United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy United States Magistrate Judge
Court respectfully recommends that Plaintiff's Complaint
(ECF No. 9) filed on April 2, 2018, be sua sponte
dismissed with prejudice prior to service under 28 U.S.C.
§1915(e)(2) because the action is frivolous.
a four-day span, Plaintiff, Roger Wilson, filed ten law
suits, pro se, seeking Leave to Proceed in forma
pauperis. He voluntarily withdrew four of the cases,
Wilson v. Federal A/G Maryland, 2:18-cv-00304;
Wilson v. Memphis F.C.I., 2:18-cv-00312; Wilson
v. FCI Cumberland, 2:18-cv-00313; and Wilson v. FCI
Gilmer, , 2:18-cv-00315 for “lack of venue”.
The six remaining cases filed during that time period are:
Wilson v. Delta Airlines, , 2:18-cv-00305;
Wilson v. Eyster , 2:18-cv-00306; Wilson v.
McKeesport Police Dept., el al, 2:18-cv-00307;
Wilson v. U.S. Gov't/Federal A/g, 2:18-cv-00308;
Wilson v. Healey, 2:18-cv-00311; and Wilson v.
United States of America, 2:18-cv-00314.
pending with the court is Wilson v. U.S. Gov't,
2:17-01467, which was filed on November 13, 2017, for which
Wilson paid the filing fee. The court also notes that Wilson
also filed Wilson v. United States and Office of Atty
General, 2:17-cv-00301 on March 8, 2017, for which he
paid the filing fee. This case was dismissed pursuant to FRCP
12(b)(1), with prejudice, as amendment would be futile.
Wilson filed a notice appealing this decision to the Third
Circuit Court of Appeals. (Id. at ECF No. 29).
is proceeding pro se and as such, he is entitled to
liberal construction of his submissions in federal court.
This means that the Court must liberally construe the factual
allegations of the complaint because pro se
pleadings, “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erikson v. Pardus, 551 U.S. 89, 94
(2007) (internal quotation omitted); Haines v.
Kerner, 404 U.S. 519, 520 (1972). In addition, the court
should “‘apply the applicable law, irrespective
of whether a pro se litigant has mentioned it by
name.'” Higgins v. Beyer, 293 F.3d 683,
688 (3d Cir. 2002) (quoting Holley v. Dep't of
Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)).
However, pro se litigants are not free to ignore the
Federal Rules of Civil Procedure. Pruden v. Long,
Civ. A. No. 3:CV-06-2007, 2006 WL 3325439, *1 (M.D. Pa. Oct.
to 28 U.S.C. §1915(a), Plaintiff requested and has been
granted leave to proceed in forma pauperis. Thus,
his allegations must be reviewed in accordance with the
directives provided in 28 U.S.C. §1915(e). Section
1915(e)(2), as amended, requires the federal courts to review
complaints filed by persons who 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). “[A] complaint…is frivolous
where it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hawkins v. Coleman Hall, C.C.F., No.
11-3467, 2011 WL 5970977, at *2 (3d Cir. Nov. 30, 2011)
(“An appeal is frivolous when it lacks an arguable
basis either in law or fact.” (citing Neitzke,
supra). Thus, under §1915(e)(2)(B), courts are
“authorized to dismiss a claim as frivolous where
‘it is based on an indisputable meritless legal theory
or where the factual contentions are clearly
baseless.'” O'Neal v. Remus, No.
09-14661, 2010 WL 1463011, at *1 (E.D. Mich. Mar. 17, 2010)
(quoting Price v. Heyrman, No. 06-C-632, 2007 WL
188971, at *1 (E.D. Wis. Jan. 22, 2007) (citing
Neitzke, 490 U.S. at 327)).
determining whether a complaint fails to state a claim upon
which relief may be granted for purposes of Section
1915(e)(2)(B), courts apply the same standard applied to
motions to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure. D'Agostino v. CECOM RDEC,
436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999)). A
complaint must be dismissed pursuant to Rule 12(b)(6) if it
does not allege “enough facts to state a claim to
relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007)
(rejecting the traditional 12(b)(6) standard set forth in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957));
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556). The
United States Court of Appeals for the Third Circuit has
expounded on this standard in light of its decision in
Phillips v. County of Allegheny, 515 F.3d 224 (3d
Cir. 2008) (construing Twombly in a civil rights
context), and the Supreme Court's decision in
After Iqbal, it is clear that conclusory or
“bare-bones” allegations will no longer survive a
motion to dismiss: “threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 129 S.Ct.
at 1949. To prevent dismissal, all civil complaints must now
set out “sufficient factual matter” to show that
the claim is facially plausible. This then “allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
1948. The Supreme Court's ruling in Iqbal
emphasizes that a plaintiff must show that the allegations of
his or her complaints are plausible. See Id. at
1949-50; see also Twombly, 505 U.S. at 555, & n.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). In making this determination, the court must accept as
true all allegations of the complaint and all reasonable
factual inferences must be viewed in the light most favorable
to the plaintiff. Angelastro v. Prudential-Bache Sec.,
Inc., 764 F.2d 939, 944 (3d Cir. 1985). “To the
extent that a complaint filed in forma pauperis
which fails to state a claim lacks even an arguable basis in
law, Rule ...