Opinion
Civil No. 12-2929 (NLH/KMW)
06-18-2012
FRANK BRETT, Plaintiff, v. KEN BRETT, et al., Defendants.
APPEARANCES: Frank Brett Pro Se
MEMORANDUM OPINION
AND ORDER
APPEARANCES:
Frank Brett
Pro Se
HILLMAN, District Judge
Pro se Plaintiff Frank Brett seeks to file the complaint in this action in forma pauperis pursuant to 28 U.S.C. § 1915. Based on his affidavit of poverty, this Court will grant the application to proceed in forma pauperis ("IFP") and direct the Clerk to file the Complaint.
. Plaintiff indicates in his IFP application that he has paid, or will be paying, an attorney by the name of Dennis Muir $12,000.00 for services in connection with this case including completing the IFP application. (Application IFP [Doc. No. 1-1] 5.) Despite this assertion, the remainder of Plaintiff's IFP application discloses that Plaintiff has no significant assets and only a minimal monthly income.
At this time, in accordance with the requirements of 28 U.S.C. § 1915(e) (2), the Court must review Plaintiff's complaint to determine whether it is subject to sua sponte dismissal as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from suit. For the reasons set forth below, the Court finds that Plaintiff's complaint must be dismissed.
I. BACKGROUND
Plaintiff submitted the complaint in his action, along with an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on May 16, 2012. In the complaint, Plaintiff names the following Defendants: Ken Brett ("U.S. Customs"), Nancy Salter, Bill Naulty, and Nancy Naulty. (Compl. [Doc. No. 1] 1.) Plaintiff asserts that the jurisdiction of this Court is proper under 18 U.S.C. § 1702 because Defendants allegedly "opened [Plaintiff's] mail and obstructed the correspondence." (Id.) Under the heading "Cause of Action", Plaintiff asserts that Defendants in the present action "[t]ipped off Defendants in [another] Law Suit, [and] Messed with Bank Accounts [at] Citizens Bank, Bank of America, Wachovia Bank and Sovereign Bank and Alliance Bank." (Id.)
. The Court notes that Plaintiff's complaint is approximately forty-one pages in length, but that only the first seven pages appear to contain any factual statements. (Compl. [Doc. No. 1] 1-7.) The majority of the remaining thirty-four pages consist of a long list of a series of numbers and letters, which appear to be vehicle license plate numbers, interspersed with the names of random individuals, businesses, or vehicle makes and models. (Id. at 8-41.) Plaintiff does not offer a sufficient explanation for the necessity of these pages of the complaint, and the Court cannot discern any at this time.
Plaintiff contends that Bill and Nancy Naulty opened two letters from "the Federal Court of Camden New Jersey" before the letters were delivered to Plaintiff and read the contents of these letters. (Id. at 2.) Plaintiff alleges that after reading his mail, Defendants Bill and Nancy Naulty "tipped off Scot Gelnett from Cunningham an insurance professional, John and Jen Lyons and Jen's sister and her many girlfriends from Playboy who had slandered [Plaintiff] for years since 1999." (Id.) Plaintiff also alleges that Defendants Bill and Nancy Naulty were "in on" the vandalizing of his "$2,700 dollar scooter" and later, the "stealing of the scooter with Frank and Millie and Tom Menanlin." (Id.) Plaintiff also alleges that Nancy Salter opened his mail from Citizens Bank and Alliance Bank, and thereafter gave out Plaintiff's social security number. (Id. at 3.) Similarly, Plaintiff contends that Ken Brett opened his mail in a federal court case pending before a judge in Fort Lauderdale, Florida, and also opened mail for Plaintiff from Bank of American, Wachovia Bank, Sovereign Bank, and State Farm Insurance. (Id.)
. Plaintiff goes on to allege that "[s]ome of these women [who slandered him] were Shannon Tweed, Barbara Buch and ^Ringo Starr of The Beatles', Cole Hammels and his wife of the Phillies, [and] 2 Irish sisters from Playboy." (Compl. [Doc. No. 1] 2.)
Plaintiff asserts that he "would like to sue each Defendant for 1 Million Dollars Each." (Id. at 1.) Plaintiff further requests that the Court "issue an injunction from" abuse as to Defendants Bill and Nancy Naulty, and non-defendants Bill Rafferty, David Adams, Earl Rucker, Kim Adams, Lisa Adams, Jim Falcone, and "David Adams[^s] unknown brother" for calling Plaintiff gay and dying of AIDS. (Id.)
On June 8, 2012, Plaintiff filed a motion [Doc. No. 2] seeking appointment of pro bono counsel in this case, seeking to name additional defendants, seeking to file this case under seal, and seeking to add evidence. Based on the dismissal of Plaintiff's complaint, Plaintiff's motion will be denied as moot.
