Opinion
Civil Action 22-140
03-23-2023
JOHN EDWARD FOLAND, Plaintiff, v. RICHARD LEE FOLAND, SR., et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Amended Complaint be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and for lack of subject matter jurisdiction.
II. Report
Plaintiff John Edward Foland (“Foland”), who alleges that he is an American citizen living in Germany, submitted a Complaint along with a motion for leave to proceed in forma pauperis (“IFP). Subsequently, he submitted an Amended Complaint changing some of the defendants. The Court granted Foland's IFP motion and the Amended Complaint has been docketed.
Upon review of the Amended Complaint, the Court concludes that it should be dismissed because it is frivolous and also based upon the lack of subject matter jurisdiction.
A. Factual Allegations
Foland appears to allege that the Defendants, Richard Lee Foland, Sr., Citibank UK, Ric Flitton and Danny Sloggett, took certain actions against him. Suffice it to say that the Complaint is difficult to decipher. Citing 18 U.S.C. § 1543, forgery or false use of passport, Foland alleges that various defendants are illegally holding money that belongs to him. As he alleges, the Defendants are “guilty to varying degree in the loss of approx. $35,000, as well as Continued Illegal Spending Not Financially harmful to me I presume Citibank Corp. To Be Picking up $42,000 lost as a result of Police cooperation with Ric Flitton to Extort Monies owned by Me from Richard Lee Foland, Sr. as well as Richard Lee Foland Holding, another $290,000 (Best Approximation to date since 1993 Illegally Held in my Name without my Inform, or Having Been Given a [prospectus].” (Am. Compl. at 4.)
As relief, Foland requests “reparation of the Two Lost Amounts $35,000 Danny Sloggett, $42,000 Ric Flitton, Further stricturing [sic] of The Merril Lynch Stock account to Bring it into Legal [parameters] of my ownership, and Accounting For stock earnings since 1991.” (Id. at 4.)
B. Standard of Review
The in forma pauperis statute provides, in relevant part, that the Court may authorize the commencement of any civil action without payment of fees when a person submits an affidavit stating that based upon his or her the assets, the person is unable to pay these fees. 28 U.S.C. § 1915(a).
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), courts are required to screen complaints at any time where, as is the case here, the plaintiff has been granted leave to proceed in forma pauperis. 28 U.S.C. § 1915(e)(2). The PLRA provides in relevant part that:
As the Court of Appeals for the Third Circuit has noted: “The reference to prisoners in § 1915(a)(1) appears to be a mistake. In forma pauperis status is afforded to all indigent persons, not just prisoners.” Douris v. Middletown Twp., 293 Fed.Appx. 130, 132 n.1 (3d Cir. 2008).
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 upon which relief may be granted; or
iii. seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2). Thus, the Court must screen the Amended Complaint to determine whether it should be dismissed.
Where the plaintiff is proceeding pro se, the complaint is “to be liberally construed,” and, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
The Supreme Court has held that a complaint “is frivolous where it lacks an arguable basis either in law or in fact... [The] term ‘frivolous,' when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). See Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989) (frivolous factual claims are those that describe “fantastic or delusional scenarios.”)
C. Analysis
As a review of the Amended Complaint demonstrates, Foland's allegations are practically incomprehensible. The factual basis of any claims he may be attempting to assert is unintelligible. Also lacking is any legal foundation for a recognizable cause of action against the defendants, and the nature of the relief sought is meaningless in context. Simply put, the Amended Complaint lacks an arguable basis either in law or in fact, and as such, is frivolous and should be dismissed.
In addition, the Complaint should be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”)
Foland has checked boxes indicating that he is asserting both federal question and diversity jurisdiction. However, there is no private cause of action for a criminal violation of 18 U.S.C. § 1543. See Jones v. Sussex Corr. Inst., 725 Fed.Appx. 157, 160 n.3 (3d Cir. 2017) (rejecting prisoner's attempt to bring a claim citing list of forty criminal statutes that did not provide for a private right of action). See also Addlespurger v. Corbett, 2011 WL 3418975, at *4 (W.D. Pa. Aug. 1, 2011) (no private cause of action for wire fraud, mail fraud, conspiracy and other federal crimes), aff'd, 461 Fed.Appx. 82, 87 (3d Cir. 2012)
Nor could Foland assert claims under 42 U.S.C. § 1983, because Defendants all of whom are private individuals or a corporation (Citibank) were not acting “under color of state law.” See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.”) Thus, subject matter jurisdiction is not based on a federal question under 28 U.S.C. § 1331.
Moreover, as Judge Ranjan observed when dismissing a prior case filed by Foland, he cannot base subject matter jurisdiction on diversity of citizenship under 28 U.S.C. § 1332(a)(1), which requires citizens to be from different states and an amount in controversy that exceeds $75,000. Foland is an American citizen living in Germany, and thus is stateless for purposes of diversity jurisdiction: he cannot sue or be sued in federal court. See Freidrich v. Davis, 767 F.3d 374, 377 (3d Cir. 2014) (“The Supreme Court, interpreting § 1332(a), has concluded that American citizens who are domiciled abroad do not satisfy any of the enumerated categories required for a federal court's exercise of diversity jurisdiction.”)
Foland has filed numerous cases in this Court, most of which have been dismissed at a preliminary stage. See Civ. A. Nos. 22-9, 22-11, 22-61, 22-67, 22-153, 22-422, 22-289.
In some of his documents, Foland provides a Pennsylvania address. However, even if he were a Pennsylvania citizen living in this state, he still cannot invoke diversity jurisdiction because he alleges that Defendant Richard Lee Foland, Sr. is a Pennsylvania citizen. Thus, complete diversity does not exist. As the Supreme Court has stated: “Since its enactment, we have interpreted the diversity statute to require ‘complete diversity' of citizenship.” Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990). Thus, jurisdiction may not be based on diversity of citizenship under 28 U.S.C. § 1332(a)(1).
II. Conclusion
Therefore, it is recommended that the Complaint be dismissed both because it is frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and based upon lack of subject matter jurisdiction.
If Plaintiff wishes to challenge this Report and Recommendation, he must seek review by the district judge by filing objections by April 10, 2023. Failure to file timely objections will waive the right of appeal.
John Edward Foland Luxumburger Strasse 285a 50939 Koln/Sulz Germany