Opinion
No. 5:18-CV-390-D No. 5:18-CV-391-FL No. 5:18-CV-404-D No. 5:18-CV-405-FL No. 5:18-CV-406-FL No. 5:18-CV-412-D No. 5:18-CV-529-BO No. 5:18-CV-530-D No. 5:18-CV-531-BO No. 5:18-CV-532-FL No. 5:18-CV-533-BO No. 5:18-CV-534-FL No. 5:18-CV-535-BO No. 5:18-CV-536-FL No. 5:18-CV-537-FL No. 5:18-CV-538-D No. 5:18-CV-561-H No. 5:18-CV-562-D No. 5:18-CV-563-D No. 5:18-CV-564-FL No. 5:18-CV-565-D No. 5:18-CV-566-D No. 5:18-CV-567-FL No. 5:18-CV-568-FL
12-03-2018
PATRICK SOLOMON Plaintiff, v. C.I.A., Defendant. PATRICK SOLOMON Plaintiff, v. F.B.I., Defendant. PATRICK SOLOMON, Plaintiff, v. DRUG ENFORCEMENT AGENCY, Defendant. PATRICK SOLOMON, Plaintiff, v. U.S. MARSHALS, Defendant. PATRICK SOLOMON, Plaintiff, v. A.T.F., Defendant. PATRICK SOLOMON, Plaintiff, v. A.T.F. FIREARMS, Defendant. PATRICK SOLOMON, Plaintiff, v. MARINES DRUG ENFORCEMENT AGENCY; DEA; and ATF, Defendants. PATRICK SOLOMON, Plaintiff, v. DRUG ENFORCEMENT AGENCY D.E.A. (WAR ON DRUGS), Defendant. PATRICK DEON SOLOMON, Plaintiff, v. U.S. ATF MARSHALS; FBI CUSTOMS; ATF NARCOTICS; US ARMY; US MARINES; and DEA, Defendants. PATRICK SOLOMON, Plaintiff, v. U.S. NAVY and U.S. COAST GUARD, Defendants. PATRICK SOLOMON, Plaintiff, v. U.S. ARMY and MARINE EXPRESS TEAMS, Defendants. PATRICK SOLOMON, Plaintiff, v. U.S. AIR FORCE, Defendant. PATRICK SOLOMON, Plaintiff, v. U.S. CUSTOMS and U.S. COAST GUARD, Defendants. PATRICK SOLOMON, Plaintiff, v. U.S. COAST GUARD, Defendant. PATRICK SOLOMON, Plaintiff, v. A.T.F., Defendant. PATRICK SOLOMON, Plaintiff, v. SECRET SERVICE DEA, Defendant. PATRICK SOLOMON, Plaintiff, v. UCP EASTERN SEALS, Defendant. PATRICK SOLOMON, Plaintiff, v. US MARSHALS, Defendant. PATRICK SOLOMON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. PATRICK SOLOMON, Plaintiff, v. F.E.D.S. GOVT, Defendant. PATRICK SOLOMON, Plaintiff, v. WAKE COUNTY SHERIFF, Defendant. PATRICK SOLOMON, Plaintiff, v. RALEIGH POLICE DEPARTMENT INTERNAL AFFAIRS UNIT, Defendant. PATRICK SOLOMON, Plaintiff, v. STATE BUREAU OF INVESTIGATION, Defendant. PATRICK SOLOMON, Plaintiff, v. STATE OF NORTH CAROLINA, Defendant.
MEMORANDUM AND RECOMMENDATION and ASSOCIATED ORDERS
INTRODUCTION
The above-captioned cases are before the court on the motions (D.E. 1 in each case) by plaintiff Patrick Solomon ("plaintiff") to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and for the associated frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). The motions and frivolity review were referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) in each of the above-referenced cases. For purposes of efficiency and conservation of judicial resources, and because each case suffers from the same legal flaws, the court has consolidated these cases solely for purposes of this Memorandum and Recommendation and Associated Orders. For the reasons set forth below, it will be: (1) ordered that plaintiff's motions to proceed in forma pauperis be allowed; (2) recommended that each of the actions be dismissed pursuant to the court's frivolity review; and (3) recommended that a pre-filing injunction (in the form attached hereto) be entered against plaintiff and ordered that plaintiff have the opportunity to file a memorandum opposing or otherwise addressing entry of such a pre-filing injunction.
The Clerk is accordingly DIRECTED to file a copy of this Memorandum and Recommendation and Associated Orders in each of the above-captioned cases.
