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MESSA v. ALLSTATE INS. CO.

August 11, 1995

RUSBEIRO MESSA
v.
ALLSTATE INS. CO., its President and adjusters; FRANKFORD QUAKER GROCERY, its President and supervisors; COMMONWEALTH OF PENNSYLVANIA, Dept. of Labor and Industry, Secretary Thomas Foley, Referees I. Stander, W. Stevenson, Nancy Goodwin; Sec'y Workmen's Compensation Appeal Board Norman Haigh and Commissioners, in their official capacities; POST & SCHELL, P.C., and Stephen Potako, Esq., Marcie Stander, Esq.; STEINER, SEGAL and MULLER, James Muller, Esq.



The opinion of the court was delivered by: LOUIS H. POLLAK

 POLLAK, J.

 AUGUST 11, 1995

 Plaintiff, Rusbeiro Messa, has filed a pro se complaint seeking damages under 42 U.S.C. §§ 1983 and 1985(2), Title VII, the Americans with Disabilities Act, and various state common-law causes of action. Messa has filed a motion to proceed in forma pauperis. Because Messa asserts that his debts substantially exceed his assets, and that his income is very small, and because there is no reason not to believe these claims, his motion to proceed in forma pauperis is granted.

 However, the statute granting courts the power to allow plaintiffs to proceed in forma pauperis, 28 U.S.C. § 1915, also states that the court "may dismiss the case if satisfied that the action is frivolous or malicious," 28 U.S.C. § 1915(d), a provision which has been interpreted to mean that the court may dismiss the case if recovery is precluded as a matter of law. See Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990) (stating that the class of cases appropriately dismissed as frivolous includes those in which "it is readily apparent that the plaintiff's complaint lacks an arguable basis in law or that the defendants are clearly immune from suit") (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)).

 Messa's complaint, as presently written, does indeed lack an arguable basis in law. Some of his claims rest on the same facts as were at issue in a previous case brought by him before this court, which was dismissed in April 1993 for failure to state a claim upon which relief can be granted, see Messa v. Foley, 1993 U.S. Dist. LEXIS 4519, No. 92-Civ-1887 (E.D. Pa., April 8, 1993), aff'd 17 F.3d 1430 (3d Cir. 1994), cert. denied, 114 S. Ct. 2745, 129 L. Ed. 2d 864 (1994), reh'g denied, 115 S. Ct. 25, 129 L. Ed. 2d 924 (1994), and so are barred by res judicata. Messa's remaining claims are destined to fail for much the same reasons as those for which his claims were dismissed in the earlier proceeding before this court. As it is certain that these claims will not succeed, they will be dismissed under § 1915 (d).

 I. FACTS

 Messa's claim involves a complex series of events, including two disabling accidents, one in 1985 and one in 1986; a series of workmen's compensation hearings in 1987, 1988, 1989, 1990, and 1994; and state-court proceedings occurring in 1992 and 1994, as well as the previous proceedings before this court. The defendants Messa names include a group of employees of the state of Pennsylvania involved in workmen's compensation proceedings and policies; Frankford Quaker Grocery, Messa's employer until 1986, and Frankford's workmen's compensation carrier, Allstate Insurance Company, as well as certain of the employees of both firms; Post & Schell, P.C., attorneys for Frankford and Allstate, and several attorneys for that firm; and James Muller, Messa's former attorney, as well as Muller's law firm, Steiner, Segal and Muller. One of these defendants, Allstate, appears from the caption of the complaint to be either the parent firm of Northbrook, the insurer named in Messa's previous action, or a successor firm.

 I will quote the facts alleged as occurring before 1988 from the memorandum I wrote dismissing Messa's previous action, as those allegations appear to be substantially repeated here:

 
From the papers, we know that a pre-termination hearing was scheduled before Referee Stander for March 13, 1987, but was postponed and apparently never rescheduled. Referee Stander nonetheless apparently granted supersedeas by mail on May 23, 1987.
 
On August 26, 1987, a full hearing was scheduled before Referee Stander. The purpose of this hearing is unclear. Plaintiff suggests in his papers that both the 1985 and 1986 injuries were discussed, yet plaintiff had not yet filed a claim for his 1986 injuries with the Department of Labor and Industry.
 
On December 18, 1987 plaintiff had another hearing before Referee Stander. Again, the purpose of this hearing is not clear. Plaintiff states, though, that he began to argue that the Workmen's Compensation Act had been violated. Referee Stander refused to hear argument on that issue and instructed plaintiff to send his evidence by mail.
 
In January 1988, plaintiff filed his claim with the Department of Labor and Industry for his 1986 injuries. At some point, plaintiff must have received compensation benefits for these injuries, because on June 27, 1988 Referee Wallace Stevenson suspended plaintiff's benefits for his 1986 injuries. At the same hearing, Referee Stevenson reinstated plaintiff's benefits for his 1985 injuries. Referee Stevenson adopted the order proposed by plaintiff's counsel -- proposed allegedly without plaintiff's knowledge -- and ordered payment of the withheld compensation retroactive to January 13, 1988, the date of Referee Stander's denial of plaintiff's second motion for reconsideration. Referee Stevenson did not order payment of the compensation withheld during the period between the ...

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