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holding that "duplicative and repetitive" complaints are considered malicious for purposes of 28 U.S.C. § 1915
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CIVIL ACTION NO. 03-3098, SECTION "R" (2)
February 25, 2004
REPORT AND RECOMMENDATION
Plaintiff, Leroy Banks III, is a prisoner currently incarcerated in the Jefferson Parish Correctional Center in Gretna, Louisiana. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against the Social Security Administration, Mr. Gilli, H. Hillie, Ms. Bent and Dennis W. Bruhl of the Social Security Administration, the Whitney National Bank and its employees, Arnell June and Nicole Vicknail. Plaintiff alleges that his neighbor forged and cashed his Social Security Income check, and that employees of the Social Security Administration schemed to prevent him from getting his money back. Plaintiff seeks monetary damages and reimbursement. Record Doc. No. 1 (Statement of Fact attached to Complaint at pp. 9-15).
Specifically, plaintiff asserts in his complaint that "[o]n or about March 7, 2003, while I was incarcerated on a fabricate[d] charge . . . I had my S.S. check S.S.I, check taken to my bank Whitney (Poydras Plaza) by my neighbor to be cashed and put in my account and that the bank give [sic] my neighbor $100.00 dollars, but before the checks was to be taken to the bank, it was to be brought to me at J.P.C.C. to be signed, to properly complete the transaction, with a well respected banker, but when my neighbor learned that the jail (J.P.C.C.) staff would not allow the checks to be brought to me, she (neighbor) became criminal minded and forged my checks (my name) with my banker thinking that it was proported [sic] to be my signature, as true and genuine. However, due to the fact that I also call 3 way to the bank at first, to do the transaction, through my neighbor's phone, she refused to answer the phone any more plotting her criminal activities. I the plaintiff contend that she forgged [sic] my name. . . ." Id. at p. 9.
Plaintiff further alleges that defendants Vicknail and June of the Whitney Bank refused to report the incident to authorities and "refuse[d] to give the police the information they have (evidence) on my neighbor . . . the bank gave her (my neighbor) my money all but $100 they put in my account, which was not what I told them to do, . . . when my check reached my bank account direct deposit, the bank took my monthly benifits [sic] leaving me overwelmed [sic] with debt and totally indigent and homeless." Id. at pp. 9-10.
Plaintiff also alleges that the New Orleans Police Department ignored him and stated that they couldn't do anything, and that "Arnell June of Whitney Bank along with Ms. Vicknail, refuse[d] to give the police the evidence on the forgger [sic], telling me I had to go to the social security office, but before that, they threaten[ed] to call the police to have me arrested for me inquiring about my money . . . they both acted with malice with their threats, knowing I had just been release[d] from jail. . . . I contend that they was [sic] contacted by the U.S. Treasury about the forggery [sic], and was told to pay the money back and in return they (Whitney) took my money $338.00 claiming I owe[d] them $529.00, and closed my account out of retaliation." Id. at p 10.
Plaintiff further asserts that when he went to the Social Security office in Kenner on September 4, 2003, "to inquire and inform the work[ers?] what the bank did, and ask about my money, I was rejected on both issues, then when I inquired about my overdue back pay starting from my onset date favorable decidion [sic] given and ordered by the Appeals Counsel [sic] for Social Security in Falls Church, Va., the [e]ntire Social Sec. Office . . . became unruly, when I asked about my benifits [sic], when they refuse[d] to properly investigate the forgery, they called the police, then when the Kenner police arrived, the office mannager [sic] knowing my conditions, nearly sent me into a seizure, . . . causing me to become overwelmed [sic] with head pain, and unnecessary stress and anguish. . . . [t]hey told the police that I created a disturbance, and that I said I was going to shoot them, when I simply requested their names, stating that I wanted to appeal my case, in the Eastern Dist. court (S.S.I.) and that I was going to sue them, . . . [M]y back benefits start from 12/3/99, but they stopped my benefits because the S.S. office, et al refuse[d] to pay as required, they even refuse[d] to file my appeals, but insist that they overpaid me, . . . they refuse[d] to pay as ordered by the appeal counsel [sic], I contend that they owe me." Id. at pp. 10-11.