ORDER ON IN FORMA PAUPERIS MOTIONS
Based on the information in the motions to proceed in forma pauperis, the court finds that plaintiff has adequately demonstrated his inability to prepay the required court costs.
IT IS THEREFORE ORDERED that each of his motions (D.E. 1) to proceed in forma pauperis in all of the above-referenced cases are ALLOWED.
MEMORANDUM AND RECOMMENDATION
I. FRIVOLITY REVIEW
A. Background
Read liberally, plaintiff's claims in each of the above-referenced cases purportedly arise pursuant to 42 U.S.C. § 1983 ("§ 1983"), though he does not cite that statute or identify any basis for the court's jurisdiction in any of his proposed complaints, all of which are on a preprinted form. In each complaint, in the section seeking information about the acts complained of in his lawsuit, plaintiff either lists several statutes or causes of action or conclusorily references the presence of illegal investigations, violation of his privacy, or failure to comply with freedom of information requirements. Importantly, in each complaint he fails to provide any factual support for any of his purported claims. While he suggests that his claims relate to some other lawsuits, he does not identify the nature of those lawsuits or provide any other information about them. He also does not state the relief he seeks.
In the civil cover sheet filed with each of his complaints, plaintiff does identify civil rights and constitutional violations, among other things, as forming the basis for the complaint.
For example, in several cases, plaintiff lists, among other statutes or causes of action, violations of the First, Second, and Fourth Amendments, RICO, and Freedom of Information Law, as well as claims for fraud, harassment, and slander. See, e.g., Compl. (D.E. 1-1) 2, Solomon v. Drug Enforcement Agency, 5:18-CV-404-D; Compl. (D.E. 1-1) 2, Solomon v. U.S. Marshals, 5:18-CV-405-FL; Compl. (D.E. 1-1) 2, Solomon v. A.T.F., 5:18-CV-406-FL; Compl. (D.E. 1-1) 2, Solomon v. A.T.F. Firearms, 5:18-CV-412-D; Compl. (D.E. 1-1) 2, Solomon v. Drug Enforcement Agency D.E.A. (War on Drugs), 5:18-CV-530-D; Compl. (D.E. 1-1) 2, Solomon v. ATF, 5:18-CV-537-FL.
B. Applicable Legal Standards
1. Frivolity Review
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness).
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the complaint must "'state[ ] a plausible claim for relief that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to "less stringent standards" than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
2. Section 1983
Section 1983 provides a cause of action for alleged constitutional violations. To establish a claim under § 1983, a plaintiff must prove: "(1) the violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under the color of state law." Williams v. Studivent, No. 1:09CV414, 2012 WL 1230833, at *4 (M.D.N.C. 12 Apr. 2012) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). To show that a defendant acted under the color of state law, "'[t]he person charged must either be a state actor or have a sufficiently close relationship with state actors such that a court would conclude that the non-state actor is engaged in the state's actions.'" Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615-16 (4th Cir. 2009) (quoting DeBauche v. Irani, 191 F.3d 499, 506 (4th Cir. 1999)).
C. Discussion
Plaintiff's complaints are wholly devoid of any factual support. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D.N.C. 17 May 2016) ("[T]he principles requiring generous construction of pro se complaints are not without limits."), mem. & recomm. adopted, 2016 WL 3920213 (15 July 2016). Here, the court is unable to divine the nature of the claims asserted in any of plaintiff's complaints because of the lack of any factual basis presented for such claims. It is also not specified in the multi-defendant cases what conduct is attributable to which defendant. Under these circumstances, dismissal of the complaints as frivolous is warranted. Fetherson v. Blachnon, No. CV 0:16-3189-JFA-PJG, 2017 WL 1365114, at *2 (D.S.C. 9 Feb. 2017) (recommending dismissing as frivolous claims against defendant that are "conclusory and lack supporting facts"), rep. and recomm. adopted, 2017 WL 1344616 (12 Apr. 2017); Padilla v. Priest, No. 1:13-CV-287, 2013 WL 12156670, at *2 (E.D. Va. 25 June 2013) (dismissing case as frivolous where complaint was "devoid of any facts to support Plaintiff's allegations" and "contains precisely the type of naked assertions of wrongdoing which are unsupported by any factual enhancement and therefore necessitates dismissal"), aff'd, 543 F. App'x 353 (4th Cir. 2013).
D. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's complaints in each of the above-captioned actions be DISMISSED as frivolous.
II. PRE-FILING INJUNCTION
A. Background
Between 28 February 2013 and 21 November 2018, a period of approximately 9 months, plaintiff filed at least 43 cases in this court. Of the 19 of these cases that have been resolved, 16 did not survive frivolity review, 2 were voluntarily dismissed by plaintiff, and 1 was dismissed on a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. The remaining 24 cases were filed in the last 3 months of this period and include those recommended for dismissal herein.
