United States District Court, M.D. Pennsylvania
December 9, 2014
BRUNO MAZZEO UNUM, et al., Plaintiff,
EXPERT WITNESS, et al., Defendants
Submitted this 9th day of December, 2014.
Harris Snecklor Mazzeo-Unum, Plaintiff, Pro se, Scranton, PA.
Bruno Giovanni-Michel Mazzeo-Unum, Plaintiff, Pro se.
Ariel Samantha Giovan Mazzeo-Unum, Plaintiff, Pro se.
Christian Antonio Toro Mazzeo-Unum, Plaintiff, Pro se.
Martin C. Carlson, United States Magistrate Judge. Judge Mannion.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge.
I. Statement of Facts and of the Case
The plaintiff, Bruno Mazzeo Unum, is a prolific, if unintelligible and unsuccessful litigant in federal court. See, e.g., Mazzeo-Unum v Soc. Sec. Admin., 1:11-CV-983 GLS/RFT, 2011 WL 5554364 (N.D.N.Y. Oct. 4, 2011) report and recommendation adopted sub nom. Unum v. Soc. Sec. Admin., 1: 11-CV-983 GLS/RFT, 2011 WL 5554310 (N.D.N.Y. Nov. 15, 2011); Mazzeo-Unum v. Dep't of Transp., 1: 12-CV-1856, 2013 WL 2636159 (N.D.N.Y. June 12, 2013); Unum ex rel. Neuro-Med. Diagnostic Care Servs. P.C. v. Dep't of Transitional Assistance, 1: 13-CV-1593 MAD/ATB, 2014 WL 1572799 (N.D.N.Y. Apr. 18, 2014). In the past, Unum's pleadings have been aptly characterized as " ambiguous hand-written diatribes, photocopied excerpts from various publications, newspaper articles and obituaries, medical degree certificates . .., photocopied photographs, advertisements, New York State Library search results, and the U.S. Railroad distance table, just to name a few, " Mazzeo-Unum v. Dep't of Transp.,
1: 12- CV-1856, 2013 WL 2636159 (N.D.N.Y. June 12, 2013), or described as " largely unintelligible and incoherent." Unum ex rel. Neuro-Med. Diagnostic Care Servs.
P.C. v. Dep't of Transitional Assistance, 1:13-CV-1593 MAD/ATB, 2014 WL 1572799 (N.D.N.Y. Apr. 18, 2014) .
This Unum's fourth recent filing in this Court, Unum's two prior cases having been dismissed within the past month as frivolous. See e.g., Unum v. Expert Witness, Civ. A. No. 3: 14-CV-1944, 2014 WL 5593340 (M.D. Pa. Oct. 28, 2014); Unum v. U.S. Dep't of Justice, 3: 14-1754, 2014 WL 4955263 (M.D. Pa. Oct. 2, 2014); Unum v. Lake Mead Recreational Area, CIV.A. 3: 14-1632, 2014 WL 4437672 (M.D. Pa. Sept. 9, 2014). Unum's latest foray into federal court began on December 9, 2014, when the plaintiff filed a 9-page pro se, in forma pauperis complaint with this Court, together with a compendium of exhibits that were so voluminous that they could not be scanned into Court's electronic filing system (Doc. 1 and Docket Annotation.) The complaint appears to name as many as 10 persons with the surname of Unum as plaintiffs, Michel, Giovanni, Bruno, Toro, Antonio, Christian, Giovavia, Ariel, and Samantha, and Harris Snecklor. It is entirely unclear whether these are alternate terms of address for a single person, or whether the complaint is actually filed on behalf of multiple individuals all of whom happen to be named Unum. The complaint then names more than 40 defendants. These defendants include an odd and eclectic array of universities, hospitals, state and federal government agencies, as well as inanimate objects like " Architecture and Transportation Barriers" and " ALL in Merry Young Englands Parlamentas [sic]." (Doc. 1.)
