Opinion
Civil Action No. 2:18-cv-00305
04-09-2018
ROGER WILSON, Plaintiff, v. DELTA AIRLINES, SHARE BUILDERS.COM, Defendants
United States District Judge Nora Barry Fischer REPORT AND RECOMMENDATION
I. RECOMMENDATION
The Court respectfully recommends that Plaintiff's Complaint (ECF No. 9) filed on April 2, 2018, be sua sponte dismissed with prejudice prior to service under 28 U.S.C. §1915(e)(2) because the action is frivolous.
II. REPORT
A. Procedural Background
Within a four-day span, Plaintiff, Roger Wilson, filed ten law suits, pro se, seeking Leave to Proceed in forma pauperis. He voluntarily withdrew four of the cases, Wilson v. Federal A/G Maryland et al., 2:18-cv-00304; Wilson v. Memphis F.C.I. et al., 2:18-cv-00312; Wilson v. FCI Cumberland, 2:18-cv-00313; and Wilson v. FCI Gilmer, et al., 2:18-cv-00315 for "lack of venue". The six remaining cases filed during that time period are: Wilson v. Delta Airlines, et al., 2:18-cv-00305; Wilson v. Eyster et al., 2:18-cv-00306; Wilson v. McKeesport Police Dept., el al, 2:18-cv-00307; Wilson v. U.S. Gov't/Federal A/g et al., 2:18-cv-00308; Wilson v. Healey, 2:18-cv-00311; and Wilson v. United States of America et al., 2:18-cv-00314.
Also pending with the court is Wilson v. U.S. Gov't, 2:17-01467, which was filed on November 13, 2017, for which Wilson paid the filing fee. The court also notes that Wilson also filed Wilson v. United States and Office of Atty General, 2:17-cv-00301 on March 8, 2017, for which he paid the filing fee. This case was dismissed pursuant to FRCP 12(b)(1), with prejudice, as amendment would be futile. Wilson filed a notice appealing this decision to the Third Circuit Court of Appeals. (Id. at ECF No. 29).
B. Legal Standard
Plaintiff is proceeding pro se and as such, he is entitled to liberal construction of his submissions in federal court. This means that the Court must liberally construe the factual allegations of the complaint because pro se pleadings, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erikson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, the court should "'apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'" Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). However, pro se litigants are not free to ignore the Federal Rules of Civil Procedure. Pruden v. Long, Civ. A. No. 3:CV-06-2007, 2006 WL 3325439, *1 (M.D. Pa. Oct. 24, 2006).
Pursuant to 28 U.S.C. §1915(a), Plaintiff requested and has been granted leave to proceed in forma pauperis. Thus, his allegations must be reviewed in accordance with the directives provided in 28 U.S.C. §1915(e). Section 1915(e)(2), as amended, requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B). "[A] complaint...is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hawkins v. Coleman Hall, C.C.F., No. 11-3467, 2011 WL 5970977, at *2 (3d Cir. Nov. 30, 2011) ("An appeal is frivolous when it lacks an arguable basis either in law or fact." (citing Neitzke, supra). Thus, under §1915(e)(2)(B), courts are "authorized to dismiss a claim as frivolous where 'it is based on an indisputable meritless legal theory or where the factual contentions are clearly baseless.'" O'Neal v. Remus, No. 09-14661, 2010 WL 1463011, at *1 (E.D. Mich. Mar. 17, 2010) (quoting Price v. Heyrman, No. 06-C-632, 2007 WL 188971, at *1 (E.D. Wis. Jan. 22, 2007) (citing Neitzke, 490 U.S. at 327)).
