Opinion
Civil Action 4:22-CV-689
06-03-2022
JEFFREY D. HILL, Plaintiff v. RICK SACCONE, Defendant
BRANN, C.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
On May 10, 2022, Jeffrey D. Hill (“Plaintiff”) lodged this case alleging that Rick Saccone (“Defendant Saccone”) should not be permitted to run for Pennsylvania Lieutenant Governor.
To the extent that the 2011 sanction is still enforceable, I DECLINE to certify this action for filing because Plaintiff has not pleaded a plausible claim over which this Court has original jurisdiction. In the alternative, it is RECOMMENDED that:
Plaintiff has been sanctioned by this Court for filing a large volume of meritless civil cases. Order, Hill v. Carpenter, No. 4:08-CV-591 (M.D. Pa. Feb 26, 2011), ECF No. 18 (requiring that Plaintiff “receive certification from a magistrate judge prior to filing a future civil action within the Middle District of Pennsylvania.”). However, in 2015, the Third Circuit Court of Appeals questioned the enforceability of that sanction. Mandate of USCA, Hill v. Umpstead, No. 4:15-CV-587 (M.D. Pa. Mar. 15, 2016), ECF No. 9-2 (noting that “the District Court's pre-filing injunction-which ‘sanctioned] Hill by requiring him to receive certification from a magistrate judge prior to filing a future civil action within the Middle district of Pennsylvania' - fails to comport with our direction that it ‘impose more tailored sanctions against him.'”).
(1) Plaintiff's motion to proceed in forma pauperis (Doc. 2) be GRANTED, and this case be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without leave to amend.
(2) The Clerk of Court be DIRECTED to close this case.
II. BACKGROUND & PROCEDURAL HISTORY
A. PLAINTIFF'S LITIGATION HISTORY IN THE MIDDLE DISTRICT OF PENNSYLVANIA
It appears that Plaintiff initiated his first civil action in this Court in 1988. All cases were filed pro se and Plaintiff sought leave to proceed in forma pauperis. By September 1996, Plaintiff had filed approximately 42 separate actions in the Middle District of Pennsylvania. See Hill v. Gates, 940 F.Supp. 108, 109 (M.D. Pa. 1996). On September 3, 1996, United States District Judge James McClure issued an Order directing Plaintiff to show cause as to why sanctions should not be imposed. Id. In that Order, the court “indicated that it would consider as an appropriate sanction the issuance of an order rendering Hill subject to the same restrictions with respect to litigation under § 1915 as are applied for prisoners.” Id. On September 18, 1996, Judge McClure imposed a series of restrictions (explained in 51 paragraphs at the conclusion of his 1996 order) on Plaintiff's ability to file cases in this district, including (but not limited to):
(1) requiring Plaintiff to pay an initial partial filing fee of $5.00 and to deposit $5.00 per month until the full filing fee was paid in each civil action filed (failure to pay, and keep making payments would result in dismissal), id at 113-114; and
(2) barring Plaintiff from bringing any further civil actions if he has “on 3 or more occasions after the date of [the September 18, 1996 order], brought an action or appeal in a court of the United States that was dismissed pursuant to this order on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. at 114.
In April 2008, Plaintiff ran afoul of the 1996 sanction by filing his third frivolous lawsuit. On April 4, 2008, Judge McClure issued an order that states as follows:
4. Pursuant to our September 18, 1996 order in M.D. Pa. Civ. No. 96-1572 and our authority to impose sanctions under Rule 11 of the Federal Rules of Civil Procedure, plaintiff's complaint is dismissed based on his filing at least three civil actions in the courts of the United States since the date of that order that were dismissed as frivolous, malicious, or for failure to state a claim. Alternatively, the complaint is dismissed on the merits under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim.
5. Plaintiff is ordered not to bring any civil action in the Middle District of Pennsylvania. We warn plaintiff that a failure to comply with this court order may result in contempt proceedings being brought against plaintiff.Hill v. Carpenter, No. 4:08-CV-591, 2008 WL 936927 at *4 (M.D. Pa. Apr. 4, 2008).