A preliminary examination of Unum's complaint then reveals that it lacks two things that we have repeatedly informed Unum that are required in civil complaints: facts and venue. At the outset, the complaint itself is completely lacking in any coherent, comprehensible factual narrative. Thus, the complaint lists a host of defendants in its caption, but never mentions these defendants again in the body of the pleading in any intelligible way. Instead, Unum's complaint simply sets forth inscrutable, and seemingly assertions regarding federal statutes, charges that the plaintiffs may have been assessed for reasons that are nowhere clearly alleged, along with eccentric array of other documents and nonsensical, fragmentary sentences, whose meaning is only known by the plaintiff. (Id.) The complaint also reveals on its face that the Court lacks venue over many of the defendants and matters set forth by the plaintiff since, according to Unum, it appears that all but one of the named defendants reside and are found outside of the Middle District of Pennsylvania. (Id.)
Along with his complaint, Unum seeks leave to proceed in forma pauperis, and he requests that counsel be appointed to represent the plaintiffs on a pro bono basis. (Docs. 2 and 3.) For the reasons set forth below, we will GRANT Unum leave to proceed in forma pauperis but as part of our legally-mandated duty to screen pro se in forma pauperis pleadings, we recommend that this complaint be dismissed, and that the accompanying motion for appointment of counsel be denied as moot.
A. Screening of Pro Se In Forma Pauperis Complaints--Standard of Review
This Court has a statutory obligation to conduct a preliminary review of complaints filed by plaintiffs who seek leave to proceed in forma pauperis, and seek redress against government officials. See 28 U.S.C. § § 1915 and 1915A. Specifically, we must assess whether a pro se, in forma pauperis complaint " fails to state a claim upon which relief may be granted." This statutory text, in turn, mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for " failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6).
With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) continuing with our opinion in
Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal 556U.S.662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court " need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not " assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which " requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. " Factual allegations must be enough to raise a right to relief above the speculative level."
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should " begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.
Fowler, 578 F.3d at 210-11.
As the court of appeals has also observed: " The Supreme Court in Twombly set forth the 'plausibility' standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege 'enough facts to state a claim to relief that is plausible on its face.'
Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings 'allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing 'more than a sheer possibility that a defendant has acted unlawfully.' Id. A complaint which pleads facts 'merely consistent with' a defendant's liability, [ ] 'stops short of the line between possibility and plausibility of " entitlement of relief." '"
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S.Ct. 1861, 182 L.Ed.2d 644 (U.S. 2012).
In practice, consideration of the legal sufficiency of a complaint entails a three step analysis: " First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.'
Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'
Id. " Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
In this regard, one of the basic requisites for a civil complaint is that it must recites some essential facts tying the defendants to some alleged misconduct. This fundamental requirement is driven both by matters of principle, and by pragmatic considerations. As a matter of principle and practice, a basic factual recital is essential in a complaint because it is simply impossible without such averments to properly assign individual responsibility to a particular defendant without some factual description of what has transpired. Therefore, it is incumbent upon a plaintiff to describe who he seeks to sue, and what these parties did that violated the plaintiff's rights. When a plaintiff fails in this basic responsibility, it is the duty of the court to dismiss his claims.
See, e.g., Moss v. United States, 329 F.App'x 335 (3d Cir. 2009)(dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 F.App'x 205 (3d Cir. 2010); Earnest v. Ling, 140 F.App'x 431 (3d Cir. 2005)(dismissing complaint where " complaint fails to clearly identify which parties [the plaintiff] seeks to sue"); Oneal v. U.S. Fed. Prob., CIV.A. 05-5509 (MLC), 2006 WL 758301 (D.N.J. Mar. 22, 2006)(dismissing complaint consisting of approximately 50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police, CIV.A. 06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) dismissing illegible complaint). Further, in order to satisfy the strictures of Rule 8, a complaint must also contain a coherent prayer for relief, demanding relief from a defendant that lies within the power of the defendant to provide. See Klein v. Pike Cnty. Comm'rs, CIV.A. 11-278, 2011 WL 6097734 (M.D. Pa. Dec. 6, 2011)(failure to articulate a prayer for relief compels dismissal); Snyder v. Snyder, 4: 12-CV-105, 2012 WL 512003 (M.D. Pa. Jan. 24, 2012) report and recommendation adopted, 4:12-CV-105, 2012 WL 511993 (M.D. Pa. Feb. 15, 2012)(same).
