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Jarvis v. D'Andrea

United States District Court, M.D. Pennsylvania

August 8, 2014

DEREK N. JARVIS, Plaintiff,
v.
MARY E. D'ANDREA, Defendant

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, Magistrate Judge.

I. BACKGROUND.

On July 31, 2014, the pro se Plaintiff, Derek N. Jarvis, a resident of Silver Spring, Montgomery County, Maryland, filed a 15-page typed Complaint against sole Defendant Mary E. D'Andrea, former Clerk of Court for the U.S. District Court for the Middle District of Pennsylvania. (Doc. 1). Plaintiff also filed an Application for Leave to Proceed in forma pauperis. (Doc. 2).

Plaintiff indicates that his Complaint is a civil rights action under 42 U.S.C. § 1983 and on his civil cover sheet he states that he is alleging "Government sanctioned fraud, Fraud, conspiracy, negligence, failure to prevent [fraudulent] act(s)." Plaintiff indicates that he is seeking $1.5 million in damages. (Doc. 1-1). Plaintiff states that "Mary E. D'Andrea [former Clerk of Court] failed to prevent or remedy the fraudulent act(s) taken against [him] by the Clerk's Office at the Middle District of Pennsylvania, and actually facilitated the violations of [his] civil rights, depriving [him] of equal protection under the law, in violation of 42 U.S.C. § 1983." (Doc. 1, p. 1).

Plaintiff's allegations in his present Complaint concern his prior action he filed with this Court. Specifically, Plaintiff Jarvis filed a previous action with this Court against Defendants Analytical Laboratory Services, Inc., and Enterprise Leasing Company and, he alleged employment discrimination and retaliation. See Jarvis v. Analytical Laboratory Services, Civil No. 12-0574, M.D.Pa. On June 4, 2012, the District Court dismissed with prejudice Plaintiff Jarvis' Civil No. 12-0574 case. Plaintiff then filed a Motion for Reconsideration which the District Court denied on June 11, 2012. Plaintiff appealed the dismissal of his case as well as the denial of his Motion for Reconsideration and, on September 27, 2012, the Third Circuit affirmed both of the District Court's rulings. See Jarvis v. Analytical Laboratory Services, 2012 WL 4460756 (3d Cir. Sept. 27, 2012). Plaintiff then filed a Motion to Reinstate his case under Fed.R.Civ.P. 60(b), and on November 14, 2012, the District Court denied his Motion. On May 15, 2013, Plaintiff filed a Notice of Appeal regarding the District Court's November 14, 2012 Order. On August 12, 2013, the Third Circuit issued an Order finding that Plaintiff's Notice of Appeal was untimely, and dismissing Plaintiff's appeal for lack of jurisdiction. The Third Circuit stated that since the District Court entered judgment on November 14, 2012, Plaintiff had 30 days to file his Notice of Appeal, i.e., December 14, 2012. The Third Circuit also stated that it reached its "conclusion after careful consideration of all the filings in the District Court, including the Report and Recommendation of the Magistrate Judge." See Civil No. 12-0574, M.D.Pa., Doc. 21.

In his instant Complaint, Plaintiff alleges that "[t]he Clerk's Office in the Middle District, deprived [him] of his due process and civil rights laws, which caused [his] appeal [in Civil No. 12-0574, M.D.Pa.] to be filed late and dismissed by the Third Circuit as a result of the Clerk's Office failing to send out [the District Court's] November 14th [2012] Order in a timely' manner." (Doc. 1, p. 1). Plaintiff avers that not only did the Clerk's Office fail to send out the District Court's November 14, 2012 Order in a "timely" manner, the Clerk's Office never sent out the Order. In fact, Plaintiff states that he did not receive the District Court's November 14, 2012 Order dismissing his Civil No. 12-0574 case until May 2013, "which caused [his] appeal at the Third Circuit to be dismissed as UNTIMELY.'" ( Id., p. 2). Plaintiff further alleges that the judicial web site where he reviewed Orders issued in his case in Civil No. 12-0574 never contained the District Court's November 14, 2012 Order dismissing his case even though the District Court's other two Orders regarding his case were on the site. Plaintiff states that this "is a cause for concern and appears to be intentional to prevent [him] from appealing [his case in Civil No. 12-0574] within the (30) day deadline." Plaintiff alleges that the Clerk's Office in the Middle District is completely responsible for the delay regarding his Notice of Appeal since it never sent him the District Court's November 14, 2012 Order dismissing his case. Plaintiff states that he had to contact by telephone the Clerk's Office about his case and then discovered in May 2013, that his case was dismissed by the District Court on November 14, 2012. As such, Plaintiff claims that the Clerk's Office "has no excuse here and are liable under 42 U.S.C. § 1983." ( Id. ).