Although the Third Circuit has not ruled on the issue, several district courts in the Third Circuit have considered the question of whether this revised in forma pauperis statute applies only to prisoners and have concluded that it does not. Leatherman v. Obama, C.A. No. 12-1486, 2012 WL 5398912 (W.D. Pa. Nov. 2, 2012) (Fisher, J.), adopting R&R 2012 WL 5398856 (W.D. Pa. October 22, 2012); Harrison v. Shapiro, No, 97-2133, 1997 WL 197950, at * 1 (E.D. Pa. 1997); Jones v. North Atlantic Treaty Organization, No. 98-1185, 1998 WL 136511, at *1 n. 1 (E.D. Pa.1998); McAllen v. Attic Away From Home, No. 00-941, 2000 WL 1752618, at *2 n. 7 (D. Del. 2000). Each of these courts has found the mention of the word "prisoner" to be a typographical error, and that the Congress meant the statute to read "person." I find this reasoning to be persuasive. See also, Anyanwutaku v. Moore, 151 F.3d 1053 (D.C. Cir.1998); Mitchell v. Farcass, 112 F.3d 1483, 1484 (11th Cir.1997); Powell v. Hoover, 956 F.Supp. 564, 568 (M.D. Pa.1997).
Dismissal under Section 1915(e)(2) is "often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering [frivolous] complaints[,]" Neitzke, 490 U.S. at 324, or complaints which fail to state a claim on which relief may be granted.
In determining whether a complaint fails to state a claim upon which relief may be granted for purposes of Section 1915(e)(2)(B), courts apply the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 F. App'x 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The United States Court of Appeals for the Third Circuit has expounded on this standard in light of its decision in Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) (construing Twombly in a civil rights context), and the Supreme Court's decision in Iqbal:
After Iqbal, it is clear that conclusory or "bare-bones" allegations will no longer survive a motion to dismiss: "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a plaintiff must show that the allegations of his or her complaints are plausible. See Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n. 3.Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In making this determination, the court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). "To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and §1915([e]) both counsel dismissal." Neitzke, 490 U.S. at 328 (footnote omitted).
C. Plaintiff's claims
Presently before the Court is Wilson v. Delta Airlines and Share Builders.com, 2:18-cv-00305, which the court notes is far from a model of clarity as it lacks specificity in its detail and relief sought. Wilson is pursuing a claim for "Fraud 18 USC 1341". (ECF No. 9, p. 4). In support of his alleged 18 U.S.C.§1341 criminal mail fraud claim against the Defendants, Wilson alleges, in toto, that "Delta Airlines and Share Builders.com stole stock off me that I bought in 2006 Dec. I have an expert witness." (Id. at 5). He seeks 25 million dollars. (Id. at 5). Because of the early stage of this litigation, service on the Defendants has not yet been ordered or effectuated.
Plaintiff alleges that defendants violated 18 U.S.C. § 1341, a statute directed at criminal liability for mail fraud. A criminal statute does not give rise to civil liability, unless the statute expressly provides a private cause of action. Simpson, Jr. v. The City of Coatesville, No. 12-4803, 2015 WL 7251546 at *6 (E.D. Pa. Nov. 17, 2015) (citing Frank B. Fuhrer Wholesale Co. v. MillerCoors LLC, No. 13-1155, 2013 WL 5875819 *6 (W.D. Pa. Oct. 30, 2013)). Section 1341 does not provide an express private cause of action; therefore, "there is no private cause of action for violation of the federal mail and wire fraud statutes." Addlespurger v. Corbett, 461 Fed. App'x 82,87 (3d Cir. 2012); Jones v. TD Bank, 468 Fed. App'x 93(3d Cir. 2012) (finding that the federal mail fraud statute did not provide plaintiff with a private right of action); Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir. 1999) (joining the Fifth and Sixth Circuits in finding no private cause of action for mail fraud); Marley v. Donahue, 133 F.Supp.3d 706 (D. N.J. 2015).
Plaintiff's claim is based on an indisputably meritless legal theory and should therefore be dismissed, sua sponte, pursuant to 28 U.S.C. §1915(e)(2). Neitzke, 490 U.S. at 328. Therefore, the court recommends that the complaint be dismissed as frivolous, with prejudice, as it would be futile for Plaintiff to amend his claims. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
III. Conclusion
For the reasons set forth herein, it is respectfully recommended that the Complaint be dismissed with prejudice, as frivolous pursuant to the screening provisions of 28 U.S.C. 1915(e)(2).
Plaintiff is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed. R. Civ. P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by April 26, 2018. Failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Dated this 9th day of April, 2018.
s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge cc: Honorable Nora Barry Fischer
(via CM/ECF electronic notification)
ROGER WILSON
516 Sinclair Street, Apt. 501
McKeesport, PA 15132
(via U.S. First Class mail)