In our view, these pleading standards apply to all aspects of the Court's threshold analysis of a complaint's legal sufficiency. Thus, we will apply this analysis both when assessing the adequacy of the factual assertions set forth in the amended complaint, and when examining whether a complaint properly invokes the jurisdiction of this Court.
B. This Complaint Fails to State A Claim Upon Which Relief Can Be Granted
Applying these legal benchmarks in this case, dismissal of this complaint is warranted because the complaint fails on multiple scores to meet the substantive standards required by law, in that it does not set forth a " short and plain" statement of a cognizable violation of some right guaranteed by the Constitution or laws of the United States. Some of the flaws in this particular pro se complaint are discussed separately below.
1. This Complaint Violates Rules 8 and 12(b)(1) of the Federal Rules of Civil Procedure
At the outset, dismissal of this complaint is warranted because the complaint fails to comply with Rule 8's basic injunction that: " A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Dismissal of this complaint is appropriate since it is well-settled that: " [t]he Federal Rules of Civil Procedure require that a complaint contain 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' Fed.R.Civ.P. 8(a)(2), and that each averment be 'concise, and direct, ' Fed.R.Civ.P. 8(e)(1)."
Scibelli v. Lebanon County, 219 F.App'x 221, 222 (3d Cir. 2007). Thus, when a complaint is " illegible or incomprehensible", id., or when a complaint " is also largely unintelligible, " Stephanatos v. Cohen, 236 F.App'x 785, 787 (3d Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See, e.g., Mincy v. Klem, 303 F.App'x 106 (3d Cir. 2008); Rhett v. New Jersey State Superior Court, 260 F.App'x 513 (3d Cir. 2008);
Stephanatos v. Cohen. supra; Scibelli v. Lebanon County, supra; Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.1 (5th Cir. 2005). Furthermore, dismissal under Rule 8 is proper when a complaint " left the defendants having to guess what of the many things discussed constituted [a cause of action]; " Binsack v. Lackawanna County Prison, 438 F.App'x 158 (3d Cir. 2011), or when the complaint is so " rambling and unclear" as to defy response. Tillio v. Spiess, 441 Fed.Appx. 109, 2011 WL 3346787 (Aug. 4, 2011). Finally, a complaint may be dismissed under Rule 8 when the pleading is simply illegible and cannot be understood. See, e.g., Moss v. United States, 329 F.App'x 335 (3d Cir. 2009)(dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 F.App'x 205 (3d Cir. 2010); Earnest v. Ling, 140 F.App'x 431 (3d Cir. 2005) (dismissing complaint where " complaint fails to clearly identify which parties [the plaintiff] seeks to sue"); Oneal v. U.S. Fed. Prob., CIV.A. 05-5509 (MLC), 2006 WL 758301 (D.N.J. Mar. 22, 2006)(dismissing complaint consisting of approximately 50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police, CIV.A. 06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).
Furthermore, we are also obliged to " sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) when the allegations within the complaint 'are so attenuated and unsubstantial as to be absolutely devoid of merit, ... wholly insubstantial, ... obviously frivolous, ... plainly unsubstantial, ... or no longer open to discussion.' Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (internal citations and quotation marks omitted)." DeGrazia v. F.B.I., 316 F.App'x 172, 173 (3d Cir. 2009).
Here, the complaint is cryptic and incomprehensible, made no clearer by the attachment of voluminous exhibits, and " is one of what is becoming a long line of nonsensical complaints filed by this plaintiff in this, and other District Courts, submitted with a multitude of seemingly random exhibits with no apparent relationship to anything stated in the complaints." Unum ex rel. Neuro-Med. Diagnostic Care Servs.
