Opinion
Civ. A. No. 00-941 (GMS)
November 17, 2000
MEMORANDUM AND ORDER
On November 7, 2000, Robert McAllen, a pro se plaintiff, filed an in forma pauperis application for an emergency temporary restraining order against the defendant, Attic Away From Home, et al. ("Attic"), alleging that an auction on November 8, 2000 of his property presently located on Attic's premises would constitute a violation of 42 U.S.C. § 1985(3) by abridging several of his constitutional rights. After communicating with the parties, the court issued a temporary restraining order on November 8, 2000 to enjoin the auction pursuant to Fed.R.Civ.P. 65(c) (D.I. 3). Although the court issued a temporary restraining order, it expressed a desire to see the parties resolve the dispute amicably. The court held an informal hearing on November 13, 2000 with the parties and worked with them to resolve this dispute informally.
Neither party was represented by counsel. Present at the hearing were McAllen and Robert McKeown, the owner of Attic, along with two witnesses for Attic.
In light of the agreement between the parties, the court finds the harms McAllen has alleged do not constitute irreparable injury. Therefore, the court will dissolve the temporary restraining order and declines to issue a preliminary injunction. Further, since the court finds that McAllen's complaint is frivolous and fails to state a claim upon which relief can be granted, it will dismiss the complaint under 28 U.S.C. § 1915(e)(2)(B).
For the past two years, McAllen has rented storage unit #22 from Attic ("Unit #22") located in Townsend, Delaware. He uses the facility to store, among other things, clothes, a computer system containing legal materials, research on race and hate crimes, photographs and handwritten notes. In addition, McAllen owns a van currently parked in front of Unit #22. The lease of Unit #22 is month-to-month. Throughout the pendency of his lease, McAllen has periodically fallen behind in his rent but makes his account current when he can afford to do so. McAllen is currently approximately $300 in arrears in his rent. Attic has sent him at least two notices threatening eviction and has given him more than the 30 days notice required under Delaware law.
As far as the court can determine, the gravamen of McAllen's complaint is that Attic's attempt to evict him from Unit #22 is part of a conspiracy to abridge his constitutional rights in violation of 42 U.S.C. § 1985(3) (D.I. 2). In a supplemental memorandum, Mr. McAllen alleges, in substance, that Attic's efforts to evict him are a concerted action with unnamed individuals to legally and economically coerce him into accepting an unfavorable settlement in a job discrimination action pending in Chicago, Illinois (D.I. 4). Mr. McAllen seeks (1) "summary possession rights" of Unit #22 and an easement for his van and (2) preservation of his personal effects currently located in Unit #22.
McAllen also alleges breach of contract and interference with contractual rights. As discussed below, these are state law claims over which the court can exercise supplemental jurisdiction under 28 U.S.C. § 1367.
The court scheduled a hearing on McAllen's motion for a preliminary injunction on November 13, 2000. Rather than engaging in an adversarial proceeding, the court and the parties reached an informal resolution. Upon agreement of the parties, Attic will give McAllen 30 days to remove his personal belongings from Unit #22 before proceeding with an auction. In return, McAllen agrees not to enter Unit #22 for any other purpose than to collect his personal effects and will move his van as soon as practicable. Finally, McAllen's brother has agreed to pay Attic the approximately $300 in rent arrears.
The court spoke with McAllen's brother via telephone during the proceedings. He agreed to send Attic a check for his brother's rent arrears and will assist his brother in renting a moving van and in securing a new storage facility for his belongings.
In determining whether to grant a preliminary injunction the court must consider the following factors: (1) whether McAllen has a reasonable probability of eventual success in the litigation, (2) whether McAllen will be irreparably injured during the course of this litigation in the absence of a preliminary injunction, (3) whether the possibility of harm to McAllen outweighs the possibility of harm to Attic and other interested parties and (4) whether the grant of injunctive relief would serve the public's interests. See, e.g., The Pitt News v. Fisher, 215 F.3d 354, 365-66 (3d. Cir 2000). The court can only issue a preliminary injunction if all four factors favor preliminary relief See id.
