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Spangolo v. Special Directory Delivery Services

United States District Court, M.D. Pennsylvania

May 13, 2014

NICK SPANGOLO, Plaintiff,
v.
SPECIAL DIRECTORY DELIVERY SERVICES, et al., Defendants.

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, Magistrate Judge.

I. Background.

On May 5, 2015, Plaintiff Nick Spangolo, [1] a resident of Harrisburg, Dauphin County, Pennsylvania, and former resident of Hawaii, filed, pro se, the instant 8-page typed Bivens [2] civil rights Complaint alleging procedural due process violations under the Fifth and Fourteenth Amendments, pursuant to 28 U.S.C. § 1331. (Doc. 1). Plaintiff also raises claims under the False Claims Act ("FCA"), 31 U.S.C. § 3729(a)(7) and § 3730. Further, Plaintiff states that he is raising conspiracy claims to violate his constitutional rights under 42 U.S.C. § 1985(3).

Plaintiff also filed a Motion to proceed in forma pauperis. (Doc. 2). Plaintiff states that he is unemployed and that he receives SSI disability benefits in the amount of $720-$743 per month. Plaintiff indicates that he has no other assets.

Since Plaintiff Spagnolo is a pro se litigant, we must construe his Complaint liberally. See Higgs v. United States Attorney General, 655 F.3d 333, 339 (3d cir. 2011). As discussed below, we find that Plaintiff's Complaint is barred by the doctrine of res judicata based on his numerous previous cases against the IRS and SSA in which he raised the same claims. See Spagnolo v. U.S. I.R.S., Civ. No. 12-00255, 2012 WL 6629559 (D.Hawaii Dec. 18, 2012). In fact, Plaintiff is claiming that the Court in Spagnolo v. U.S. I.R.S., Civ. No. 12-00255, D.Hawaii, erred in dismissing his case for lack of standing and he now raises the same claims and seeks the same relief in his present case. Further, we do not find that Plaintiff has stated a claim under 42 U.S.C. § 1985(3) or a claim under Bivens against a proper federal official. Also, it is clear that Defendant IRS, a federal agency, is not amenable to being sued in a Bivens action.

Plaintiff's Complaint has not yet been served on Defendants. We are obliged to screen Plaintiff's Complaint. See Spangolo v. Watson, Civ. No. 08-1092, 2008 WL 2622909 (M.D. Pa. June 30, 2008).

II. Standards of Review.

1. Screening pro se in forma pauperis Complaints

As stated, Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2). Because Plaintiff has filed a Motion to Proceed in forma pauperis, we are obliged to screen Plaintiffs pleading under 28 U.S.C. § 1915(e) even though he is not an inmate and he is not complaining about prison conditions. As the Court stated in O'Connell v. Sobina, 2008 WL 144199, *6 (W.D. Pa.), "Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that 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)." In Palencar v. Cobler Realty Advisors, Civil No. 09-0325, M.D. Pa., 7-24-09 slip op. pp. 5-6, the Court stated:

Once it has been decided that a plaintiff should be accorded in forma pauperis status, the court then considers whether the complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B). Douris v. Huff, 2008 U.S.App. LEXIS 467, 469 (3d Cir. 2007); see also Douris v. Newtown Borough, Inc. 207 Fed.Appx. 242 (3d Cir. 2006). Section 1915(e)(2) provides: (2) 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 -
(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2). This statute "is designed largely to discourage the filing of, and waste of, judicial and private resources upon baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (stating that "[dismissals on these grounds are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering [frivolous] complaints"). While the original statute permitted sua sponte dismissal only if an action was frivolous or malicious, Congress included failure to state a claim and seeking monetary relief from a defendant immune from suit as additional grounds for sua sponte dismissal of in forma pauperis cases. Jones v. Bock, 127 S.Ct. 910, 920, 166 L.Ed.2d 798 (2007); § 1915(e)(2)(B) (2000 ed.); 28 U.S.C. § 1915(d)((1994 ed.).

See also Wright v. Loftus, Civil No. 09-1305, M.D. Pa., 11-20-09 Memorandum, p. 4; Klatch-Maynard v. ENT Surgical Associates, Civil No. 09-1963, M.D. Pa.

Thus, § 1915(e) obligates the Court to engage in a screening process when a person wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. See McCain v. Episcopal Hosp., 350 Fed.Appx. at 604. Section 1915(e)(2) applies to all in forma pauperis complaints, and not just to prisoners. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110, n. 10 (3d Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); Williams v. Marino, Civil No. 03-0632, M.D. Pa. January 12, 2004, Memorandum and Order, p. 4.

The Court uses the same standard to screen a complaint as it does for a 12(b)(6) motion to dismiss. See Sobina, 2008 WL 144199, at *3; Matthews v. Villella, 2009 WL 311177, *2 (M.D. Pa.); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

2. Motion to Dismiss Standard

In Reisinger v. Luzerne County, 712 F.Supp.2d 332, 343-344 (M.D. Pa. ...


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