P.C. v. Dep't of Transitional Assistance, 1:13-CV-1593 MAD/ATB, 2014 WL 1572799 (N.D.N.Y. Apr. 18, 2014). The complaint, therefore, fails to " contain 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' Fed.R.Civ.P. 8(a)(2), and [fails to meet Rule 8's requirement] that each averment be 'concise, and direct, ' Fed.R.Civ.P. 8(e)(1)."
Scibelli v. Lebanon County, 219 F.App'x 221, 222 (3d Cir. 2007). Further, the averments set forth in the pleading consist of an apparent, but incomprehensible, catalogue of complaints, a litany grievances that are presented without any context, content, coherence or continuity, making it virtually impossible to ascertain the legal and factual significance of these allegations. Thus, we are " left . . . having to guess what of the many things discussed constituted [a cause of action]." Binsack v. Lackawanna County Prison, 438 F.App'x 158 (3d Cir. 2011). In such instances, Rule 8 calls for the dismissal of the complaint.
In particular, Unum's curious pleading style of naming defendants in the caption of the case, but not describing their conduct in the body of his pleading, and instead simply attaching voluminous documents to the complaint in the apparent hope that we will be able to ferret out the elements of a cause of action against these defendants, is legally insufficient to state a claim.
See Walthour v. Child & Youth Servs., 728 F.Supp.2d 628, 636 (E.D. Pa. 2010)(dismissing claims against defendants only identified in exhibits attached to complaint). This cursory style of pleading is plainly inadequate to state a claim against the individual defendants and compels dismissal of these defendants. Hudson v. City of McKeesport, 244 F.App'x 519 (3d Cir. 2007)(affirming dismissal of defendant who was only named in caption of case.)
Further, " the allegations within the complaint 'are so attenuated and unsubstantial as to be absolutely devoid of merit, ... wholly insubstantial, ... obviously frivolous, ... plainly unsubstantial, ... or no longer open to discussion.' Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (internal citations and quotation marks omitted)." DeGrazia v. F.B.I., 316 F.App'x 172, 173 (3d Cir. 2009). Therefore, " the complaint is subject to dismissal because it presents a cause of action that [seems to] '" rel[y] on " fantastic or delusional scenarios." Neitzke v. Williams, 490 U.S. 319, 328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).' DeGrazia v. F.B.I., 316 F.App'x 172, 173 (3d Cir.2009)." Gilboy v. Mellow, 3:CV- 12-1237, 2012 WL 3957977 (M.D. Pa. June 29, 2012) report and recommendation adopted, 3:12-CV-1237, 2012 WL 3959270 (M.D. Pa. Sept. 10, 2012). Here, where Unum's claims: (1) mirror pleadings filed in the past by this plaintiff and dismissed by this court, see Unum v. Expert Witness, Civ. A. No. 3: 14-CV-1944, 2014 WL 5593340 (M.D. Pa. Oct. 28, 2014);
Unum v. U.S. Dep't of Justice, 3:14-1754, 2014 WL 4955263 (M.D. Pa. Oct. 2, 2014); Unum v. Lake Mead Recreational Area, CIV.A. 3: 14-1632, 2014 WL 4437672 (M.D. Pa. Sept. 9, 2014); (2) persist in relying upon " ambiguous hand-written diatribes, photocopied excerpts from various publications, " Mazzeo-Unum v. Dep't of Transp., 1: 12-CV-1856, 2013 WL 2636159 (N.D.N.Y. June 12, 2013); and (3) the meaning of the complaint is something that only the plaintiff can discern, we conclude that " [t]here is no question that [Unum's] claims meet this standard, as they rely on fantastic scenarios lacking any arguable factual basis." DeGrazia v. F.B.I., 316 F.App'x 172, 173 (3d Cir.2009).