Plaintiff further asserts that the actions of defendants, in taking his benefits, caused him to be "made totally indigent, to which cause[d] me not to be able to get faster transportation to court" resulting in his present incarceration "on contempt for being late." Id. at p. 12.
In his prayer for relief, plaintiff seeks $1,000,000 from the Whitney Bank "for damages, as to my U.S. Const. right 1st amend," $1,000,000 from the Social Security Administration "for the violation of my rights 1st, 8th, 14th Amend. U.S. Const, rights" and back payments "owed to me start from my onset date as stated above and by the Appeals Counsel [sic], of the S.S. Administration, in Falls Church, Va that rendered a favorable desidion [sic] approving my benifits [sic] for both S.S.I, and S.S. starting from (back pay) 12-3-99 the day my skull was crushed into my brain." Id. at pp. 14, 15.
Banks received leave to amend his complaint. Record Doc. No. 4. His amended complaint adds allegations that "the defendants government (or) private and their co-conspiritors [sic], . . . conspired to violate my constitutional rights" and that defendants "should be held liable for their parts in the conspiracy and deprivitations [sic] of my U.S. Constitutional rights (tort acts)" in this Section 1983 action.Id. at pp. 1-2. He further alleges that defendants should be held liable under 28 U.S.C. § 1343 and 42 U.S.C. § 1985(3), 1986 and 1988 for their conspiracy to deprive him of his Fourteenth Amendment rights to procedural due process and equal protection and for "refusing to protect the integrity of the Social Sec. Admin. the Whitny [sic] policies of the Bank." Id. at pp. 2-3.
Banks also contends that defendants should be held liable for their criminal acts under 18 U.S.C. § 242. Id. at p. 3. He asserts that his claims arise under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution, the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 1346(b), and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 396 (1971). Id. at pp. 5-6.
ANALYSIS
I. STANDARDS OF REVIEWThis court is obligated to screen pro se and in forma pauperis complaints filed by prisoners like Banks, "as soon as practicable after docketing," to determine if they should be dismissed as frivolous or malicious or for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(2).
"A federal court may dismiss a claim in forma pauperis `if satisfied that the action is frivolous or malicious.'" Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (quoting former 28 U.S.C. § 1915(d), now incorporated in 28 U.S.C. § 1915(e), as amended). The complaint may be dismissed as legally frivolous "if it lacks an arguable basis in law or fact." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). The law "`accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.'" Macias v. Raul A. (Unknown), Badge No. 153. 23 F.3d 94, 97 (5th Cir. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327(1989)).
"`A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.'"Davis, 157 F.3d at 1005 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). "When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under the section 1915(d) standard is not." Moore, 976 F.2d at 269. A prisoner's in forma pauperis complaint which fails to state a claim may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2).
In addition, duplicative and repetitive complaints are considered malicious for purposes of Section 1915. Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). Thus, a duplicative in forma pauperis complaint must be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i).
In this case, plaintiffs complaint may be dismissed in substantial part as malicious because it is duplicative of another lawsuit filed by plaintiff in this court. In addition, the claims asserted herein that are not duplicative of plaintiff's other cases must be dismissed, either as legally frivolous because they lack an arguable basis in law, or under Rule 12(b)(6), because they fail to state claims of violation of constitutional rights cognizable under Section 1983 or Bivens under the broadest reading.
Pro se civil rights complaints must be broadly construed,Moore, 30 F.3d at 620, and I have broadly construed the complaint in this case.
II. DEFENDANTS ARE NOT STATE ACTORS
Plaintiff is a prisoner who has filed this suit on a form provided to prisoners for asserting claims under 42 U.S.C. § 1983. Banks alleges that defendants, sued in this action under Section 1983, are employees of the Social Security Administration and the Whitney Bank. Plaintiff asserts no claims concerning the conditions of his confinement or against any state officials acting as his custodians.
