. 11 as moot. Furthermore, if the Court adopts the foregoing recommendation, the Court should deny Plaintiff's remaining motions (ECF Nos. 13, 14, 16, and 17) as moot.
VI. FILING FEE
To date, a filing fee has not been paid. Although Mr. Johnson filed the state court action in forma pauperis, the Federal Defendants removed the action to this Court. See ECF No. 1. In ECF No. 5, the Federal Defendants advised the Court that Plaintiff should be barred from proceeding in forma pauperis in federal court, suggesting that he is obligated to pay this Court's full filing fee because he has been previously barred under the "three strikes" rule of 28 U.S.C. § 1915(g). See ECF No. 5; see supra. But Mr. Johnson, as the non-removing party, is not obligated to pay any filing fee in this case. See Woodson v. McCollum, 875 F.3d 1304, 1305 (10th Cir. 2017) ("State-court plaintiffs whose cases are removed to federal court have no obligation to pay a filing fee."). Instead, this duty is incumbent on the removing party, which in this case would be the Federal Defendants. See id. (noting that "it was not [the plaintiff] who sought the federal forum. He did not choose to burden the federal courts; the defendants did."). However, since Mr. Johnson only names two of the original nine Federal Defendants in his Amended Complaint and those defendants, are federal agencies they are exempt from paying any filing fee. See Guide to Judiciary Policy, Vol. 4, Ch. 6 § 610.60.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should DISMISS Plaintiff's Amended Complaint (ECF No. 18) without prejudice, as frivolous.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by June 1, 2020. See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned magistrate judge in the captioned matter.
ENTERED on May 13, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE