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Marinkovic v. Battaglia

United States District Court, W.D. Pennsylvania

October 8, 2019

MEL MARINKOVIC, Plaintiff,
v.
DAVID K. BATTAGLIA, et al., Defendants.

          MEMORANDUM ORDER

          SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE.

         Plaintiff Mel Marinkovic commenced the instant proceeding on March 12, 2019 by filing a motion to proceed in forma pauper is, ECF No. 1, and lodging a complaint directed against Armstrong County and four individuals who previously served as county officials. The individual Defendants include Jeanne Englert, previously the Armstrong County Tax Claim Director, and three former county commissioners, to wit; David K. Battaglia, Robert T. Bower, and Richard L. Fink.

         On March 22, 2019, before the Court ruled on his application to proceed in forma pauperis, Plaintiff purported to file an amended complaint. ECF No. 2. The allegations and claims in Plaintiffs pleadings are essentially identical to those raised in his prior civil action, Marinkovic v. Battaglia, et al, No. 2:18-cv-388-MRH. The latter action was previously consolidated with another related lawsuit captioned Marinkovic v. Battaglia, et al, and filed at No. 1:14-cv-49. As in his pleading in No. 2:18-cv-388, Plaintiffs pleading in the instant case asserts claims based upon the Defendants' alleged spoliation of evidence and "deliberate indifference," All three of Plaintiff s lawsuits commonly arise out of his unsuccessful attempts to acquire county-held properties through a private bidding process in Armstrong County.

         On May 22, 2019, Plaintiff filed a motion for an extension of time within which to make service of his complaint in the instant case. ECF No. 3. Plaintiff explains in his motion that, because service of the complaint in No. 2:18-cv-388 was not made within ninety (90) days, that complaint must be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m); Plaintiff therefore filed this entirely new lawsuit as a mechanism for reasserting the claims in No. 18-cv-388. ECF No. 3 at 2.

         The United States Court of Appeals for the Third Circuit has instructed the district courts to utilize a two-step analysis to determine whether to direct service of a complaint where the plaintiff seeks to proceed in forma pauper is. See Roman v. Jeffes, 904 F.2d 192, 194 n. 1 (3d Cir. 1990). First, the district court evaluates the plaintiffs financial status and determines whether he is eligible to proceed in forma pauperis under § 1915(a). Id., Second, the court assesses the complaint under § 1915(e)(2) to determine whether it is frivolous or otherwise subject to dismissal. Id. (citing Sinwell v. Shapp, 536 F.2d 15 (3d Cir. 1976)); see Schneller v. Abel Home Care, Inc., 389 Fed.Appx. 90, 92 (3d Cir. 2010). Because the Court finds that Plaintiff is without sufficient funds to pay the required filing fee, he will be granted leave to proceed in forma pauperis.

         Pursuant to 28 U.S.C. § 1915(e)(2), as amended, "[t]he court shall dismiss the case at any time if the court determines that ... (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." A claim is frivolous if it: 1) is based upon an indisputably meritless legal theory and/or, 2) contains factual contentions that are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). Whether a complaint fails to state a claim under § 1915(e) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the court to determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Before dismissing a complaint for failure to state a claim upon which relief may be granted pursuant to § 1915, a court must grant the plaintiff leave to amend his complaint, unless the amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

         Here, Plaintiffs initial and amended pleadings fail to state a claim upon which relief can be granted. For all practical purposes, the instant pleadings are identical to the complaint filed in Civil Action 2:18-cv-388. The Court previously dismissed those claims, on the merits, for reasons set forth at length in its Memorandum Opinion and Order filed on September 23, 2019 in the lead case, Civil Action No. 1:14-cv-49. See ECF No. 175 (Mem. Op. dated Sept. 23, 2019) at 23-36. Because the Court determined that Plaintiffs claims could not be saved through further amendment, it dismissed the spoliation and "deliberate indifference" claims with prejudice and without leave to amend. Id. at 33-36.

         Based upon this Court's prior ruling in No. 1:14-cv-49, Plaintiffs claims in the instant civil action are barred by the doctrine of res judicata[1] and otherwise fail to state a claim upon which relief can be granted. Moreover, no amendment will cure the deficiencies in the underlying claims. Accordingly, the following Order is entered:

         AND NOW, this 8th day of October, 2019, based upon the foregoing reasons, IT IS ORDERED that Plaintiffs motion for leave to proceed in forma pauper is, ECF No. [1], shall be, and hereby is, GRANTED.

         IT IS FURTHER ORDERED that Plaintiffs complaint, ECF No. [1-1], and Amended Complaint, ECF No. [2], shall be, and hereby are, DISMISSED with prejudice, in accordance with 28 U.S.C. §1915(e)(2)(B)(ii), for failure to state a claim upon which relief can be granted.

         IT IS FURTHER ORDERED that the Plaintiffs Motion to Extend Time to Serve (By U.S. Marshal), ECF No. [3], shall be, and hereby is, DISMISSED as moot.

         The Clerk is directed to mark this case "CLOSED."

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