Plaintiff appealed Judge McClure's April 2008 Order to the Third Circuit Court of Appeals. On April 22, 2009, the Third Circuit affirmed Judge McClure's dismissal of Plaintiff's complaint, but vacated the imposition of sanction. Hill v. Carpenter, 323 Fed.Appx. 167, 168 (3d Cir. 2009). In doing so the Circuit explained:
The District Court clearly was within its discretion to impose sanctions against Hill, as his filings in this case contained wholly inappropriate language and showed a complete lack of respect for the Court and the judicial process. Moreover, the instant case is but one of many non-meritorious actions Hill has filed over the years, and it is not the first instance in which Hill has used disrespectful and abusive language. Nonetheless, there is no indication that the Court gave Hill adequate notice and an opportunity to respond before imposing sanctions. See Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993) (“If the circumstances warrant the imposition of an injunction [restricting a litigant's ability to file future law suits], the District Court must give notice to the litigant to show cause why the proposed injunctive relief should not issue.”); see also In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982) (“[The litigant] should have been provided with an opportunity to oppose the court's order [enjoining him from filing future cases] before it was instituted.”) The imposed sanctions, which bar Hill from ever bringing another lawsuit in the district, were also overly broad. See In re Packer Ave. Assocs., 884 F.2d 745, 748 (3d Cir. 1989) (“There simply is no support in the law for permitting an injunction prohibiting a litigant from ever filing a document in federal court.”); see also Brow, 994 F.2d at 1038 (“[T]he scope of the injunctive order must be narrowly tailored to fit the particular circumstances of the case before the District Court.”). Thus, we must vacate the Court's injunction barring Hill from bringing any future civil suit in the Middle District of Pennsylvania.
In lieu of the vacated injunction, we recommend that the District Court-after providing notice and an opportunity to respond-consider adopting an order requiring Hill to obtain certification from a United States Magistrate Judge before bringing any future action in the Middle District of Pennsylvania. Such an approach has been endorsed by Courts of Appeals, see, e.g., Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 186-94 (5th Cir. 2008) (upholding an injunction preventing an abusive litigant from filing claims in any federal district court, bankruptcy court, or agency without court permission); Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir. 1996) (“[I]t is permissible to require one who has abused the legal process to make a showing that a tendered lawsuit is not frivolous or vexatious before permitting it to be filed.”); In re Packer Ave. Assoc., 884 F.2d at 748 (requiring a litigant to obtain leave of the district court before filing any action
relating to a particular bankruptcy case); Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990) (“[D]istrict courts in this circuit may issue an injunction to require litigants to obtain the approval of the court before filing further complaints.”), and it would prevent Hill from pursuing frivolous actions without denying him access to the courts.
In addition, it may be appropriate to impose contempt sanctions against Hill for his blatant violation of the order prohibiting him “from filing any document which is replete with offensive, derogatory material.” Order at 10, Hill v. Gates, 940 F.Supp. 108 (M.D. Pa. 1996). Hill's complaint and appellate filings are brimming with vile and outrageous remarks that demean the judiciary and warrant a strong rebuke.Id. at 171-172.
In December of 2010, Plaintiff's case was reassigned to United States District Judge Yvette Kane, following the death of Judge McClure. On January 6, 2011, Judge Kane issued an order directing Plaintiff to show cause why sanctions (in the form of requiring Plaintiff to obtain certification from a Magistrate Judge before filing any new civil case) should not be imposed. Order to Show Cause, Hill v. Carpenter, No. 4:08-CV-591 (M.D. Pa. Jan. 6, 2011), ECF No. 16. On January 19, 2011, Plaintiff filed a response. Response, Hill v. Carpenter, No. 4:08-CV-591 (M.D. Pa. Jan. 19, 2011), ECF No. 17. On February 16, 2011, Judge Kane issued an order imposing a sanction that Plaintiff be “required to obtain certification from a United States Magistrate Judge prior to filing a future civil action within the Middle District of Pennsylvania.” Hill v. Carpenter, No. 4:08-CV-591, 2011 WL 676810 at *2 (M.D. Pa. Feb 16, 2011). In doing so, Judge Kane explained:
On January 6, 2011, pursuant to the recommendation of the Third Circuit, the Court issued an order on Hill to show cause why he should not be required to obtain certification from a United States Magistrate Judge prior to filing a future civil action within the Middle District of Pennsylvania. (Doc. No. 16 at 4-5); see also Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990) ([D]istrict courts in this circuit may issue an injunction to require litigants to obtain the approval of the court before filing further complaints.”). On January 19, 2011, Hill filed a twenty-one page document, with exhibits, entitled “Response to ‘Judge' Kane's 1-6-11 Rule to Show Cause.” (Doc. No. 17). Although this document is docketed as a response, it is wholly unresponsive to the Court's January 6, 2011 Order, contains vitriolic and unwarranted language, and continues the long pattern of abusive posturing by Hill.
