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Rosiere v. United States

United States District Court, D. Nevada

June 29, 2017

SHAUN ROSIERE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER - AND - REPORT OF FINDINGS AND RECOMMENDATION (IFP APP. - ECF NO. 1; MOTS. ECF NOS. 6-8)

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on Plaintiff Shaun Rosiere's Application to Proceed In Forma Pauperis (ECF No. 4) pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of Practice. Also before the court are Rosiere's Motion to Issue Summons (ECF No. 6), Motion for Status of Case (ECF No. 7), and Second Motion for Status of Case (ECF No. 8). The application and motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and LR IB 1-3 and 1-4 of the Local Rules of Practice.

         I. In Forma Pauperis Application

         Mr. Rosiere is proceeding in this action pro se, which means that he is not represented by an attorney. See LSR 2-1. He has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis (“IFP”), meaning without prepaying the filing fees, and submitted a proposed complaint. Pursuant to 28 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a filing fee and administrative fee totaling $400 is required to commence a civil action in a federal district court. The court may authorize a person to commence an action without the prepayment of fees and costs if the person files an IFP application including an affidavit stating that he or she is unable to pay the initial fees. See 28 U.S.C. § 1915(a)(1); LSR 1-1. However, the court must apply “even-handed care” to ensure that “federal funds are not squandered to underwrite, at public expense, either frivolous claims” or the colorable claims of a plaintiff “who is financially able, in whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984) (collecting cases). A “district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998); see also Denton v. Hernandez, 504 U.S. 25, 31 (1992) (recognizing Congress' concern that “a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits”).

         As explained in this order, the court finds that the District of Nevada lacks subject matter jurisdiction over Mr. Rosiere's Complaint (ECF No. 1-1), which is also frivolous and duplicative. The court will therefore recommend that the IFP Application be denied.

         II. Screening the Complaint

         Pursuant to § 1915(e), federal courts must screen all IFP complaints prior to a responsive pleading. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (§ 1915(e) applies to “all in forma pauperis complaints”). If the complaint states a valid claim for relief, the court will then direct the Clerk of the Court to issue summons to the defendant and the plaintiff must then serve the summons and complaint within 90 days. See Fed. R. Civ. P. 4(m). If the court determines that the complaint fails to state an actionable claim, the complaint is dismissed and the plaintiff is ordinarily given leave to amend with directions as to curing the pleading deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato, 70 F.3d at 1106. Allegations in a pro se complaint are held to less stringent standards than formal pleading drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, pro se litigants “should not be treated more favorably than parties with attorneys of record, ” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); rather, they must follow the same rules of procedure that govern other litigants. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

         Federal 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). In determining whether a complaint is frivolous and therefore warrants complete or partial dismissal, a court is not bound “to accept without question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32. Allegations are frivolous when they are “clearly baseless” or lack an arguable basis in law and fact. Id.; see also Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolous claims include those based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest that clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). Neitzke, 490 U.S. at 327-28; McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A complaint lacks an arguable basis in law if controlling legal authority requires a finding that the facts alleged fail to establish a legal claim. Guti v. U.S. Immigration & Naturalization Serv., 908 F.2d 495, 496 (9th Cir. 1990). The Ninth Circuit has repeatedly held that a district court may dismiss as frivolous a complaint “that merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); Phillips v. Salt River Police Dept., 586 F. App'x 381 (9th Cir. 2014).; Martinez v. Bureau of Immigration & Customs Enforcement, 316 F. App'x 640 (9th Cir. 2009).

         Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). A court's jurisdiction to resolve a case on its merits requires a showing that the plaintiff has both subject matter and personal jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

         A. Rosiere's Factual Allegations and Claims for Relief

         Mr. Rosiere states that the sole purpose of his Complaint (ECF No. 1-1) is to obtain a contract interpretation and transcript interpretation regarding a plea agreement executed in the District of New Jersey to resolve his federal criminal charges. See United States v. Shaun Rosiere, Case Nos. 1:08-cr-00629, 1:09-cr-00720 (D.N.J.). Attached to the Complaint is a letter dated September 17, 2009, which sets forth the plea agreement between Rosiere and the United States Attorney for the District of New Jersey. Compl. (ECF No. 1-1), Exhibit A at 4-10. He alleges there are nine “contract issues” with the plea agreement which require this court's interpretation. Also attached is a partial transcript of the criminal proceedings on September 17, 2009, in which he entered a guilty plea. Id., Exhibit B at 11-15. He alleges three additional “transcript issues” which require this court's interpretation. The Complaint states that Mr. Rosiere is not asking the court to overturn his federal conviction; thus, this is not a habeas corpus action pursuant to 28 U.S.C. § 2255. He further asserts that the District of Nevada is the appropriate federal court to resolve the disagreement because the terms of his federal probation do not permit him to leave Nevada until November 18, 2018.

         For the reasons discussed below, the court finds that the District of Nevada lacks subject matter jurisdiction over Mr. Rosiere's Complaint, which is also frivolous and duplicative. The court will therefore recommend dismissal of this action.

         B. Analysis

         Mr. Rosiere has filed several lawsuits in numerous federal courts relating to his New Jersey criminal cases. Judicial notice is properly taken of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue. See, e.g., McQuillion v. Schwarzenegger, 369 F.3d 1091, 1094 (9th Cir. 2004) (taking judicial notice of district court proceedings to determine whether prior alleged § 1983 claims were dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)). The court takes judicial notice of the proceedings in Rosiere's criminal cases in the District of New Jersey as well as the federal civil actions he has filed across the country. Most of his recent lawsuits ...


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