2. The Doctrine of Sovereign Immunity Bars This Claim Against the United States
Furthermore, to the extent that Unum may be attempting to bring a civil rights action against the Social Security Administration, the United States Department of Education, or possibly the United States Department of Justice, we note that it is well-settled that Bivens civil rights actions against the United States -- and, by extension, against federal agencies or officials sued in their official capacity -- are barred by sovereign immunity, absent an explicit waiver of that immunity. FDIC v. Meyer, 510 U.S. 471, 483, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Huberty v. United States Ambassador to Costa Rica, 316 F.App'x 120 (3d Cir. Aug. 21, 2008); Douglas v. United States, 285 F.App'x 955 (3d Cir. 2008); Jaffee v. United States, 592 F.2d 712, 717 (3d Cir. 1979); Bell v. Rossotti, 227 F.Supp.2d 315, 320 (M.D. Pa. 2002) (dismissing claim against individual federal defendants sued in their official capacity because the claims are essentially made against the United States). Therefore, a civil rights action cannot be brought against the United States, or a federal agency, since such claims are plainly barred by the doctrine of sovereign immunity.
3. Venue Does Not Lie in This District
Finally, in this case it is apparent from the face of the complaint that venue does not lie here over nearly all of the defendants named in Unum's complaint, whatever the nature of that complaint might be. Regardless of whether Unum is premising federal jurisdiction upon either alleged violations of the laws of the United States or diversity of citizenship, 28 U.S.C. § 1391(b) defines the proper venue for a lawsuit and provides that an action should:
be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b).
In this case, it is impossible to determine where " a substantial part of the events or omissions giving rise to the claim occurred" since Unum does not recite any facts in his complaint, but it appears that virtually all of the named defendants either reside, or may be found, outside Pennsylvania since all but one of the putative defendants listed by Unum appear to reside outside this state. Therefore, it is evident from the plaintiff's complaint that this Court is not the appropriate venue to entertain these far-flung but entirely unintelligible claims.
While an objection to venue may be waived by a defendant, this Court is permitted sua sponte to raise the issue of an apparent lack of venue, provided the Court gives the plaintiff notice of its concerns and an opportunity to be heard on the issue.
See e.g., Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996)(" a district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the issue."); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). By this Report and Recommendation we are providing the plaintiff this notice in the instant case.
When it appears that a case has been brought in the wrong venue, there are two potential remedies available to the court. First, the court may dismiss the action for lack of venue pursuant to 28 U.S.C. § 1406, and Rule 12(b)(3) of the Federal Rules of Civil Procedure. In the alternative, under 28 U.S.C. § 1406:
The district court of a district in which is filed a case laying venue in the wrong . . . district shall dismiss, or if it be in the interest of justice, transfer such case to any district . . . in which it could have been brought.
28 U.S.C.A. § 1406(a). In this case, given the other manifest flaws in his pleadings, and our inability to discern where any of the events that seem to trouble Unum occurred, it is submitted that, dismissal of this pro se complaint is the appropriate course to follow. Of course, nothing about this dismissal in this Court would prevent Unum from later endeavoring to assert these amorphous claims in a more appropriate venue if he later chooses to do so.
While civil rights pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), dismissal with leave to amend is not necessary when granting further leave to amend would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Here, taken together, the structural flaws in this complaint are beyond any form of repair and, sadly, this pleading " is one of what is becoming a long line of nonsensical complaints filed by this plaintiff in this, and other district courts, submitted with a multitude of seemingly random exhibits with no apparent relationship to anything stated in the complaints." Unum ex rel. Neuro-Med. Diagnostic Care Servs. P.C. v. Dep't of Transitional Assistance, 1: 13-CV-1593 MAD/ATB, 2014 WL 1572799 (N.D.N.Y. Apr. 18, 2014). Therefore, granting leave to amend would, in our view, be futile. Accordingly, this complaint should be dismissed without any further leave to amend.
Accordingly, for the foregoing reasons, the plaintiff is GRANTED leave to proceed in forma pauperis, (Doc. 2.), and IT IS RECOMMENDED that the plaintiff's complaint (Doc. 1.) be dismissed and the motion for appointment of counsel (Doc. 3.) that accompanied the complaint be denied as moot.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.