The Court has provided Hill with notice “to show cause why injunctive relief should not issue.” Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987). In this notice, the Court informed Hill that he faced potential sanctions in the form of having to obtain certification from a magistrate judge prior to filing a future civil action within the Middle District of Pennsylvania. (Doc. No. 16 at 4-5). Hill has failed to adequately respond to this notice. Therefore, pursuant to the recommendation of the Third Circuit, the Court will sanction Hill by requiring him to receive certification from a magistrate judge prior to filing a future civil action within the Middle District of Pennsylvania.Id. at 1-2.
Since that sanction was imposed Plaintiff filed several new cases in the Middle District of Pennsylvania in which he requested leave to proceed in forma pauperis.
In one such case, filed on March 24, 2015, Plaintiff alleged, in large part, “a conspiracy between municipal officials that resulted in his prosecution and incarceration for 5 ½ years on sundry ‘trumped-up' criminal charges, all of which occurred decades ago.” Report & Recommendation, Hill v. Umpstead, No. 4:15-CV-587 (M.D. Pa. Mar. 27, 2015), ECF No. 3. The complaint also concerned a dispute between Plaintiff and the “borough officials related to snow removal over the recent winter months.” Id. On March 27, 2015, United States Magistrate Judge Karoline Mehalchick issued a report explaining that Plaintiff's claims related his criminal convictions (which occurred more than a decade before the complaint was filed) were barred by the applicable statute of limitations, and Plaintiff's claims related to the snow removal were insufficient to support a plausible RICO or civil rights claim. Id. Judge Mehalchick declined to certify Plaintiff's complaint for filing because it was “legally and factually frivolous” and recommended that the complaint be dismissed pursuant to the February 2011 sanction order. Id. On June 25, 2015, United States District Judge Matthew W. Brann adopted Judge Mehalchick's recommendation and dismissed Plaintiff's case. Order, Hill v. Umpstead, No. 4:15-CV-587 (M.D. Pa. June 25, 2015), ECF No. 6. Plaintiff appealed. On February 2, 2016, the Third Circuit Court of Appeals issued an opinion affirming the dismissal of Plaintiff's lawsuit because the claims alleged had no merit. However, in doing so, the Circuit remarked:
District Courts in this Circuit may issue an injunction to require litigants who have engaged in abusive, groundless, and vexatious litigation to obtain approval of the court before filing further complaints. See Chipps v. U.S. Dist. Ct. for Middle Dist. of Pa., 882 F.2d 72, 73 (3d Cir. 1989). We have recognized, however, that a prefiling injunction is an extreme remedy which must be “narrowly
tailored and sparingly used.” Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990) (quoting In re Packer Ave. Assocs., 884 F.2d 745, 747 (3d Cir. 1989)). “Narrowly tailored” means fitting the language of the injunction to the particular circumstances of the case. Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993). Thus, we have approved of an order “directing that the litigant not file any section 1983 claims without leave of court and that in seeking leave of court, the litigant certify (1) that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal courts, (2) that he believes the facts alleged in his complaint to be true, and (3) that he knows of no reason to believe his claims are foreclosed by controlling law.” Abdul-Akbar, 901 F.2d at 333. Here, the District Court's pre-filing injunction - which “sanctioned] Hill by requiring him to receive certification from a magistrate judge prior to filing a future civil action within the Middle District of Pennsylvania” - fails to comport with our direction that it “impose more tailored sanctions against him.” Hill, 323 Fed.Appx. at 172. Despite this failure, however, the District Court properly dismissed Hill's complaint because, for the reasons provided below, his claims lack merit.Mandate of USCA, Hill v. Umpstead, No. 4:15-CV-587 (M.D. Pa. Mar. 14, 2016), ECF No. 9-2.
In 2020 Plaintiff filed a case concerning a 2004 tax assessment. Hill v. Lycoming County Government, No. 4:20-CV-2397 (M.D. Pa.). On December 23, 2020, I issued a Report recommending that Plaintiff's complaint in that case not be certified, or in the alternative that it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Id. at ECF No. 7. Plaintiff did not file objections to that Report & Recommendation, and it was adopted. The case was then referred back to me to impose a sanction. On March 24, 2021, I issued a Report recommending that Plaintiff be enjoined from filing any further lawsuits specifically about the 2004 Lycoming County tax assessment without counsel or without paying the full civil filing fee. Id. at ECF No. 13. It was adopted by the District Court, and upheld on appeal by the Third Circuit. Id. at ECF Nos. 25, 31-1.