See Nos. 5:13-CV-145-D; 5:13-CV-194-D; 5:13-CV-219-FL; 5:13-CV-247-BR; 5:13-CV-443-F; 5:14-CV-372-BO; 5:15-CV-173-BO; 5:15-CV-174-BO; 5:15-CV-529-FL; 5:16-CV-24-FL; 5:16-CV-41-BO; 5:16-CV-75-FL; 5:16-CV-76-FL; 5:16-CV-162-FL; 5:16-CV-163-D; and 5:16-CV-179-D.
See Nos. 5:15-CV-152-FL and 5:15-CV-153-FL.
See No. 5:13-CV-167-BO.
B. Applicable Legal Standards
Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), federal courts have "the authority to limit access to the courts by vexatious and repetitive litigants." Cromer v. Kraft Foods North America, Inc., 390 F.3d 812, 817 (4th Cir. 2004); see also Procup v. Strickland, 792 F.2d 1069, 1073-74 (11th Cir. 1986) (en banc). Moreover, federal courts have a constitutional obligation to protect against conduct that impairs their ability to carry out functions under Article III of the United States Constitution. Armstrong v. Koury Corp., 16 F. Supp. 2d 616, 620 (M.D.N.C. 1998) (citing In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984)). This obligation extends to pro se litigants. Id.
When a court considers issuing a pre-filing injunction, it must weigh all of the relevant circumstances, including: (1) the plaintiff's history of litigation and whether he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the plaintiff had a good faith basis for commencing the litigation; (3) the burden on other parties and the court as a result of the plaintiff's filings; and (4) the availability of alternative sanctions. Cromer, 390 F.3d at 818. Even if a litigant's conduct warrants such an action by the court, a pre-filing injunction must be "narrowly tailored to fit the specific circumstances at issue." Id. A pre-filing injunction may be deemed narrowly tailored when it allows "the litigant the option of filing additional federal court actions, if granted permission to do so by the district court." Id.
C. Discussion
As discussed, plaintiff has filed numerous repetitive and frivolous cases in this court. Each one contains legal claims that are wholly devoid of substance and factual support. Thus, the court is faced with a litigant engaged in a pattern of frivolous litigation. A pre-filing injunction that requires plaintiff to seek permission from the court prior to making subsequent filings appears to be necessary to curb further repetitive filing of frivolous cases by plaintiff. To ensure that prior to making a final decision on the issue of a pre-filing injunction the court has before it a fully developed record and that plaintiff has a full opportunity to be heard, the court will permit plaintiff to file a memorandum showing cause why such an injunction should not be entered in the event he opposes its entry or addressing any other issues relating to entry of such an injunction he deems appropriate.
D. Recommendation and Order
For the foregoing reasons, IT IS RECOMMENDED that a pre-filing injunction be entered against plaintiff in the form attached hereto that enjoins plaintiff from either filing any additional documents in these actions other than a notice of appeal and an application for leave to proceed in forma pauperis on appeal or instituting any new civil case in this court without first obtaining leave of this court.
IT IS ORDERED that, in the event plaintiff opposes entry of the recommended pre-filing injunction against him in the form proposed or any other form, he shall file by 17 December 2018 a memorandum showing cause why such an injunction should not be entered
against him. The memorandum may address such other issues relating to entry of a pre-filing injunction against plaintiff as he deems appropriate. Plaintiff may file such a memorandum even if he also files objections to the Memorandum and Recommendation pursuant to the notice below.
III. NOTICE OF RIGHT TO OBJECT TO MEMORANDUM AND RECOMMENDATION
IT IS DIRECTED that a copy of this Memorandum and Recommendation and Associated Orders be served on plaintiff or, if represented, his counsel. Plaintiff shall have until 17 December 2018 to file written objections to the Memorandum and Recommendation. The presiding District Judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections by the foregoing deadline, 17 December 2018, plaintiff will be giving up the right to review of the Memorandum and Recommendation by the presiding District Judge as described above, and the presiding District Judge may enter an order or judgment based on the Memorandum and Recommendation without such review, subject to the District Judge's consideration of any separate memorandum plaintiff files on the issue of entry of a pre-filing injunction. In addition, plaintiff's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding District Judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
This 3rd day of December 2018.
