IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
May 4, 2009
TED A. MCCRACKEN, PLAINTIFF,
DAIMLER CHRYSLER MOTORS COMPANY LLC, ET AL., DEFENDANTS
The opinion of the court was delivered by: Genee.k. Pratter, J.
Pro se Plaintiff Ted A. McCracken, a prolific litigant in this*fn1 and other federal courts across the country, was diagnosed with thyroid cancer in 2005. He seeks damages arising from his disease based on his allegation that vehicles made by Defendant Chrysler Motors LLC ("Chrysler Motors")*fn2 did not contain the protections necessary to prevent his exposure to dangerous levels of airborne radiation when traveling at speeds of 65-70 miles per hour. Mr. McCracken maintains that exposure to radiation while driving and riding in cars at highway speeds during the 1960s and 1970s caused his cancer.
Chrysler Motors now asks the Court to dismiss Mr. McCracken's only remaining claims -- for strict liability and negligence -- as being frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)*fn3 and due to Mr. McCracken's alleged failure to prosecute as required by Rule 41(b) of the Federal Rules of Civil Procedure.*fn4
For the following reasons, the Court will grant Defendants' Motion.
I. Legal Standard
Mr. McCracken has been extended in forma pauperis status. His financial status was his primary credential for the Court's initial consideration of his request in that regard. The applicable statute, 28 U.S.C. § 1915(a), also mandates that "the court assesses the complaint under [§ 1915(e)] to determine whether it is frivolous." Roman v. Jeffes. 904 F.2d 192, 194 N.1 (3d Cir. 1990). Section 1915(e) states: "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that...the action or appeal...is frivolous or malicious." (emphasis added). "The frivolousness determination is a discretionary one," and trial courts "are in the best position" to determine when an indigent litigant's complaint is appropriate for summary dismissal. Denton v. Hernandez, 504 U.S. 25, 33 (1992). District courts "may dismiss as frivolous claims based on an indisputably meritless legal theory and claims whose factual contentions are clearly baseless." Roman, 904 F.2d at 194 (citing Neitzke v. Williams, 490 U.S. 319 (1989)). "In making its [frivolity] determination, the Court is not bound to accept without question the truth of Plaintiff's allegations simply because they cannot be rebutted by judicially noticeable facts." Fields v. Garner, Civ. No. 08-5794, 2009 U.S. Dist. LEXIS 1887, at *3 (E.D. Pa. Jan. 5, 2009). The Court has the "unusual power to 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. "A district court can dismiss a claim as factually frivolous where 'the facts alleged rise to the level of the irrational or the wholly incredible.'" Jones v. Republican Nat'l Comm., Civ. No. 04-4973, 2004 U.S. Dist. LEXIS 23332, at *3 (E.D. Pa. Nov. 15, 2004) (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)). Such is the case because "paupers filing pro se petitions are not subject to the financial considerations-filing fees and attorney's fees-that deter other litigants from filing frivolous petitions. Every paper filed [in a federal court], no matter how repetitious or frivolous, requires some portion of the institution's limited resources." In re McDonald, 489 U.S. 180, 185 (1989).
II. Factual Background
Mr. McCracken alleges that he was diagnosed with thyroid cancer on May 19, 2005 and that based upon "several medical treatises consulted, the only known cause of thyroid cancer is radiation exposure of the type and quantity generated, propelled and released at the numerous U.S. nuclear facilities throughout the country." Complaint ¶ 16(2).*fn5 He further alleges that his thyroid cancer can be attributed to his use of Chrysler Motors' vehicles 30-40 years prior to his May 19, 2005 cancer diagnosis because he believes "that the low level of radiation normally measured in the ambient air multiples [sic] exponentially when traveling at speeds up to 65-70 mph." Id. ¶ 17. Mr. McCracken contends that the level of radiation in the ambient air somehow transitions from safe to dangerous when driving at highway speeds. Accordingly, he argues that Chrysler Motors should have designed and manufactured its vehicles with "Lucite glass, or lead shielding in the front of the vehicle so to avoid [the driver or passenger from] receiving the blunt force of the radiation." Id. ¶ 19.
Specifically, Mr. McCracken asserts that he was exposed to excess radiation in his grandfather's Chrysler Motors cars as well as his own vehicles. His grandfather owned at least four Chrysler Motors vehicles during Mr. McCracken's childhood, and Mr. McCracken purchased a 1965 Plymouth convertible and a 1960 Plymouth four-door sedan from a private party in New York in or around May 1972.
Mr. McCracken has filed at least 13 similar complaints in the federal court system against various defendants, including United States presidents, airlines, energy companies, and other automobile manufacturers. These complaints all allege that the activities of the widespread defendants exposed Mr. McCracken to radiation in the ambient air thus causing his thyroid cancer. At least six of these cases have been terminated by the courts either as frivolous and malicious or for Mr. McCracken's failure to prosecute.*fn6
This Court has original jurisdiction over matters in which there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. An individual is a citizen of a state where he maintains his domicile, which is determined as of the moment the complaint is filed. Freepor-McMoRan, Inc. v. K N Energy, Inc. 498 U.S. 426, 428 (1991). A person may be a citizen of only one state, Arins v. Hannum, 497 F. Supp. 930, 942 (E.D. Pa. 1980), whereas a corporation can be a citizen of multiple states. See 28 U.S.C. § 1332(c)(1). For purposes of diversity, residency in a particular state is insufficient to establish citizenship. Residency must be coupled with an intent to remain in the particular state indefinitely. Krasnov v. Dinan, 465 F.2d 1298, 1301 (3d Cir. 1972).
