United States District Court, W.D. Pennsylvania
PARADISE BAXTER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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).
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.
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 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:
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. , shall be,
and hereby is, GRANTED.
FURTHER ORDERED that Plaintiffs complaint, ECF No. [1-1], and
Amended Complaint, ECF No. , 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.
FURTHER ORDERED that the Plaintiffs Motion to Extend Time to
Serve (By U.S. Marshal), ECF No. , shall be, and hereby
is, DISMISSED as moot.
Clerk is directed to mark this case "CLOSED."