/s/_________
James E. Gates
United States Magistrate Judge PROPOSED PRE-FILING INJUNCTION No. __________ IN RE: PATRICK SOLOMON
PRE-FILING INJUNCTION
Between 28 February 2013 and 21 November 2018, Patrick Solomon ("Solomon") filed at least 43 cases in this court. Of the 19 of these cases that have been resolved, 16 did not survive frivolity review, 2 were voluntarily dismissed by Solomon, and 1 was dismissed on a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. The remaining 24 cases were filed in the last 3 months of this period, all of which were recommended on 3 December 2018 for dismissal in a memorandum and recommendation by a magistrate judge.
See Nos. 5:18-CV-390-D; 5:18-CV-391-FL; 5:18-CV-404-D; 5:18-CV-405-FL; 5:18-CV-406-FL; 5:18-CV-412-D; 5:18-CV-529-BO; 5:18-CV-530-BO; 5:18-CV-531-BO; 5:18-CV-532-FL; 5:18-CV-533-BO; 5:18-CV-534-FL; 5:18-CV-535-BO; 5:18-CV-536-FL; 5:18-CV-537-FL; 5:18-CV-538-D; 5:18-CV-561-H; 5:18-CV-562-D; 5:18-CV-563-D; 5:18-CV-564-FL; 5:18-CV-565-D; 5:18-CV-566-D; 5:18-CV-567-FL; and 5:18-CV-568-FL.
The memorandum and recommendation also recommended that a pre-filing injunction be entered against Solomon and provided Solomon the opportunity to file a memorandum showing cause why a pre-filing injunction should not be entered against him. Due to Solomon's continued filing of meritless litigation, entry of a pre-filing injunction that would appropriately limit Solomon's access to this court is warranted. The recommendation for a pre-filing injunction is therefore ADOPTED on the terms set forth below.
Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), federal courts have "the authority to limit access to the courts by vexatious and repetitive litigants." Cromer v. Kraft Foods North America, Inc., 390 F.3d 812, 817 (4th Cir. 2004); see also Procup v. Strickland, 792 F.2d 1069, 1073-74 (11th Cir. 1986) (en banc). Moreover, federal courts have a constitutional obligation to protect against conduct that impairs their ability to carry out functions under Article III of the United States Constitution. Armstrong v. Koury Corp., 16 F. Supp. 2d 616, 620 (M.D.N.C. 1998) (citing In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984)). This obligation extends to pro se litigants. Id.
When a court considers issuing a pre-filing injunction, it must weigh all of the relevant circumstances, including: (1) the plaintiff's history of litigation and whether he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the plaintiff had a good faith basis for commencing the litigation; (3) the burden on other parties and the court as a result of the plaintiff's filings; and (4) the availability of alternative sanctions. Cromer, 390 F.3d at 818. Even if a litigant's conduct warrants such an action by the court, a pre-filing injunction must be "narrowly tailored to fit the specific circumstances at issue." Id. A pre-filing injunction may be deemed narrowly tailored when it allows "the litigant the option of filing additional federal court actions, if granted permission to do so by the district court." Id.
Here, Solomon has filed numerous repetitive and frivolous cases in this court. Each one contains legal claims that are wholly devoid of substance and factual support. No apparent good faith basis has been demonstrated in his filings. Thus, the court is faced with an undeterred litigant engaged in a pattern of frivolous and vexatious litigation and which places a burden on the court from his repeated frivolous filings. A pre-filing injunction that requires Solomon to seek permission from the court prior to any subsequent filings is necessary to curb further repetitive filing of frivolous cases by Solomon and is the only apparent adequate remedy for Solomon's conduct.
Accordingly, it is ORDERED that Solomon is ENJOINED from filing any additional documents in any actions he previously filed in this court, the United States District Court for the Eastern District of North Carolina, that this court has dismissed other than a timely notice of appeal and timely application for leave to proceed in forma pauperis on appeal.
It is further ORDERED that Solomon is ENJOINED from filing any further actions in this court without pre-authorization from a district judge. Before commencing a new civil case, Solomon must file a motion for leave to file a complaint or, if he is attempting to remove an action from a state court, a motion for leave to file a notice of removal. He must attach to the motion for leave (1) his proposed complaint or notice of removal and (2) a copy of this order. Solomon must also either pay the court's filing fee or file an application for leave to proceed in forma pauperis. Upon the filing of these required documents, the Clerk of Court shall open a miscellaneous case. If a district judge deems the action potentially meritorious and determines that the proposed complaint is not vexatious or repetitive, the action may proceed, and the Clerk shall convert the action to a civil case. Otherwise, the case will be dismissed and sanctions against Solomon may be warranted.
SO ORDERED, this ___ day of December 2018.
/s/_________
United States District Judge