To state a claim under Section 1983, a plaintiff must show "(1) deprivation of a right, privilege or immunity secured by the federal laws or Constitution (2) by one acting under color of state law."Mississippi Women's Med. Clinic v. McMillan, 866 F.2d 788. 791 (5th Cir. 1989) (emphasis added): accord Morris v. Dearborne, 181 F.3d 657, 666 n. 6 (5th Cir. 1999). Action taken under color of state law for purposes of Section 1983 requires a defendant's use of power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law" and when the defendant is engaged in the "performance of official duties." United States v. Causey, 185 F.3d 407, 415 (5th Cir. 1999). Plaintiff must show that defendant['s] actions are "fairly attributable to the state." West v. Atkins, 487 U.S. 42, 49 (1988).
Under no circumstances can the individuals named by plaintiff as defendants in this matter be considered state actors. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988). The defendants are private citizens whom plaintiff alleges work for the Social Security Administration and the Whitney Bank. Defendants' actions upon which plaintiff bases his claims were taken as private persons, not in any official capacity authorized by the State of Louisiana. Because defendants are not state actors, plaintiffs Section 1983 claim against defendants has no basis in federal law and must be dismissed for failure to state a cognizable claim.
III. NO ACTIONABLE BIVENS CLAIM
Plaintiffs complaint also names the Social Security Administration as a defendant. Section 1983 permits civil actions for damages based upon alleged violations of constitutional rights only against persons acting under color of state law; Section 1983 does not authorize actions against the United States, its agents or agencies. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 396 (1971). Thus, to whatever extent, if any, plaintiff seeks to assert a Section 1983 claim against the United States or one of its agencies, he fails to state a claim upon which relief can be granted.
Of course, a petitioner may maintain a similar kind of claim against a federal employee accused of violating his federal constitutional rights. Such a claim is now generally referred to as a Bivens action,Witherspoon v. White, 111 F.3d 399, 400 n. 1 (5th Cir. 1997) (citation omitted), and plaintiff refers to Bivens in his amended complaint. A Bivens claim, however, is availableonly against government officers in their individual capacities, in order to deter future civil rights violations by such individuals. Williamson v. United States Dep't of Agriculture, 815 F.2d 368, 380 (5th Cir. 1987). The Supreme Court has held that there can be no Bivens cause of action against the United States government, a federal agency (such as the Social Security Administration) or government officers in their official capacities, because the deterrent effect on the individual would be lost. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994). Thus, Banks cannot state any Bivens claim against the Social Security Administration or any of its officers because his allegations relate to actions that could only be taken in an official capacity.
Moreover, even accepting all of plaintiff's allegations as true, I can conceive of no constitutional violation stated in this complaint and amended complaint. Without a constitutional violation, neither aBivens claim nor a Section 1983 claim can be stated.
IV. DUPLICATIVE/MALICIOUS COMPLAINT
On the same date that he filed the instant complaint in this court, Banks filed another action in this court, seeking judicial review of a decision of the Social Security Administration pursuant to 42 U.S.C. § 405(g). That case, Civil Action No. 03-3102"B"(5), asserts claims concerning his social security benefits that Banks seeks to assert again in the captioned complaint.
Plaintiffs other suit names only two of the defendants also named herein. On November 19, 2003, the magistrate judge assigned to Civil Action No. 03-3102"B"(5) recommended that plaintiffs claims be dismissed without prejudice unless plaintiff amended his complaint to set forth a comprehensible cause of action. Banks attempted to amend his complaint to state a comprehensible cause of action, but the presiding district judge denied his motion, accepted the magistrate judge's report and recommendation and dismissed the case without prejudice for failure to state a claim. C.A. No. 03-3102"B"(5), Record Doc. Nos. 9, 10, 12, 14.
Plaintiff has filed the instant action as a pauper under 28 U.S.C. § 1915. An in forma pauperis complaint shall be dismissed if it is found to be frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i). Duplicative and repetitive complaints are malicious for purposes of Section 1915. Pittman, 980 F.2d at 994-95; Bailey, 846 F.2d at 1021.
