Opinion
Civil Action 22-489
05-11-2022
BENJAMIN BOSTON, Plaintiff, v. INTERNAL REVENUE SERVICE; GDOL/UNEMPLOYMENT INSURANCE; ACE FLAIR ACCOUNT-METABANK; and SNAP BENEFITS, Defendants.
ECF No. 3
Joy Flowers Conti District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons stated herein, it is respectfully recommended that this case be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), as being frivolous and malicious, and for failure to state a claim for which relief can be granted.
II. REPORT
A. Factual and Procedural Background
Plaintiff Benjamin Boston (“Plaintiff”) is an inmate at the DeKalb County Jail in Decatur, Georgia. Proceeding pro se, Plaintiff submitted a complaint on March 24, 2022, along with a motion for leave to proceed in forma pauperis (“IFP”). ECF No. 1. This Court granted IFP status on May 10, 2022. ECF No. 2. The Complaint was filed the same day. ECF No. 3. In the Complaint, Plaintiff alleges that a non-party individual named Tayray Monroe (“Monroe”) stole his wallet, which contained his bank card, social security card, and various other cards and information. Id. at 3-6. Monroe allegedly used the information in the wallet to steal from or defraud Plaintiff of thousands of dollars. Id. at 4-6.
While the allegations in the Complaint are difficult to follow, it appears that Plaintiff contacted some or all of the Defendants in order to report the theft. Defendants either did nothing, or told Plaintiff to contact local police, who in turn failed to arrest Monroe. Id. at 3-7. Plaintiff alleges that this failure violated federal law, as well as his rights under various amendments to the United States Constitution. Id.
The caption on the first page of the Complaint reads “IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA.” Id. at 1. The Complaint does not contain any allegation or reference to a party or conduct in the Western District of Pennsylvania. ECF No. 3.
While the Complaint is captioned on the first page as a “Civil Right Complaint Pursuant to 42 U.S.C. § 1983, ” see id. at 1, Plaintiff explicitly states that he seeks a writ of mandamus pursuant to 28 U.S.C. § 1361 in order to compel Defendants to investigate and prosecute Monroe, and to return his missing money. Id. at 4 and 8.
Plaintiff has filed several lawsuits regarding similar facts in the Northern District of Georgia. See C.A. Nos. 21-3989; 21-4168; 21-5080; and 22-636 (N.D.Ga.). Why he has chosen to file in the Western District of Pennsylvania is unclear.
B. Applicable Legal Standard
28 U.S.C.§ 1915 requires the federal courts to review complaints filed by persons that are proceeding IFP 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). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). The standard for reviewing a complaint under this section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also Banks v. Mozingo, No. 08-004, 2009 WL 497572, at *6 (W.D. Pa. Feb. 26, 2009) (Cercone, J.).
Under Rule 12(b)(6), dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “‘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 Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). “‘Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.'” Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).
C. Legal Analysis
Plaintiff's Complaint suffers from a variety of defects that warrant dismissal. Two of these defects will be discussed below.
First, the mandamus statute under which Plaintiff proceeds states that
[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.28 U.S.C. § 1361. However, no named Defendant, save Defendant Internal Revenue Service, is plausibly pleaded to be an “an officer or employee of the United States or any agency thereof[.]” Therefore, Defendants GDOL/Unemployment Insurance; Ace Flair Account-Metabank; and SNAP Benefits should be dismissed for that reason alone. Weaver v. Wilcox, 650 F.2d 22, 25 (3d Cir. 1981) (“Section 1361, by its terms, applies only to writs issued against an ‘officer or employee of the United States.'”).
Second, when Defendant Internal Revenue Service is included in the analysis, Plaintiff's claims should be dismissed for lack of venue. Pursuant to the applicable venue statute:
A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action.28 U.S.C. § 1391(e).
Here, no party is alleged to reside in the Western District of Pennsylvania, and no event giving rise to the Complaint is alleged to have occurred in the Western District of Pennsylvania. ECF No. 3 at 3-4. While it is unclear why Plaintiff chose to bring this case in the Western District of Pennsylvania, it is apparent that venue is improper in this Court.
In the event that a case is filed in an incorrect district, the district courts are permitted to transfer it to the district where venue would be proper. 28 U.S.C. § 1406(a). Non-precedential opinions from the Court of Appeals for the Third Circuit are somewhat divergent regarding the ability of district courts to transfer venue sua sponte. See, e.g., Decker v. Dyson, 165 F. App'x. 951, 954 n.3 (3d Cir. 2006) (“Under 28 U.S.C. § 1406(a), a district court, upon a motion or sua sponte, may transfer a case to a court of proper jurisdiction when such a transfer is in the interest of justice”). See also Lafferty v. St. Riel, 495 F.3d 72, 75 and n.3 (3d Cir. 2007), as amended (July 19, 2007), as amended (Nov. 23, 2007) (“The decision to transfer [sua sponte] under § 1406(a) thus turns on a question of fact, subject to the District Court's discretion. We do not disturb it here.”). Cf. Fiorani v. Chrysler Grp., 510 Fed.Appx. 109, 111 (3d Cir. 2013) (holding that a district court's sua sponte dismissal for lack of venue was erroneous because it should have considered transfer under § 1406(a)). But see Henderson v. Keisling, 341 Fed.Appx. 769 (3d Cir. 2009) (vacating district court's sua sponte transfer for improper venue). This Court has raised the issue of venue sua sponte. See, e.g., Nation of Islam v. Pennsylvania Dep't of Corr., No. 12-82, 2012 WL 529546, at *2 (W.D. Pa. Feb. 1, 2012), report and recommendation adopted, No. 2012 WL 529238 (W.D. Pa. Feb. 17, 2012).
Having considered all of the factors governing venue, see, e.g., Calkins v. Dollarland, Inc., 117 F.Supp.2d 421, 428 (D.N.J. 2000) (setting forth the factors to consider for transferring venue in the context of 28 U.S.C. § 1404), it is apparent that the interests of justice do not support transfer. Instead, Plaintiff's claims should be dismissed. Specifically, the relief that Plaintiff seeks - an order compelling the initiation of criminal proceedings, ECF No. 3 at 4 - is unavailable in any federal court. Only the United States Attorney may file charges in federal court. See, e.g., United States v. Panza, 381 F.Supp. 1133, 1133-34 (W.D. Pa. 1974).
This provides an alternative basis for dismissal of Plaintiff's suit.
III. CONCLUSION
For the reasons stated herein it is respectfully recommended that this case be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), as being frivolous and malicious, and for failure to state a claim for which relief can be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.