Opinion
Civil Action No. 2:18-cv-00306
04-09-2018
ROGER WILSON, Plaintiff, v. CHRIS EYSTER, PAUL BOAS, Defendants
United States District Judge Nora Barry Fischer
REPORT AND RECOMMENDATION
I. RECOMMENDATION
The Court respectfully recommends that Plaintiff's Complaint (ECF No. 8) filed on April 2, 2018, be sua sponte dismissed with prejudice prior to service under 28 U.S.C. §1915(e)(2) because the action is frivolous.
II. REPORT
A. Procedural Background
Within a four-day span, Plaintiff, Roger Wilson, filed ten law suits, pro se, seeking Leave to Proceed in forma pauperis. He voluntarily withdrew four of the cases, Wilson v. Federal A/G Maryland et al., 2:18-cv-00304; Wilson v. Memphis F.C.I. et al., 2:18-cv-00312; Wilson v. FCI Cumberland, 2:18-cv-00313; and Wilson v. FCI Gilmer, et al., 2:18-cv-00315 for "lack of venue". The six remaining cases filed during that time period are: Wilson v. Delta Airlines, et al., 2:18-cv-00305; Wilson v. Eyster et al., 2:18-cv-00306; Wilson v. McKeesport Police Dept., el al, 2:18-cv-00307; Wilson v. U.S. Gov't/Federal A/g et al., 2:18-cv-00308; Wilson v. Healey, 2:18-cv-00311; and Wilson v. United States of America et al., 2:18-cv-00314.
Also pending with the court is Wilson v. U.S. Gov't, 2:17-01467, which was filed on November 13, 2017, for which Wilson paid the filing fee. The court also notes that Wilson also filed Wilson v. United States and Office of Atty General, 2:17-cv-00301 on March 8, 2017, for which he paid the filing fee. This case was dismissed pursuant to FRCP 12(b)(1), with prejudice, as amendment would be futile. Wilson filed a notice appealing this decision to the Third Circuit Court of Appeals. (Id. at ECF No. 29).
B. Legal Standard
Plaintiff is proceeding pro se and as such, he is entitled to liberal construction of his submissions in federal court. This means that the Court must liberally construe the factual allegations of the complaint because pro se pleadings, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erikson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, the court should "'apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'" Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). However, pro se litigants are not free to ignore the Federal Rules of Civil Procedure. Pruden v. Long, Civ. A. No. 3:CV-06-2007, 2006 WL 3325439, *1 (M.D. Pa. Oct. 24, 2006).
Pursuant to 28 U.S.C. §1915(a), Plaintiff requested and has been granted leave to proceed in forma pauperis. Thus, his allegations must be reviewed in accordance with the directives provided in 28 U.S.C. §1915(e). Section 1915(e)(2), as amended, requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action 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. 28 U.S.C. §1915(e)(2)(B). "[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); Hawkins v. Coleman Hall, C.C.F., No. 11-3467, 2011 WL 5970977, at *2 (3d Cir. Nov. 30, 2011) ("An appeal is frivolous when it lacks an arguable basis either in law or fact." (citing Neitzke, supra). Thus, under §1915(e)(2)(B), courts are "authorized to dismiss a claim as frivolous where 'it is based on an indisputable meritless legal theory or where the factual contentions are clearly baseless.'" O'Neal v. Remus, No. 09-14661, 2010 WL 1463011, at *1 (E.D. Mich. Mar. 17, 2010) (quoting Price v. Heyrman, No. 06-C-632, 2007 WL 188971, at *1 (E.D. Wis. Jan. 22, 2007) (citing Neitzke, 490 U.S. at 327)).
Although the Third Circuit has not ruled on the issue, several district courts in the Third Circuit have considered the question of whether this revised in forma pauperis statute applies only to prisoners and have concluded that it does not. Leatherman v. Obama, C.A. No. 12-1486, 2012 WL 5398912 (W.D. Pa. Nove. 2, 2012) (Fisher, J.), adopting R&R 2012 WL 5398856 (W.D. Pa. October 22, 2012); Harrison v. Shapiro, No, 97-2133, 1997 WL 197950, at * 1 (E.D. Pa.1997); Jones v. North Atlantic Treaty Organization, No. 98-1185, 1998 WL 136511, at *1 n. 1 (E.D. Pa. 1998); McAllen v. Attic Away From Home, No. 00-941, 2000 WL 1752618, at *2 n. 7 (D. Del. 2000). Each of these courts has found the mention of the word "prisoner" to be a typographical error, and that the Congress meant the statute to read "person." I find this reasoning to be persuasive. See also, Anyanwutaku v. Moore, 151 F.3d 1053 (D.C. Cir.1998); Mitchell v. Farcass, 112 F.3d 1483, 1484 (11th Cir.1997); Powell v. Hoover, 956 F.Supp. 564, 568 (M.D. Pa. 1997).
Dismissal under Section 1915(e)(2) is "often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering [frivolous] complaints[,]" Neitzke, 490 U.S. at 324, or complaints which fail to state a claim on which relief may be granted.