Courts may appropriately dismiss an in forma pauperis action as frivolous, when the action "seek[s] to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated by the in forma pauperis plaintiff." . . . In Pittman, the Fifth Circuit Court of Appeals noted that Wilson [v. Lynaugh] "essentially held that pauper status does not entitle a plaintiff to avoid the ordinary rules of res judicata." The Circuit then agreed that a complaint is malicious when it "duplicates allegations of another pending federal lawsuit by the same plaintiff." Reading Pittman and Wilson in conjunction, it is clear that the Court may dismiss an action as malicious when the complaint raises claims that would be barred by the principles of res judicata, whether or not the prior litigation has ended unsuccessfully for the plaintiff.
It is well-settled that "res judicata bars all claims that were brought or could have been brought based on the operative factual nucleus." A complaint is thus malicious when it "duplicates allegations of another pending federal lawsuit by the same plaintiff or when it raises claims arising out of a common nucleus of operative facts that could have been brought in the prior litigation.
The instant action is malicious within the meaning of Pittman. [A Magistrate Judge] . . . has recommended the dismissal of a previous action filed by plaintiff that stemmed from the same set of facts and occurrences that form the basis for the instant complaint. The defendants in the two cases are the same. There is no apparent reason plaintiff could not have pursued the instant claims in his previous litigation.
The Court may either consolidate the two actions or dismiss the instant action without prejudice to plaintiff pursuing his other case, "including any assertions therein of any of the claims in the instant suit." "Ordinarily," however, the courts dismiss "the later-filed action . . . in favor of the case that was filed earlier."McGill v. Juanita Kraft Postal Serv., No. 3:03-CV-1113-K, 2003 WL 21355439, at * 1-2 (N.D. Tex. June 6, 2003) (Ramirez, M.J.) (quoting Wilson v. Lynaugh. 878 F.2d 846, 850 (5th Cir. 1989);Pittman, 980 F.2d at 994, 994-95; Ellis v. American Express Life Ins. Co., 211 F.3d 935, 938 n. 1 (5th Cir. 2000)),report recommendation adopted, 2003 WL 21467745 (N.D. Tex. June 18, 2003) (Kinkeade, J.); accord Parker v. Fort Worth Police Dep't, 980 F.2d 1023, 1026 (5th Cir. 1993).
Thus, a duplicative in forma pauperis complaint must be dismissed under Section 1915(e)(2)(B)(i). Banks has asserted the same claim in Civil Action No. 03-3102"B"(5), seeking judicial review of a decision of the Social Security Administration pursuant to 42 U.S.C. § 405(g). His attempt to reassert the same claim anew in the captioned action must be rejected as duplicative, malicious and frivolous.
V. CIVIL CONSPIRACY CLAIM
Plaintiffs amended complaint asserts a conspiracy between the defendants to violate his constitutional rights. "Although Section 1983 plaintiffs may assert conspiracy claims, a conspiracy by itself is not actionable under section 1983." Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990), abrogated on other grounds by Martin v. Thomas, 973 F.2d 449 (5th Cir. 1992). "The elements of civil conspiracy are (1) an actual violation of a right protected under § 1983 and (2) actions taken in concert by the defendants with the specific intent to violate the aforementioned right." Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999) (citation omitted). Mere conclusory allegations of conspiracy, absent reference to material facts, cannot constitute grounds for Section 1983 relief. Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999); Dayse v. Schuldt, 894 F.2d 170, 173 (5th Cir. 1990). If there has been no underlying violation of Section 1983, there can be no actionable conspiracy claim. Kerr, 171 F.3d at 341-42; Hale v. Townley, 43 F.3d 914, 920 (5th Cir. 1995).
In addition, as discussed above, action under color of state law is a prerequisite to hold a defendant liable under Section 1983.Mississippi Women's Med. Clinic, 866 F.2d at 791. This does not require that the defendant be a state officer. A private person also may be held liable under Section 1983 if he willfully participates in a joint action with state agents. Dennis v. Sparks. 449 U.S. 24, 27-28 (1980); Hobbs v. Hawkins, 968 F.2d 471, 480 (5th Cir. 1992). An allegation of conspiracy between a private party and a state actor will fulfill this requirement. Dennis, 449 U.S. at 28. However, dismissal would be appropriate if dismissal of the complaint against the state actors is otherwise proper. Hobbs, 968 F.2d at 480.