Given the agreement between the parties, there is no longer any threat of irreparable harm to McAllen. Attic and McAllen have agreed to a 30 day period in which Attic will not conduct an auction and McAllen will remove his property. If McAllen does not abide by this agreement, Attic will be free to conduct an auction or dispose of his property. In reaching the agreement, the court warned McAllen that it would not entertain another application for another temporary restraining order the day before the expiration of the 30 day period. Since McAllen cannot demonstrate irreparable harm, the court will dissolve the temporary restraining order in this case and will not issue a preliminary injunction.
Even if the parties had not entered an agreement, many harms McAllen alleges are compensable in money damages. Other courts have arrived at the same conclusion. In an October 16, 2000 letter to McAllen, Vice Chancellor William B. Chandler III of the Delaware Chancery Court stated ". . . I note that various claims asserted in the complaint appear to be legal claims for which money damages would provide complete relief" See Pl. Mem. Sup. Prelim. Inj.
Not removing the property from Unit #22 and then seeking injunctive relief upon the expiration of the 30 day period would constitute "unclean hands". This fact, standing alone, would justify the court's denial of injunctive relief.
Although a lack of irreparable harm is sufficient to deny injunctive relief, as discussed below, McAllen does not have a reasonable probability of success in litigation.
Declining to issue a preliminary injunction does not end the court's inquiry, however. The court must screen complaints filed in forma pauperis to determine if they are frivolous or if they fail to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B) (stating that "the court shall dismiss the case at any time if the court determines that the action . . . is frivolous [or] fails to state a claim upon which relief can be granted."); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Roman v. Jeffes, 904 F.2d 192, 196 (3d Cir. 1992).
The Third Circuit has not explicitly ruled whether the Prison Litigation Reform Act of 1995 in forma pauperis requirements apply to non-prison litigants seeking similar relief from court costs. Nevertheless, several district courts in this circuit have applied the strictures of 28 U.S.C. § 1915 to non-prisoner litigants. See Coleman v. State of Delaware, et al., CIV.A. No. 00-939, slip op. at 3 (D. Del. Nov. 6, 2000); Jones v. North Atlantic Treaty Organization, CIV.A. No. 98-1185, 1998 WL 136511, at *1 (E.D. Pa. Mar. 23, 1998); Harrison v. Shapiro, CIV.A. No. 97-2133, 1997 WL 197950, at *1 (E.D. Pa. Apr. 21, 1997); Powell v. Hoover, 956 F. Supp. 564, 566 (M.D. Pa. 1997).
The court granted McAllen's motion to proceed in forma pauperis on November 8, 2000 (D.1. 1). In doing so, however, the court stated that it was only granting the motion for the pendency of the proceedings surrounding the application for preliminary injunctive relief and would reconsider it at later date. Although McAllen has not filed a complaint in this action, his application for the issuance of a temporary restraining order, his statements to the court, and his supplemental memorandum supporting his motion for a preliminary injunction are functionally the same as a complaint. After reviewing McAllen's submissions and exploring his extensive allegations during the proceedings, the court will exercise its discretion under 28 U.S.C. § 1915(e)(2)(B) to dismiss the case as frivolous and for failing to state a claim upon which relief can be granted.
Since this is the first time the court has considered the frivolousness of McAllen's claims under § 1915(e)(2)(B), dismissing the action as frivolous is not an end run around the Federal Rules of Civil Procedure. See Roman, 904 F.2d at 196 (stating ". . . once the district court made initial threshold determination that some of the claims were not frivolous and that service should issue, the court should not have subsequently used § 1915(d) [sic] to dispose of the originally non-frivolous claims" since doing so treats indigent litigants differently and effectively bypasses procedural protections the Federal Rules of Civil Procedure affords all litigants.)
A claim is frivolous if it lacks an arguable basis in law or fact. See Neitzke, 490 U.S. at 327-28; Roman, 904 F.2d at 194. The Third Circuit has held that the term "frivolous" should be construed "with a broad sense of its plain meaning." See Detusch v. United States of America, 67 F.3d 1080, 1090 (3d Cir. 1995). Although the contours of "frivolousness" under § 1915(e)(2)(B) have not been exhaustively defined, claims are "frivolous" if the facts alleged are "clearly baseless", "fanciful", or "delusional". See Neitzke, 490 U.S. at 327-28; see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (stating that "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the wholly irrational or the wholly incredible, whether or not there are judicially noticed facts available to contradict them."). In such a situation, the district court can "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327.