II. DISCUSSION
The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires the Court, prior to docketing or as soon as practicable after docketing, to review a complaint in a civil action in which a plaintiff is proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). The PLRA requires the Court to sua sponte dismiss any claim if the Court determines that it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id.
"A document filed pro se is to be liberally construed, ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972). "Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Specific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (citations and internal quotation marks omitted).
A claim is frivolous if it "lacks even an arguable basis in law" or its factual allegations describe "fantastic or delusional scenarios." Neitzke v. Williams, 490 U.S. 319, 328 (1989); see also Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). "Given the Federal Rules' simplified standard for pleading, ,[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Thomas v. Independence Tp., 463 F.3d 285, 296-97 (3d Cir. 2006); Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004) .
III. ANALYSIS
Initially, the Court notes that the present action is not the first civil action Plaintiff has sought to bring in this District. Court records demonstrate that Plaintiff has brought at least eight other civil actions in the District of New Jersey including the following: Brett v. Burdett Tomlin Memorial, et al., Civil Action No. 1:11-cv-02323-NLH-AMD; Brett v. Simon, et al., Civil Action No. 3:ll-cv-04612-FLW-TJB; Brett v. Delaware River Port Authority, et al., Civil Action No. 1:09-cv-05012-NLH-AMD; Brett v. U.S. Attorney General, et al., Civil Action No. 1:10-cv-02864-NLH-JS; Brett v. Izzi, et al., Civil Action No. 1:10-cv-03418-NLH-KMW; Brett v. Lyons, et al., Civil Action No. 1:11-cv-02774-NLH-JS; Brett v. Testa's Bakery, et al., Civil Action No. 3:10-cv-03542-JAP-DEA; and Brett v. Office Depot Employees John, et al., Civil Action No. 3:12-cv-03134-FLW-DEA.
Particularly relevant to the present action is Brett v. Lyons, et al., Civil Action No. 1:11-cv-02774-NLH-JS (hereinafter, "the Lyons action"). In the Lyons action, just as in this action, Plaintiff named Bill and Nancy Naulty as Defendants and alleged that "Bill Naulty opened [his] mail" in one of Plaintiff's other pending cases in this District which the Court construed as Plaintiff's attempt to raise a claim under 18 U.S.C. § 1702. (Compl. in the Lyons Action [Doc. No. 1] 1; Order in the Lyons Action [Doc. No. 7] 2, Nov. 16, 2011.) Additionally, Plaintiff also brought allegations against John and Jen Lyons, and claimed that Jen Lyons's sister "slandered me at Playboy with Shannon Tweed." (Id.) The remainder of the complaint in the Lyons action was mostly illegible and largely incomprehensible, and similarly contained multiple pages of what again appeared to be license plate numbers. (Id. at 2-30.)
By Order dated November 16, 2011, this Court dismissed Plaintiff's complaint without prejudice with leave to file an amended complaint within twenty days based after finding that the Court could not exercise subject matter jurisdiction over the Lyons Action. (Order in the Lyons Action [Doc. No. 7] 3, Nov. 16, 2011.) In reviewing Plaintiff's complaint in the Lyons action, the Court found that Plaintiff "did not plead any facts other than 'Bill Naulty opened my mail' which facts as stated do not state a claim under 18 U.S.C. § 1702 [.]" (Id. at 2.) The Court also concluded that Plaintiff failed to plead any other facts sufficient to "support a claim for violation of a federal law" and that complete diversity did not exist between the parties in the Lyons action. (Id. at 2-3.) Additionally, the Court found that Plaintiff used the word "slander" in his complaint but appeared to direct those claims against various individuals not named as defendants, and that any such claims were "unrelated state law claims over which this Court [did] not exercise supplemental jurisdiction[.]" (Id. at 3.)
. The docket reflects that Plaintiff did not file an amended complaint in the Lyons action within twenty days of the November 16, 2011 Order, and the Court notes that no amended complaint was filed as of the date of this Memorandum Opinion and Order. In light of the significant similarity between the present complaint and the complaint in the Lyons action, - i.e., the claims asserted, the Defendants named, the non-defendant individuals identified, the factual statements asserted, and the relief requested - the present complaint could be construed as Plaintiff's attempt to bypass the Court's November 16, 2011 Order in the Lyons action in order to assert these claims beyond the time for amendment previously granted by the Court. Despite this potential, out of an abundance of caution, the Court will not construe Plaintiff's present complaint in that manner.