Most recently, Plaintiff has filed this case, and two others, attempting to have political candidates removed from state ballots. See Hill v. Mastriano, No. 4:22-CV-556-MWB (M.D. Pa.); Hill v. Perry, No. 4:22-CV-560-MWB (M.D. Pa.). On April 26, 2022, I issued a Report & Recommendation on two of those cases, denying certification and in the alternative recommending dismissal without leave to amend. Hill v. Mastriano, No. 4:22-CV-556 (M.D. Pa.), ECF No. 7; Hill v. Perry, No. 4:22-CV-560 (M.D. Pa.), ECF No. 7. The Reports & Recommendations issued in those cases are pending before the District Court.
B. PLAINTIFF'S ALLEGATIONS IN THIS CASE
On May 10, 2022, Plaintiff lodged a pleading in this case titled “Petition for Disqualification from Ballot.” (Doc. 1). The only named Defendant is Rick saccone. in this pleading, Plaintiff alleges:
Pursuant to the Us Constitution-Amendment 14, section 3, former UsAF counterintelligence officer and former 4-time PA General Assemblyman Rick saccone should be barred from running for Pennsylvania Lieutenant Governor in 2022 for violating his solemnly sworn oath of public office and failing to support the constitution of the United states having engaged in the 1-6-21 insurrection against the same and subversive activities leading up to the political violence at the Capitol in Washington, D.C. incited by President Donald Trump
that resulted in serious injuries to 140 Capitol and DC Metro police officers and the death of 5 police officers.(Doc. 1, p. 1).
In support of his allegation, under the heading “Affidavit,” Plaintiff alleges:
(1) Former U.S. Air Force counterintelligence officer and former 4 time Pennsylvania state representative (2010-2018) posted on his Facebook page on 1-6-21 at the Capitol building in Washington, DC while he was video recording the insurrection incited earlier by Trump, “We are storming the capitol. Our vanguard has broken thru the barricades. We will save this nation. Are u with me?” (Selfie photo of Saccone wearing a blue Trump knit hat).
- Trump urged supporters to come to DC to the 1-6-21 STOP the STEAL rally at the Ellipse saying, “It's going to be wild.” (Days before the STOP the STEAL rally).
- Trump told his loyalists/cultists/worshippers at the Ellipse 1-621 STOP the STEAL rally to “Fight like Hell or we won't have a country anymore.”
(2) Saccone tweeted from the Capitol live on 1-6-21 during the insurrection, “We are storming the Capitol. I'm telling you we have hundreds of thousands of people here to support our president and save our nation. Are you with me? They broke down the gate. They're macing them up there.”
(3) Saccone encouraged Trump insurrections to breach police barriers exhorting them to do violence and storm the Capitol and “run out all the evil people and RINOs that don't support Trump.” While Saccone was with Pa state senator Doug Mastriano adjacent to the 1-6-21 insurrectionists breaching a police barrier of bicycle racks at the Capitol in a selfie photo of Saccone and Mastriano posted on Twitter.
Trump called for his loyalists/cultists/worshippers at the 1-6-21 STOP the STEAL rally at the Ellipse to fight for their country 20 times during his 1 hour, 13 minute speech.
Mo Brooks told the crowd to “take down names and kick ass” on 1-6-21 Rudy Giuliani told the crowd that the capitol would be a “test by combat” on 1-6-21.
Steve Bannon broadcast on his WarRoom podcast before 1-621 that the 1-6-21 capitol protest was going to be totally different from what people expected.
Violence was forecast well in advance of 1-6-21 at the Capitol.(Doc. 1, pp. 1-2).
I construe the pleading as requesting that Defendant Saccone be removed from the ballot in the May 2022 Pennsylvania republican primary election.