Although in his Complaint Mr. McCracken claims residency in both Pennsylvania and New York, he maintains that he is a Pennsylvania citizen. See Response, Ex. F at 11:18-21 (Sept. 15, 2008 McCracken deposition). During his deposition, Mr. McCracken produced a Pennsylvania driver's license that expired in 2005, McCracken-3 (attached to Response, Ex. F), and he testified that he had a Pennsylvania driver's license when he filed this case, though it has since been suspended. Response, Ex. F at 28:21-29:22. Mr. McCracken has always kept his vehicles registered in Pennsylvania with Pennsylvania insurance issued through an insurance agent in the state. Id. at 27:5-28:20. Further, he operated a corporation out of the North Wales, Pennsylvania address provided to the Court. Id. at 31:10-32:11. In December 2006, six months before filing his Complaint in this action, Mr. McCracken was employed at a Shop Rite in East Norriton, Pennsylvania. Id. at 33:16-34:15. He is registered to vote in Pennsylvania. Id. at 32:14-33:9.
Mr. McCracken testified in his deposition that the Wilmington, Delaware address he used in signing this Complaint was a privately owned mailbox which he rented. Response, Ex. F at 12:2-6. He was adamant that he "was not living at Concord Pike, because it is a post office box." Id. at 20:11-13.
The information presented by Mr. McCracken during his deposition establishes that he was a Pennsylvania citizen when he commenced this case. It is uncontested that Chrysler Motors is a Delaware corporation with its principal place of business in Michigan. Mr. McCracken seeks compensatory damages in excess of $960,000 and punitive damages of $86 million. See Complaint at 9, 11. Accordingly, the Court finds that diversity jurisdiction exists.
Mr. McCracken maintains that the particular type of glass used by Chrysler Motors for its windshields in the 1960s and 1970s exposed him to radiation already in the ambient air, though only when he was traveling at highway speeds, and that such exposure caused his thyroid cancer some 40 years later. See, e.g., Complaint ¶¶ 12, 16(1), 16(2)-20. Mr. McCracken's allegation that being in a car traveling at speeds above 65 miles per hour somehow caused his cancer 40 years later is certainly difficult to comprehend. When considered in relation to Mr. McCracken's contradictory prior admissions attributing his alleged radiation exposure to a laundry list of sources, the allegations in this Complaint are revealed to be completely frivolous.
Mr. McCracken's decades of litigation alleging radiation exposure and other variable harms include a number of assertions contradicting the allegations in this case. In considering whether to dismiss a case as frivolous, a court may take note of court filings in other cases. See Azubuko v. Mass. State Police, Civ. No. 04-4176, 2004 U.S. Dist. LEXIS 23053 (E.D. Pa. Nov. 12, 2004); In re Powell, 851 F.2d 427, 434 (D.C. Cir. 1988) ("Both the number and content of the filings bear on a determination of frivolousness or harassment.") In McCracken v. Continental Airlines, Civ. No. 97-57 (N.D.N.Y.), Mr. McCracken alleged that he was exposed to radiation while a passenger in a Continental Airlines flight when the plane flew "directly into [a] beam of acutely hazardous ionized radiation," allegedly "emitted from particle accelerator housed at Cornell University" in "lethal doses" visible to his naked eye. Motion, Ex. L ¶¶ 1, 19.*fn7
In McCracken v. Entergy Nuclear Indian Point, Civ. No. 08-2670 (E.D.N.Y.), Mr. McCracken claimed that his cancer was caused by radiation exposure from "extraordinary nuclear contamination" based on "multiple nuclear incident(s)" at Indian Point Nuclear facility in New York that released airborne ions visible to the naked eye from December 1977 to December 1987 and "continuing unabated at least until the date of the filing of [the] complaint," June 23, 2008. Motion, Ex. M ¶¶ 1, 15, 16.*fn8 In McCracken v. Beryllium Int'l, Civ. No. 97-7484 (S.D.N.Y.), Mr. McCracken asserted claims against more than 40 defendants, including United States Presidents Ronald Reagan, George Bush, and Bill Clinton, alleging harm from earlier "nuclear" assaults going back to 1981. Motion, Ex. N ¶¶ 59-70.*fn9 Such cases are only three examples of the many, many cases Mr. McCracken has filed as a result of decades of alleged bombardment with radiation.*fn10
Based on a careful evaluation of the complaint filed in this case and related court filings from this and other districts, the Court is convinced "that the facts alleged rise well beyond unlikely to the level of fanciful, fantastic, and wholly incredible." Nester v. Allen, Civ. No. 06-2817, 2006 U.S. Dist. LEXIS 51479, at *6 (E.D. Pa. July 26, 2006). The Court cannot find a meritorious factual basis for this action.
For the reasons state above, the Complaint is therefore frivolous and will be dismissed. An appropriate Order follows.
GENE E.K. PRATTER United States District Judge