However, Plaintiff is on notice that the leave to amend granted below in this Memorandum Opinion and Order will be strictly construed and represents Plaintiff's final opportunity to amend his complaint with regard to the claims, factual assertions, and Defendants in this action and in the Lyons action. If Plaintiff fails to file a timely amended complaint in this case, the complaint with be dismissed with prejudice in its entirety.
In the present action, Plaintiff again seeks relief based on allegations that Defendants Ken Brett, Nancy Salter, Bill Naulty, and Nancy Naulty opened Plaintiff's mail from various sources, including several banks in violation of 18 U.S.C. § 1702. Section 1702, contained within Title 18 of the United States Code defining federal crimes and outlining federal criminal procedure, provides:
Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same,18 U.S.C. § 1702.
shall be fined under this title or imprisoned not more than five years, or both.
However, Section 1702 is a criminal statute and cannot provide Plaintiff with any relief in a civil action such as this. Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 162 (D.D.C. 1976) (finding plaintiff's cause of action based on Section 1702 "without basis" because "Section 1702 is purely a criminal statute and cannot support a civil cause of action[.]") (citing United States ex rel. Pope v. Hendricks, 326 F. Supp. 699, 701 (E.D. Pa. 1971)); see also Stephenson v. Veterans Admin., No. 91-3724, 1991 WL 208898, at *5 (E.D. Pa. 1991) (dismissing plaintiff's claim based on Section 1702 because that section does contain a provision for civil remedies). Accordingly, Plaintiff's claim under Section 1702 fails to state a claim for which relief can be granted and Plaintiff's complaint, brought on that basis, must therefore be dismissed. Plaintiff's complaint does not appear to allege any further violations of federal law for which Plaintiff may bring a civil action, and therefore federal question jurisdiction pursuant to 28 U.S.C. § 1331 is not properly alleged in the complaint.
. Although the Civil Cover Sheet filed with Plaintiff's complaint indicates that the basis for jurisdiction in this case is that the United States Government is a defendant, the complaint itself belies that conclusion. All four Defendants named in the complaint are clearly private individuals. Moreover, to the extent that the parenthetical notation of "U.S. Customs" next to Defendant Ken Brett's name may be construed as Plaintiff s attempt to name a government agent or agency as a defendant in this action, the allegations of the complaint make clear that Plaintiff is attempting to bring suit against Ken Brett for alleged actions Mr. Brett engaged in as a private citizen. Plaintiff does not make sufficient allegations to demonstrate that any of Mr. Brett's alleged actions occurred in the course of Mr. Brett's employment for United States Customs, or even that Mr. Brett works for Customs.
Although Plaintiff has not adequately pled the citizenship of any of the parties in this action pursuant to 28 U.S.C. § 1332, for purposes of this review the Court will assume that the parties are citizens of those states identified by the addresses set forth in the complaint. Therefore, Plaintiff is presumed to be a citizen of Pennsylvania, and Defendant Nancy Salter, whose address is identified as 20 N. Monoa Road in Havertown, Pennsylvania, is also presumed to be a citizen of Pennsylvania. It is well established that where a plaintiff is a citizen of one state and a defendant is a citizen of the same state complete diversity is lacking. See Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010). Complete diversity is lacking here because Plaintiff and Defendant Salter are both citizens of Pennsylvania. Therefore, to the extent Plaintiff alleges any additional claims against Defendants, the Court cannot exercise subject matter jurisdiction over those claims.
Finally, to the extent Plaintiff alleges claims for slander against any of the named Defendants and various individuals not named as defendants in this case Plaintiff's slander claims appear to be unrelated state law claims over which this Court does not exercise supplemental jurisdiction. See 28 U.S.C. § 1367; In re Prudential Ins. Co. America Sales Practice Litigation, 148 F.3d 283, 302 (3d Cir. 1998).
Accordingly,
IT IS on this 15th day of June 2012 hereby
ORDERED that Plaintiff's application to proceed in forma pauperis shall be, and hereby is, GRANTED , and the Clerk is directed to FILE the complaint in this action; and it is further
ORDERED that Plaintiff's complaint shall be, and hereby is, DISMISSED WITHOUT PREJUDICE WITH LEAVE TO AMEND WITHIN TWENTY (20) DAYS of the date of entry of this Memorandum Opinion and Order; and it is further
ORDERED that Plaintiff's motion [Doc. No. 2] seeking appointment of counsel, name additional defendants, to file this case under seal, and to add evidence in this case shall be, and hereby is, DENIED AS MOOT; and it is further
ORDERED that the Clerk is directed to CLOSE the file in this action; and it is further
ORDERED that the Clerk is directed to send a copy of this Memorandum Opinion and Order to Plaintiff via first-class mail.
At Camden, New Jersey
Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.