III. LEGAL STANDARD
This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007) (“the screening procedures set forth in 28 U.S.C. § 1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners alike.”). Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(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.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that “pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). “[A] complaint must do more than allege the plaintiff's entitlement to relief.” Id. at 211. It also “has to ‘show' such an entitlement with its facts.” Id.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
A complaint filed by a pro se litigant 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, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 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). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are enough to raise the Plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
IV. ANALYSIS
A. PLAINTIFF LACKS STANDING TO BRING A § 1983 CLAIM
Although Plaintiff cites to the Fourteenth Amendment, it is not clear whether he seeks to bring a claim under 42 U.S.C. § 1983. To the extent that he does, I find that his claim fails because Plaintiff has not alleged any facts that suggest Defendant Saccone is a state actor.
“Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). “It is well settled that § 1983 does not confer any substantive rights, but merely ‘provides a method for vindicating federal rights elsewhere conferred.'” Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Cty., 757 F.3d 99, 104 (3d Cir. 2014)). To establish a claim under § 1983, Plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Nothing in the complaint suggests that Defendant Saccone is currently a state actor. Instead, Plaintiff alleges that Defendant Saccone is a political candidate. The acts of a political candidate who does not currently hold any office have been viewed by the Courts as private conduct that does not fall within the scope of § 1983. See Salkin v. Labrosse, No. 2:18-CV-13910, 2019 WL 2498926 at *5 (D.N.J. June 17, 2019) (citing Melo v. Hafer, 912 F.2d 628, 638 (3d Cir. 1990) and Acosta v. Democratic City Comm., 288 F.Supp.3d 597, 636 (E.D. Pa. 2018).
Accordingly, Plaintiff's § 1983 claim against Defendant Saccone should be dismissed.
B. IN THE ABSENCE OF ANY FEDERAL CLAIM THE COURT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S STATE LAW CLAIM
Pennsylvania regulates the time, place, and manner of its elections through the Pennsylvania Election Code. 25 P.S. §§ 2601 et seq. Under the Pennsylvania Election Code, each candidate must submit a nomination petition to the state board of elections, which includes an affidavit in which the candidate must certify that he or she is eligible for office. 25 P.S. § 2870. The Pennsylvania Election Code also provides a process for an individual voter, like Plaintiff, to object to nomination petition. 25 P.S. § 2397. The title of Plaintiff's pleading in this case is “Petition for Disqualification from Ballot.” (Doc. 1). Therefore, I construe the pleading as attempting to file a petition for disqualification under state law. Plaintiff has pleaded no basis for this Court to exercise original jurisdiction over that claim.
Where a district court has dismissed all claims over which it had original jurisdiction, the Court may decline to exercise supplemental jurisdiction over state law claims. 28 U.S.C. § 1367(c)(3). Whether the Court will exercise supplemental jurisdiction is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). That decision should be based on “the values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
Ordinarily, when all federal law claims have been dismissed and only state law claims remain, the balance of these factors indicates that these remaining claims properly belong in state court. Id. at 350. This case is no exception. In the absence of any plausible federal claim, Plaintiff's state law claim should be dismissed.
C. EFFECT OF PRIOR INJUNCTIVE SANCTIONS
As noted in Section II(A) of this Report, Plaintiff is subject to two injunctive sanctions in this district. Plaintiff's current lawsuit does not contain the objectional language that, in part, prompted Judge McClure to issue sanctions thirteen years ago. To the extent that the 2011 sanction requiring Plaintiff to obtain certification from a United States Magistrate Judge before filing any future civil action within the Middle District of Pennsylvania is enforceable, I decline to certify Plaintiff's pleading in this case because Plaintiff has failed to plead a plausible claim over which this Court has original jurisdiction.
The sanction prohibiting Plaintiff from filing any civil action in this Court that includes a claim about his 2004 tax assessment is not applicable to the claims raised in this pleading.
D. LEAVE TO AMEND SHOULD BE DENIED
If a complaint is subject to dismissal for failure to state a claim, “a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). If the 2011 sanction is no longer enforceable, Plaintiff's pleading should nonetheless be dismissed without leave to amend because amendment is futile. As explained in Section IV(A) of this Report, the only Defendant named in Plaintiff's claim under 42 U.S.C. § 1983 is not a state actor. Amendment cannot cure this defect.
V. RECOMMENDATION
To the extent that the 2011 sanction is still enforceable, I DECLINE to certify this action for filing because Defendant Saccone is not a state actor. In the alternative, it is RECOMMENDED that:
(1) Plaintiff's motion to proceed in forma pauperis (Doc. 2) be GRANTED, and the case be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without leave to amend.
(2) The Clerk of Court be DIRECTED to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.