United States District Court, D. Nevada
M. Navarro, Chief United States District Judge
before the Court is the Motion to Dismiss, (ECF No. 42),
filed by Defendant United States of America
(“Defendant”). Plaintiff Shaun
Rosiere (“Plaintiff”) filed a
Response, (ECF No. 54), and Plaintiff filed a Reply, (ECF No.
62). For the reasons discussed below, the Court GRANTS
Complaint, (ECF No. 1), is one of several nearly identical
requests under the Freedom of Information Act
(“FOIA”). Over the span of approximately fourteen
months, Plaintiff has filed nine cases involving these FOIA
requests in seven federal districts. Almost all of
Plaintiff's FOIA requests relate to two criminal cases
against him in the District of New Jersey, a civil forfeiture
case in the District of Colorado involving Plaintiff and
corporations apparently affiliated with him, and
Plaintiff's incarceration in Colorado. (See,
initiated this case in the Northern District of California on
May 23, 2016. (See id.). Shortly thereafter,
Plaintiff's request to proceed in forma pauperis
(“IFP”) was granted. (See Am. Order, ECF
No. 6). On September 27, 2016, United States Magistrate Judge
Laurel Beeler of the Northern District of California
transferred the case to this Court. (See Order, ECF
No. 33). In the instant Motion, Defendant seeks to dismiss
Plaintiff's Complaint as malicious.
courts are required to dismiss an IFP action if the complaint
fails to state a claim upon which relief may be granted, is
legally “frivolous or malicious, ” or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). The standard for
determining whether a plaintiff fails to state a claim upon
which relief can be granted under § 1915 is the same as
the standard under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim. Watison v.
Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).
12(b)(6) of the Federal Rules of Civil Procedure mandates
that a court dismiss a cause of action that fails to state a
claim upon which relief can be granted. See North Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). When considering a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden
State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A
formulaic recitation of a cause of action with conclusory
allegations is not sufficient; a plaintiff must plead facts
showing that a violation is plausible, not just
possible. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555) (emphasis
added). “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.” Id. Rule 8(a)(2)
requires that a plaintiff's 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).
“Prolix, confusing complaints” should be
dismissed because “they impose unfair burdens on
litigants and judges.” McHenry v. Renne, 84
F.3d 1172, 1179 (9th Cir. 1996).
argues that Plaintiff's filing of identical and
duplicative litigation in multiple federal courts qualifies
this case as a “malicious” action under 28 U.S.C.
§ 1915(e)(2)(B)(i). The Court notes that a majority of
the related cases filed by Plaintiff have been dismissed for
improper venue or as frivolous and duplicative. Indeed, the
Tenth Circuit has twice affirmed dismissal of actions filed
by Plaintiff. See Rosiere v. United States, 650
F.App'x 593, 595 (10th Cir. 2016) (affirming dismissal by
district court that “correctly concluded
[Plaintiff's] complaint was ‘materially on all
fours' with the complaints he filed in the Districts of
Nevada and New Jersey”); Rosiere v. United
States, No. 16-1313, 2016 WL 7367768, at *3 (10th Cir.
Dec. 20, 2016) (“The district court did not abuse its
discretion in finding that [Plaintiff's] litigation
activity was malicious.”).
Judge Andrew P. Gordon dismissed a similar complaint also
filed by Plaintiff in this District, which Plaintiff then
appealed to the Ninth Circuit. See Rosiere v. United
States, 2:15-cv-02187 (D. Nev.) (filed Nov. 16, 2015).
The Ninth Circuit dismissed this appeal as frivolous. See
Rosiere v. United States, No. 17-15103 (9th Cir. April
28, 2017). The Court agrees that the nearly identical
Complaint filed in this case regarding the same FOIA requests
is frivolous and malicious. Dismissal with prejudice is
therefore appropriate pursuant to 28 U.S.C. §
HEREBY ORDERED that Defendant's Motion to Dismiss, (ECF
No. 42), is GRANTED. Plaintiffs Complaint, (ECF ...