Civil Action No. 19-430
District Judge Bissoon
ECF Nos. 27, 28 & 29 REPORT AND RECOMMENDATION
It is respectfully recommended that Plaintiff's Complaint, which was commenced in forma pauperis, be dismissed with prejudice pursuant to 28 U.S.C. § 1915 (e) (2)(B), as frivolous, for failure to state a claim upon which relief may be granted, and for lack of subject matter jurisdiction. The Court further recommends that in light of its recommended dismissal of the above captioned case with prejudice, that Plaintiff's Motions for Issuance of Subpoena (ECF No. 27), to Appoint Counsel (ECF No. 28), and to Enter Evidence (ECF No. 29) be dismissed as moot.
Plaintiff, Michael Edward Sampson ("Plaintiff" or "Sampson") filed his pro se Complaint against Defendants Davidson Inventor Service, John Delissio and FNU Davidson in the United States District Court for the Eastern District of Texas. The Texas Federal District Court transferred the case to this Court because the events complained of occurred in Pittsburgh and all Defendants are here. (ECF No. 4.)
Plaintiff seeks return of $700.00 paid to Defendants for a patent search, computer aided drafting designs, and assistance with filing for a worldwide patent for a device that is "a fueless [sic] way to charge any personal electronics, charge, operate and run for free, any electric vehicle, with my invention of free electricity." (ECF No. 1 at 6.) In addition to his request for the return of his $700.00, Plaintiff seeks punitive damages "equal to sales of free electricity lost." (ECF No. 1 at 4.)
On May 1, 2019, the Court issued a Memorandum Order dismissing Plaintiff's Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B), as frivolous, and for failure to state a claim upon which relief may be granted. The Court further ordered that Plaintiff file an Amended Complaint and include such factual details as to make his allegations "plausible" pursuant to the requirements of Twombly.
Plaintiff timely filed an Amended Complaint and referenced a related action filed in the United States District Court for the Southern District of Georgia, Savannah Division at Civil Action No 4:19-cv-90. The Georgia civil action is identical to the one presently at bar but for the naming of different Defendants, suggesting that Plaintiff is attempting to collect his $700 from a variety of Defendants located in various jurisdictions, but relying upon identical allegations. In the Georgia civil action, the Magistrate Judge dismissed Plaintiff's Complaint for many of the same reasons that the Court recommends dismissal of the case at bar.
The court must liberally construe the factual allegations of Plaintiff's Complaint because pro se pleadings, "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) (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)).
This Court must review Plaintiff's Complaint in accordance with the amendments promulgated in the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996). Although Plaintiff's claims do not appear to arise from an incarceration, the amendments to the PLRA codified as 28 U.S.C. § 1915 apply to non-incarcerated individuals who have been granted in forma pauperis ("IFP") status. See Powell v. Hoover, 956 F. Supp. 564, 566 (M.D. Pa. 1997) (holding that federal in forma pauperis statute is not limited to prisoner suits); Floyd v. United States Postal Serv., 105 F.3d 274, 276 (6th Cir. 1997) (holding that non-prisoners have the option to proceed in forma pauperis), superseded on other grounds by Callihan v. Schneider, 178 F.3d 800 (6th Cir. 1999). Pursuant to 28 U.S.C. § 1915(a), Plaintiff is eligible for and has been granted leave to proceed in forma pauperis. (ECF No. 14.) Thus, his allegations must be reviewed in accordance with the directives provided in 28 U.S.C. § 1915(e).
Pertinent to the case at bar is the authority granted to federal courts for the sua sponte dismissal of claims in IFP proceedings. Specifically, § 1915(e), 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., 453 F. App'x 208, 210 (3d Cir. 2011) ("An appeal is frivolous when it lacks an arguable basis either in law or fact.") (citing Neitzke, 490 U.S. at 325). 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)).
A complaint must be dismissed pursuant to Fed. R. Civ. P. 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)). 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(d) both counsel dismissal." Neitzke, 490 U.S. at 328 (footnote omitted).
In reviewing complaints under 28 U.S.C. § 1915(e), a federal court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). 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)). In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester Cnty Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)).
Although the Plaintiff went to great effort to state a plausible claim for relief, the Amended Complaint makes clear that Plaintiff's claims are frivolous. He alleges nothing as to how the Defendants named here have stolen or infringed upon his intellectual property that would generate "free electricity," other than a conclusory allegation that they have done so. Instead, Plaintiff states only that Defendants have committed "criminal theft" and "theft by fraud" because of his $700 payment to them. His additional facts suggest that Plaintiff submitted his ideas to Defendants for initial review and when Plaintiff would not agree to terms for continuing the business relationship, Defendants "terminate[d] the contract and erase[d] the Inventor/Plaintiff file." (ECF No. 24 at 9.) Plaintiff also provides a sketched diagram of a "35 Day Elgin Wind Up Wall Clock" which requires a winding key that bears no relationship to Plaintiff's patentable "self charging cellphones," adding that it is based on "planetary drive/torque system" and, like a "marine battery," will "trickle-charge" a cellphone. (ECF No. 24-1 at 1.) Clearly, the Amended Complaint fails to raise a cognizable federal claim in law or fact.
Moreover, the Court has a continuing duty to dismiss an action over which it lacks jurisdiction. 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."); see generally Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (federal courts have no power to consider claims over which they lack subject matter jurisdiction). A plaintiff may avail itself a subject matter jurisdiction in one of two ways: A claim must either "arise under federal law," or be established by diversity jurisdiction. 28 U.S.C. §§ 1331 & 1332. Here, Plaintiff's claims do not arise under federal law but sound in breach of contract for the return of $700 for failure to provide for a patent search, computer aided drafting designs, and assistance with filing for a worldwide patent. Similarly, his allegations do not invoke the Court's diversity jurisdiction which is conferred where the matter in controversy exceeds $75,000 and is between "citizens of a State and citizens or subjects of a foreign state." While Plaintiff and Defendants reside in different states, Plaintiff sets forth no allegations which support the imposition of damages over $700. Although Plaintiff alleges that he has lost over twelve (12) months of "potential and reasonable sales of the manufacturing rights not limited to 'First Truly Wireless' cellphone charger/batteries but also, Independent Life Medical, survival and emergency devices and products and the actual lives of people that may have been saved from benefit of such devices . . . ," this statement assumes that Plaintiff's invention is viable and eventually patentable. (ECF No. 24 at 10.) Likewise, Plaintiff states the amount of damages from the "potential and reasonable sales" to be in the amount of $400 million. (ECF No. 24 at 5.) Plaintiff's alleged damages are wholly speculative and cannot support diversity jurisdiction. Therefore, the Court should dismiss this action for lack of subject matter jurisdiction.
Plaintiff states that this is the amount he gave one of the Defendants who asked how much Plaintiff wanted for his invention. (ECF No. 24 at 8.) --------
For the foregoing reasons, it is respectfully recommended that Plaintiff's Complaint, which was commenced in forma pauperis, be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B), as frivolous, for failure to state a claim upon which relief may be granted, and for lack of subject matter jurisdiction.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights. The Court further recommends that in light of its recommended dismissal of the above captioned case with prejudice, that Plaintiff's Motions for Issuance of Subpoena (ECF No. 27), to Appoint Counsel (ECF No. 28), and to Enter Evidence (ECF No. 29) be dismissed as moot.
Dated: June 11, 2019
BY THE COURT
LISA PUPO LENIHAN
United States Magistrate Judge cc: Michael Edward Sampson
Gregg County Jail
101 E. Methvin Street
Longview, TX 75601