Opinion
2:19-CV-00134-CRE
03-01-2019
BALDWIN TOWER, Plaintiff, v. WILLIAM JAMES ACKERMAN, Defendant
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that Defendant William James Ackerman's motion for leave to proceed informa pauperis ("IFP") (ECF No. 3) be granted and this case be remanded pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction (ECF No. 4).
II. REPORT
Defendant removed the present lawsuit from Pennsylvania magisterial district court on February 6, 2019. (ECF No. 1). The case was closed, as Defendant did not submit a filing fee or the forms required to proceed IFP. (ECF No. 2). Thereafter, Defendant submitted the proper forms to proceed IFP and further submitted exhibits in support of his notice of removal. (ECF Nos. 3 and 4).
Ackerman is not a stranger to filing frivolous lawsuits in federal court. Over the last three-plus years, he has filed no less than nine separate lawsuits - all dismissed as frivolous. See Ackerman v. Mercy Behavior Health, 2:12-cv-01807-TFM (W.D. Pa. Dec. 11, 2012); Ackerman v. Mental Health Court, 2:13-cv-00173-TFM (W.D. Pa. Feb. 1, 2013); Ackerman and Sons of Mental Illness v. Western Psychiatric Institute Clinic, 2:13-cv-00388-TFM (W.D. Pa. March 18, 2013); Ackerman v. Office of Behavior Health, 2:13-cv-00417-TFM (W.D. Pa. March 21, 2013); Ackerman v. Mercy Behavior Health, 2:14-cv-1199-TFM (W.D. Pa. Sept. 4, 2014); Ackerman v. Mercy Behavior Health, 2:15-cv-00304-TFM (W.D. Pa. March 4, 2015); Ackerman v. Office of Behavioral Health, 2:15-cv-1326-TFM (W.D. Pa. Oct. 13, 2015); Ackerman v. Herman, 2:16-cv-00082-TFM (W.D. Pa. Jan. 19, 2016); Ackerman and the Sons of Mental Illness v. Eruns, et al., 2:16-cv-295-TFM (W.D. Pa. March 15, 2016); Ackerman v. Dallas, et al., 2:18-cv-1169-NBF-CRE (W.D. Pa. Sept. 4, 2018). See also Ackerman v. Mercy Behavior Health, No. 14-4036, 2015 WL 4709574 (3d Cir. Aug. 7, 2015); Ackerman v. Mercy Behavior Health, No. 15-1822, 2015 WL 3960893 (3d Cir. June 30, 2015). The court notes that it is not powerless against Ackerman's flurry of frivolous filings. The court possesses the inherent authority to limit a frivolous filer's opportunities to burden the court system with meritless filings by requiring that the filer obtain prior approval of the Court before lodging any new complaints. Chipps v. U.S.D.C. for the M.D. of Pa., 882 F.2d 72, 73 (3d Cir. 1989); Gagliardi v. McWilliams, 834 F.2d 81 (3d Cir. 1987); In re Oliver, 682 F.2d 443 (3d Cir. 1982). While the undersigned does not make that recommendation at this point, should the court receive more frivolous filings from Ackerman, the court will issue a show cause order as to why the court should not sanction Ackerman for abusing the judicial process by limiting his future filings. --------
a. Motion for Leave to Proceed In Forma Pauperis
While 28 U.S.C. § 1915 authorizes litigants like Plaintiff to proceed IFP, such status is a privilege which may be denied when abused. After granting IFP status, the Court must dismiss the case sua sponte if: (i) the allegation of poverty is untrue; (ii) the action is frivolous or malicious; (iii) the complaint fails to state a claim upon which relief may be granted; or (iv) the complaint seeks money damages from a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2).
In determining the sufficiency of a pro se filing, the Court must be mindful to construe it liberally in favor of the pro se party. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint [or removal] and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the" pro se party. Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In performing a court's mandated function of sua sponte reviewing a complaint under 28 U.S.C. § 1915(e) to determine if it fails to state a claim upon which relief can be granted, a federal district court applies the same standard as applied to motions to dismiss under Federal Rule of Civil Procedure 12. See, e.g., Powell v. Hoover, 956 F. Supp. 565, 568 (M.D. Pa. 1997).
The court has reviewed Defendant's application to proceed IFP and finds that he has adequately showed that he is unable to pay the costs of these proceedings, including the filing fee. Deutsch v. United States, 67 F.3d 1080, 1084 n. 5 (3d Cir. 1995) ("leave to proceed in forma pauperis is based on a showing of indigence."). Therefore, Defendant's motion to proceed IFP is granted and his notice of removal will be reviewed under the appropriate standard.
b. Notice of Removal
The removal documents submitted by Defendant appears to indicate that he is attempting to remove a landlord-tenant dispute initiated by Defendant's landlord, Baldwin Tower, for possession of the premises. See Commonwealth of Pennsylvania Notice of Judgment/Transcript, Docket No. MJ-05218-LT-0000036-2019 (ECF No. 4 at 1). Baldwin Towers initiated the action for possession of the premises on January 31, 2019 and judgment was entered against Defendant on February 11, 2019. Id.
Removal to federal court from state court is only proper "when the district court to which removal is sought would have original jurisdiction over the action." Groves v. Wilson, 404 Fed. Appx. 705, 707 (3d Cir. 2010) (unpublished) (citing 28 U.S.C. § 1441); Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010). A federal district court does not have original jurisdiction to hear landlord-tenant disputes. Id. While pro se litigants should be afforded leave to amend their pleadings, to do so here would be futile as this court lacks jurisdiction. Thus, it is procedurally inappropriate to remove this case to federal court and it is respectfully recommended that the claims be remanded to state court. Id.
c. Defendant's purported counterclaims
In his notice of removal, Defendant attached a fifteen-page, single-spaced diatribe which essentially argues that the Department of Housing and Urban Development's smoking policy is unconstitutional. This court has no jurisdiction to hear counterclaims when removal is improper. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12 (1983) (the well-pleaded complaint rule affirms that removal is appropriate only where there is a federal question presented on the face of the plaintiff's properly pleaded complaint); Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (a counterclaim brought by the defendant cannot serve as a basis for original jurisdiction). Here, removal is procedurally inappropriate as Plaintiff's complaint deals exclusively with state law, therefore this court has no jurisdiction to hear any of Defendant's purported counterclaims and it is respectfully recommended that Defendant's counterclaims be dismissed for lack of jurisdiction.
III. CONCLUSION
For the reasons set forth, it is respectfully recommended that this case be remanded pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction.
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, and because Defendant is a non-electronically registered party, he has until March 20, 2019 to file objections to this report and recommendation. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: March 1, 2019.
Respectfully submitted,
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge cc: Honorable Nora Barry Fischer
United States District Judge
via electronic filing
WILLIAM JAMES ACKERMAN
200 Knoedler Road
Apartment 912
Pittsburgh, PA 15236