Plaintiff states that in addition to his due process rights, his equal protection rights under the Fourteenth Amendment were violated by the Clerk's Office, and that the Clerk's Office failed "to intervene and/or prevent act(s) in which (sic) caused his case [Civil No. 12-0574] to be dismissed as a direct result of failing to send out [the District Court's November 14, 2012] Order to [him]...." Plaintiff also avers that the Clerk's Office "actually facilitated the dismissal of [his Civil No. 12-0574] case" and "caused the deprivation of [his] equal protection rights under the law, violating [his] [Fourteenth] Amendment rights to the Constitution under 42 U.S.C. § 1983." ( Id., p. 3).

Plaintiff also states that he seeks relief under the Thirteenth Amendment as well as under 42 U.S.C. § 1985[1] and § 1986, since "federal Defendants have acted to establish, maintain, and perpetuate an environment that deprives pro se litigants of equal protection under the law and thus, discriminates against pro se litigants, dismissing cases without cause and taking advantage of laymen who are pro se in civil rights cases." Plaintiff further alleges that federal Defendants tried to cover up their pattern of violating the rights of pro se litigants by "blatantly violating federal rules of the court and statutes to dismiss cases against pro se litigants, in favor of Defendants many of whom they are connected to." Plaintiff states that Defendant D'Andrea conspired against him, based on his status as a pro se litigant, to prevent him from appealing his Civil No. 12-0574 case within the 30-day deadline. ( Id., pp. 4-5). Plaintiff alleges that the Clerk's Office failed to prevent the fraudulent and negligent acts since it failed to send him a copy of the District Court's November 14, 2012 Order dismissing his case. Plaintiff states that Defendant D'Andrea is liable since she had oversight over the Clerk's Office and its employees. ( Id., p. 7).

In addition to his constitutional claims against Defendant D'Andrea under § 1983, § 1982, § 1981, § 1985 and § 1986, Plaintiff asserts state law claims against Defendant for negligence, fraud, misrepresentation, fraudulent concealment, and slander.

As relief in his Complaint, Plaintiff requests compensatory damages, punitive damages as well as declaratory relief and injunctive relief. ( Id., pp. 5, 14-15). In particular, Plaintiff states that since his appeal in his Civil No. 12-0574 case was dismissed as untimely, he was not able to pursue his employment discrimination case in which he was seeking millions of dollars in damages. ( Id., pp. 5-6).

Since Plaintiff filed an Application for Leave to Proceed in forma pauperis, we can screen his Complaint under 28 U.S.C. § 1915(e)(2). See Henry v. Harrisburg Police Dept., Civil No. 1:13-CV-2740, M.D. Pa. ("[T]he screening requirements articulated in 28 U.S.C. § 1915(e)(2) apply with equal force to prisoner and civilian litigants alike."); Spangolo v. Watson, Civ. No. 08-1092, 2008 WL 2622909 (M.D. Pa. June 30, 2008). Plaintiff's Complaint has not yet been served on Defendant D'Andrea and the Court has not yet ruled on his Motion to proceed in forma pauperis.

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 Plaintiff's pleadings 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 ...

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