In determining whether a complaint fails to state a claim upon which relief may be granted for purposes of Section 1915(e)(2)(B), courts apply the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 F. App'x 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The United States Court of Appeals for the Third Circuit has expounded on this standard in light of its decision in Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) (construing Twombly in a civil rights context), and the Supreme Court's decision in Iqbal:
After Iqbal, it is clear that conclusory or "bare-bones" allegations will no longer survive a motion to dismiss: "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a plaintiff must show that the allegations of his or her complaints are plausible. See Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n. 3.Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In making this determination, the court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). "To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and §1915([e]) both counsel dismissal." Neitzke, 490 U.S. at 328 (footnote omitted).
C. Plaintiff's claims
Presently before the Court is Wilson v. Eyster et al., 2:18-cv-00306, which the court notes is far from a model of clarity as it lacks specificity in its detail and relief sought. Wilson is pursuing claims for "Slavery 18 USC 1589" and "18 U.S.C. 1708 Theft by Deception." (ECF No. 8, p. 4). Plaintiff's claims are based upon his former attorney-client relationship with each defendant.
Plaintiff alleges, in toto:
Both atty's [sic] took his money, didn't do any work, when they knew he was innocence [sic] of the crimes he was charged with in 2006 & 2007, they enslaved him by selling him out when they had proof of innocence [sic]. Patents were stolen off him a list of them will be included, but Plaintiff is pressing charges for his patents. . . Plaintiff claims atty's [sic] robbed him & enslaved him.Id. at 5-6. This legal representation is the basis of Plaintiff's claims against Defendants. Plaintiff seeks "2 billion" in damages. (Id. at 5). Because of the early stage of this litigation, service on the Defendant has not yet been ordered or effectuated.
A summary of the history of this criminal case in which Defendants represented Plaintiff can be found at Wilson v. United States Government and Office of Attorney General, 2:17-cv-00301 at ECF 55 (W.D. Pa. March 8, 2017). Courts can consider documents outside the pleadings when considering the dismissal of an action. See Pa Protection and Advocacy, Inc., v. Houston, 136 F. Supp. 2d 353, 359 (E.D. Pa. 2001).
Plaintiff alleges that defendants violated 18 U.S.C. § 1589, which prohibits forced labor. A defendant violates this criminal statute if he "intends to cause a person in [his] employ to believe that if [he] does not continue to work, he will suffer the type of serious harm. . . that would compel someone in [his] circumstances to continue working to avoid that harm." Futterknecht v. Thurber, J.S.C., et al, 2015 WL 4603010 *4 (D. N.J. July 30 2015). "[T]he drafter's intent was to combat human trafficking." Id. A civil remedy is afforded to a victim of a criminal violation of the forced labor statute via 18 U.S.C. 1595(a); however, even assuming that Plaintiff's allegations are true, he has failed to allege any facts to support a claim that he was a victim of forced labor. Plaintiff has not alleged facts showing that he is the victim and that the defendants are the perpetrators of such a crime. His theory of relief appears to be based on his claim that his attorneys did not prove his innocence and "sold him out," presumably in a plea agreement.
Plaintiff's claim is based on an indisputably meritless legal theory and should therefore be dismissed, sua sponte, pursuant to 28 U.S.C. §1915(e)(2). Neitzke, 490 U.S. at 328. See also Heck v. Humphrey, 512 U.S. 477, 487 (1994) (when an inmate's successful §1983 action would necessarily imply that his sentence of conviction is invalid, the complaint must be dismissed unless the inmate can demonstrate that his conviction or sentence has already been reversed on appeal or called into question by a writ of habeas corpus). Therefore, the court recommends that the claim of forced labor be dismissed as frivolous, with prejudice, as it would be futile for Plaintiff to amend his claims. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Plaintiff also alleges that the Defendants are guilty of 18 U.S.C. 1708, which imposes criminal liability on:
Whoever steals, takes, or abstracts or by fraud or deception obtains, or attempts so to obtain, from or out of any mail . . . any article or thing contained therein or secretes embezzles or destroys any such letter. . . Shall be fined under this title or imprisoned not more than five years, or both.
Section 1708 expresses a criminal prohibition and does not provide a personal entitlement, it does not convey a private right of action. See Manning v. Haggerty, 2011 WL 4527818 *4 (M.D. Pa. September 28, 2011 2011) (collecting cases). This claim is likewise based on an indisputably meritless legal theory and should therefore be dismissed, sua sponte, pursuant to 28 U.S.C. §1915(e)(2). Therefore, the court recommends that the claim of forced labor be dismissed as frivolous, with prejudice, as it would be futile for Plaintiff to amend his claims. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Finally, to the extent Plaintiff is attempting to assert state law tort claims, the court recommends that supplemental jurisdiction be denied.
III. Conclusion
For the reasons set forth herein, it is respectfully recommended that the Complaint be dismissed with prejudice, as frivolous pursuant to the screening provisions of 28 U.S.C. 1915(e)(2).
The plaintiff is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed. R. Civ. P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by April 26, 2018. He is cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Dated this 9th day of April, 2018.
s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge cc: Honorable Nora Barry Fischer
(via CM/ECF electronic notification)
ROGER WILSON
516 Sinclair Street, Apt. 501
McKeesport, PA 15132
(via U.S. First Class mail)