The Third Circuit has stated that a "fanciful" allegation is one describing "scenarios clearly removed from reality." Roman, 904 F.2d at 194 ( citing Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)).
Turning to McAllen's allegations, he claims that Attic is engaged in a far flung conspiracy with unnamed individuals in Chicago, Illinois to deprive him of his civil rights. He asserts that Attic's attempts to evict him are based entirely on pressuring him to settle an employment discrimination action he is currently pursuing in Chicago. Although he states that he has evidence to support his contentions, the only evidence he offered when pressed by the court was a perceived similarity of tone and language used by a secretary employed by Attic and an unnamed person in Chicago who wanted him to settle his legal action. McAllen could not specify the language or the tone used by the individuals or even state why he thought it suggested a conspiracy.
From McAllen's memorandum in support of his motion for a preliminary injunction, it appears that he is using this action as a forum to air numerous vaguely defined grievances against officials at all levels of government and numerous unidentified individuals. Although most of his contentions also appear to be frivolous and conclusory, nothing McAllen has presented to the court suggests that these allegations bear any relationship to the actions of Attic. The court, therefore, finds that the action McAllen has brought is frivolous within the meaning of 28 U.S.C. § 1915(e)(2)(B).
Even if the court were to find McAllen's claims non-frivolous, they fail as a matter of law since they fail to state a claim upon which relief can be granted. It is universally accepted that 42 U.S.C. § 1985(3) does not provide substantive relief itself but merely provides a remedy for violations of constitutional rights. See, e.g., Marino v. Bowers, 657 F.2d 1363, 1371 (3d Cir. 1981). McAllen alleges a conspiracy to violate his First Amendment rights and to deprive him of "equal protection of the laws." His First Amendment claim fails since he has not — and cannot — allege any state action. See United Broth. of Carpenters and Jointers of America v. Scott, 463 U.S. 825, 831 (1983) (stating that conspiracy to violate First Amendment rights requires proof of state involvement). McAllen's "equal protection of the laws" claim also fails as a matter of law since again he has not demonstrated invidious, purposeful, and intentional discrimination between classes or individuals. See Grffin v. Breckenridge, 403 U.S. 88, 101-02 (1971) (stating that § 1985(3) was not intended ". . . to apply to all tortious, conspiratorial interferences with the rights of others [but must] . . . aim at a deprivation of equal enjoyment of rights secured by the law to all."); Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972) (stating that conspiracy claim based upon the Civil Rights Act of 1960 requires a clear showing of invidious, purposeful, and intentional discrimination between classes or individuals).
It is unclear from McAllen's submissions whether he claims a violation of the Fourteenth Amendment or the Civil Rights Act of 1960.
It is unlikely that McAllen can make this showing. He is a middle aged white male who is not handicapped or mentally retarded. Indeed, McAllen advised the court, and his brother confirmed, that he attended the Massachusetts Institute of Technology and is a graduate of the Berklee College of Music. Although McAllen is poor, the Court has held that indigence is not a suspect classification for Fourteenth Amendment analysis. See San Antonio Indep. Sch. Dist v. Rodriguez, 411 U.S. 1, 25-28 (1973) (finding that since wealth is not a suspect classification, Fourteenth Amendment does not require absolute equality or precisely equal advantages).
Finally, the court will decline to exercise jurisdiction to hear any of McAllen's contract claims against Attic since once his claims of constitutional violations are dismissed, there is no federal question upon which the court can predicate supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
McAllen's alleged harm is not `peculiar' and not deserving of injunctive relief. His claims against Attic are frivolous and fail to state a claim upon which relief can be granted. They will, therefore, be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
For the reasons stated above, IT IS HEREBY ORDERED THAT:
1. The court's order granting a temporary restraining order preventing Attic from conducting an auction of the contents of Unit #22 (D.I. 3) is DISSOLVED.
2. The plaintiff's claims are DISMISSED with prejudice as frivolous and for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B).
At the proceedings on November 13, 2000, McAllen made an informal request to amend his claims and add more facts. The court has discretion to deny a request to amend a claim ". . . if it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party. See Lake v. Arnold, CIV.A. No. 98-3558, slip op. at 19-20 (3d Cir. Nov. 7, 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Since the court finds that McAllen's claims are frivolous and fail as a matter of law, the court will treat McAllen's informal request for leave to amend as an oral motion and denies that motion as futile.