In this case, Banks's conspiracy claim is legally frivolous and fails to state a cognizable Section 1983 claim for two reasons. First, his allegations are merely conclusory, wholly speculative and do not refer to material facts sufficient to establish the essential elements of a Section 1983 conspiracy claim. Second, as outlined above, none of the defendants is a state actor, and all Section 1983 claims against all defendants in this case must be dismissed for that reason.
Like the myriad other similar conspiracy complaints by prisoners in which dismissal has been affirmed in the Fifth Circuit, Banks's complaint must also be dismissed. See Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (affirming dismissal as frivolous of convicted prisoner's global allegations of conspiracy between state district judge and prosecuting attorney); Wilson v. Budney, 976 F.2d 957 (5th Cir. 1992) (when plaintiff is proceeding in forma pauperis, conclusory allegations of civil rights conspiracy are subject to dismissal as frivolous under former 28 U.S.C. § 1915(d)); Turner v. Upton County, 967 F.2d 181, 186 (5th Cir. 1992) (global allegations of conspiracy, unsubstantiated with any evidence, insufficient to support inference that county official had conspired with private party to plant evidence and maliciously prosecute plaintiff); Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991) (civil rights conspiracy claims must include allegations of specific operative facts).
VI. ALLEGATIONS OF CRIMINAL ACTIVITY
In his amended complaint, Banks contends that defendants should be held liable under 18 U.S.C. § 242, which provides for criminal penalties for willful deprivation of civil rights because of the victim's race, color or alienage, by a person acting under color of state law.
Section 1983 and Bivens actions are available to seek damages and injunctive relief. They are not avenues for private citizens to bring criminal charges. "[F]ederal criminal charges can only be brought by prosecutors representing the United States." Livingston v. Garcia, 211 F.3d 1278, 2000 WL 488480, at *2 (10th Cir. Apr. 26, 2000). "[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another" and cannot assert such a claim in a Section 1983 action. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (citations omitted); accord Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981); Descamps v. Van De Veer, No. 01-35115, 2002 WL 460835, at * 1 (9th Cir. Feb. 11, 2002);Livingston, 2000 WL 488480, at *2; McKee v. City of Rockwall, 877 F.2d 409, 414 (5th Cir. 1989); Bio-Rep. Inc. v. Johnson, No. 93-0176, 1994 WL 424338, at *2-3 (E.D. La. Aug. 4, 1994) (Livaudais, J.).
Because Banks lacks standing to bring criminal charges against defendants, this claim must be dismissed.
VII. THE FEDERAL TORT CLAIMS ACT
Banks asserts claims under the Federal Tort Claims Act, 28 U.S.C. § 1346, in his amended complaint. However, he does not allege that he has exhausted his administrative remedies, which is a prerequisite to filing suit under the FTCA.
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.28 U.S.C.A. § 2675(a).
Plaintiff must pursue his administrative remedies for all FTCA claims before filing a civil lawsuit. Whitley v. Hunt, 158 F.3d 882, 888 (5th Cir. 1998), abrogated on other grounds by Booth v. Churner, 532 U.S. 731 (2001); Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985), abrogated on other grounds by McCarthy v. Madigan, 503 U.S. 140(1992).
Accordingly, Banks's FTCA claims are barred by his failure to exhaust administrative remedies and must be dismissed.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that plaintiffs claims under the Federal Tort Claims Act be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.IT IS FURTHER RECOMMENDED that plaintiffs claims seeking judicial review of a decision of the Social Security Administration pursuant to 42 U.S.C. § 405(g) be DISMISSED WITHOUT PREJUDICE as duplicative and malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
IT IS FURTHER RECOMMENDED that the remainder of plaintiff s complaint be DISMISSED WITH PREJUDICE as legally frivolous and/or for failure to state a claim under 28 U.S.C. § 1915(e)(2).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Servs. Auto Ass'n. 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).