Opinion
Civil Action No. 06-1283-MLB.
October 24, 2006
MEMORANDUM AND ORDER
Before the court is plaintiff's pro se complaint filed September 21, 2006 (Doc. 1). For the following reasons, the case is dismissed.
Defendant filed a motion to dismiss after this Memorandum and Order was signed (Doc. 5). The motion is now moot.
Background
Since 2002, plaintiff has filed 13 cases in this court, six of which have been filed in 2006. In each of the 2006 cases, including this case, he has been granted leave to proceed in forma pauperis. Plaintiff has sued the defendant in this case, Best Cabs, Inc., in three previous cases. The first case, Case No. 02-1392 was disposed of by summary judgment and the Court of Appeals affirmed in an Order and Judgment filed July 28, 2005 (Case No. 04-3293). The second case, Case No. 04-1259, was dismissed pursuant to 28 U.S.C. § 1915(e) for failure to state a claim and the Court of Appeals affirmed in an Order and Judgment filed October 12, 2005 (Case No. 05-3039). The third case, Case No. 04-1033 was voluntarily dismissed by plaintiff. Nonetheless, plaintiff's bizarre claims in Case No. 04-1033, provide background upon which to evaluate the claims made in this case.The Allegations In this Case
The following allegations are extracted from plaintiff's present complaint insofar as they relate to Best Cabs:
More than three years ago I filed a suit against Best Cab, Inc. after appeal that was ruled in favor of the defense. While that case was being litigated Best cab, as I claimed retaliated against the plaintiff for staying with the case. So I the plaintiff was once again forced to filed a second case against Best Cab Inc. for retaliation, that case never got pass scrutiny of the court. Once again after appeal that case ended in favor of the Defense. Case 1. was upheld back in August of 2005, the second case was also upheld in October of 2005 as well. It is my position as well as a fact in my pleading this pending case, that because all that Best Cab has done to me and given the fact that all matters went unresolved that it would be a wise choice to flee the State of Kansas. . . . Now if Best Cab had just answered the first complaint without any retaliation there would be no reason to fear, but in light of all that Best Cab has put me through I had to flee for my safety. I must make it clear that this is not a repeat claim but all together new one. . . . I can honestly say with great pain that Best Cab Ran me out of town. I believe that this was done in great part because I am a black man, I base this on many thing surrounding the past three years, but one thing stands out strongly, Best Cab owner said to me through their attorney that they would have settled if I were not representing myself but if I had a lawyer. Now what I really hear in statement was that they would have settled if I had a white lawyer, or even if myself were white. Best Cab is without a doubted a very raciest company and they clearly demonstrated that to me over the past three years. . . . And since all that they have done gone without vindication I honestly believe that after the Courts latest ruling that there would be more harassment. . . . The Courts made it's last ruling in October of 2005 and after I received that answer I fled right away in the month of November of 2005 without delay for fear. . . . My proof to this case rest in those two cases. If this courts needs to believe me it only need look there. I believe that Best Cabs Inc. pass conduct was no only to get me to drop the first case to also to drive to and my family out of Wichita, Kansas. . . .
(Emphasis in original).
Discussion Dismissal as Frivolous
In Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995), the court observed:
Section 1915(d) of Title 28 authorizes a district court to dismiss a forma pauperis case if the court is "satisfied that the action is frivolous or malicious." A complaint "is frivolous where it lacks an arguable basis either in fact or law," Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989).
This provision "accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. . . . Examples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar." Id. at 327-28, 109 S.Ct. at 1832-33. Under this provision "frivolousness is a decision entrusted to the discretion of the court entertaining the in forma pauperis petition" and "a § 1915(d) dismissal is properly reviewed for an abuse of that discretion." Denton v. Hernandez, 504 U.S. 25, 33-34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992).
Section 1915(d) was redesignated and amended in 1996 and is now § 1915(e)(2)(B). P.L. 104-134. The amended statute requires dismissal of a case which is frivolous or malicious, whether or not the filing fee has been paid. Fogle v. Pierson, 435 F.3d 1252, 1257-58 (10th Cir. 2006).
The vast majority of published decisions dealing with 28 U.S.C. § 1915 do not distinguish between the words "frivolous or malicious," even though the statute uses them in the disjunctive. One of the few cases which does make a distinction is Hill v. Estelle, 423 F. Supp. 690 (S.D. Tex. 1976) where the court found multiple suits making substantially identical previously-litigated claims to be malicious. Id. at 695.
Even when the factual allegations of plaintiff's complaint are taken to the outer limits of liberal construction, it is plain that they are frivolous. Plaintiff contends that Best Cabs' successful defense of his two prior lawsuits forced him to flee to Texas. Such a claim is factually frivolous because it rises to the level of the irrational or the wholly incredible. Best Cabs had every right to defend itself. The claim is also legally frivolous because it is impossible for plaintiff to make a rational argument on the law and facts to support such a claim.Wiggins v. New Mexico Supreme Court, 664 F.2d 812, 815 (10th Cir. 1981). Going further, even if Best Cabs' lawyer made the statement attributed to him, plaintiff's "take" on the statement as having racial motivation is pure speculation which would not be admissible under Fed.R.Evid. 701(a) (assuming for purposes of discussion, that Best Cabs could be held responsible for the statement). Finally, plaintiff's "belief" that Best Cabs would harass him after the last Court of Appeals' ruling is irrelevant because plaintiff does not allege that any harassment actually occurred. Accordingly, the case is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
28 U.S.C. § 1915(e) provides:
(e)(1) The court may request an attorney to represent any person unable to afford counsel. (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
(A) the allegation of poverty is untrue; or
(B) the action or appeal —
(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.
Dismissal for Failure to State a Claim
In the alternative, the case is dismissed for failure to state a claim. Id. § (B)(ii). The court is aware of its obligations with respect to a Rule 12(b)(6) dismissal. However, even in a pro se case, the following rules also apply:
On appeal, plaintiff first contends the district court failed to afford her complaint the benefit of all favorable factual inferences, as required when considering a Rule 12(b)(6) dismissal. We disagree. Although plaintiff characterized certain of the defendant's statements in the affidavit as "false," and alleged that probable cause would have been vitiated if certain information had been included in the affidavit, her characterizations are merely conclusory allegations, not well-pled facts which must be accepted as true. In conducting a Rule 12(b)(6) analysis, the court need not accept as true any conclusory allegations contained in the complaint. S. Disposal, Inc. v. Tex. Waste Mgmt., 161 F.3d 1259, 1262 (10th Cir. 1998).Coburn v. Nordeen, 72 Fed.Appx. 744 **2 (10th Cir. 2003) (emphasis added).
The court recognizes its obligations under cases such asGaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). Nevertheless, it is patently obvious that plaintiff cannot prevail against Best Cabs on the facts alleged (victory by Best Cabs in plaintiff's prior suits "forcing" plaintiff's move to Texas). Any amendment would be futile.
Conclusion
No person has the right to abuse the judicial system by harassing another with repeated meritless claims. Schlicher v. Thomas, 111 F.3d 777,781 (10th Cir. 1997). The case is dismissed in the interests of justice for the reasons stated herein.
A motion for reconsideration of this order pursuant to this court's Rule 7.3 is neither invited nor encouraged. The standards governing motions to reconsider are well established. A motion to reconsider is appropriate where the court has obviously misapprehended a party's position or the facts or applicable law.Comeau v. Rupp, 810 F. Supp. 1172 (D. Kan. 1992). Any motion for reconsideration will be limited to three double-spaced typewritten pages.
IT IS SO ORDERED.