United States District Court, W.D. Washington, Seattle
ROY A. DAY, Plaintiff,
STATE OF FLORIDA, et al., Defendants. ROY A. DAY, Plaintiff,
STEVE E. IBISON, Defendant, ROY A. DAY, Plaintiff,
DETECTIVE DANIEL TONER, et al. Defendants. ROY A. DAY, Plaintiff
DANIEL DISKEY, et al. Defendants. ROY A. DAY, Plaintiff,
SHERIFF BOB WHITE, et al. Defendants. ROY A. DAY, Plaintiff,
WAL-MART STORES, INC., et al., Defendants. ROY A. DAY, Plaintiff,
DEBRA ROBERTS, et al., Defendants.
ORDER DISMISSING COMPLAINTS
RICARDO S. MARTINEZ, District Judge.
Plaintiff Roy A. Day, a resident of the State of Florida, filed the above-captioned seven lawsuits in this Court on March 11 and March 13, 2014. Plaintiff appears pro se and has been given leave to proceed in forma pauperis. Mr. Day has filed identical motions to consolidate each "companion" case with Case No. 14-367, which he refers to as the "controlling" and "lead case" among this suite of actions. See, e.g., Case No. 14-378, Dkt. #6. Plaintiff has additionally filed under each case identical Motions to Disqualify Judges in the Eleventh Circuit and for Change of Venue ( see, e.g., Dkt. #7), as well as Motions for Temporary Restraining Order, Preliminary Injunction, and Emergency Ruling on the Pending Motions under Case No. 14-367. See Case No. 14-367, Dkt. ##7, 8. For the reasons discussed herein, the Court screens and dismisses Plaintiff's complaints with prejudice pursuant to 28 U.S.C. § 1915(e). The Court further orders Plaintiff to show cause why a pre-filing Order should not be entered enjoining him from filing related lawsuits in light of his history of abusive, vexatious litigation.
Plaintiff, Roy A. Day, is a resident of the State of Florida. Plaintiff was employed at a Wal-Mart store in Hudson Florida when, in 2009, a co-worker accused him of stalking her. Mr. Day's employment was terminated and he was arrested by the Pasco County Sheriff's Office and charged with criminal misdemeanor stalking. See State v. Day, Crim. No. 09-4772MMAWS. Plaintiff was tried, convicted, and sentenced to 300 days in the Pasco County Detention Center. See In re Roy Day Litigation, 2011 WL 550207, *2 (M.D. Fla. 2011).
In 2011, Plaintiff submitted five complaints arising from these circumstances with the United States District Court for the Middle District of Florida. United States Magistrate Judge Thomas G. Wilson screened and dismissed four of the cases for frivolousness while permitting Mr. Day to file an amended complaint for the fifth complaint against the Pasco County Detention Center. See In Re Roy Day Litigation, 2011 WL 550207 at **3-4. In the course of dismissing the complaints, Judge Wilson recounted Mr. Day's extensive history of vexatious and abusive litigious activities in the Middle District of Florida and the efforts taken by the District to stem his tide of frivolous filings.
On December 15, 1995, United States District Judge Steven D. Merrday entered an order recommending that any proposed filings be screened to determine whether the filing was frivolous or abusive. See In Re Roy Day LItigaiton, 976 F.Supp. 1455 (M.D. Fla. 1995). The order pointed out that Mr. Day had filed over 62 lawsuits in the district in the six proceeding years, with filings containing "vile, abusive, and racist comments." Id. at 1457-58. On December 18, 1995, the Chief Judge for the Middle District of Florida adopted the recommendations and provided for the imposition of a sanction not less than $1, 000 if a proposed complaint is found to be frivolous. See In re Roy Day Litigation, Case No. 95-143-MISC-J (Dec. 21, 1995). As a result of Plaintiff's continued filings, the court imposed $4, 000 in sanctions for four attempted frivolous complaints. See In re Roy Day Litigation, 2011 WL 550207, at *1. Undeterred, Plaintiff continued filings complaints, which resulted in an order directing the Clerk of the Court to cease accepting any future filings until Plaintiff satisfied the monetary sanctions. Id.
A ten year-respite followed before Plaintiff began submitting the instant complaints. In dismissing them from the Middle District of Florida, Judge Wilson noted that "Day's submission of a pile of materials has again damaged the judicial system" and warned that "this deviation from the policy of no screening until the sanctions are paid will not be repeated." Id. at **6-7. In an "apparent effort to avoid the effect the Florida sanctions have upon his efforts to file lawsuits there, " Plaintiff submitted the identical five complaints filed in Florida District Court with the U.S. District Court for the District of Delaware on December 17, 2012. See Day v. White, et al., Case No. 12-1719-LPS. Several weeks prior, on November 26, 2012, Plaintiff had filed two additional lawsuits with the District of Delaware also related to Plaintiff's stalking conviction and subsequent incarceration: one against the State of Florida and one against FBI agent Steve E. Ibison. See Case Nos. 12-1566-LPS, 12-1567-LPS. A review of the cases reveals them to be the same seven cases, together with identical motions to consolidate, to disqualify judges, and for emergency relief, that Plaintiff filed with this Court and which form the subject of the instant Order.
The District of Delaware dismissed all seven of Plaintiff's cases pursuant to 28 U.S.C. §1915 as frivolous and malicious, for failure to state a claim, and as time-barred or barred by Eleventh Amendment immunity. See Case No. 12-1719, Dkt. #7 (Apr. 8, 2013); Case No. 12-1566, Dkt. #17 (Apr. 8, 2013); Case No. 12-1567, Dkt. #22 (Apr. 8, 2013). The Third Circuit affirmed all seven dismissals on appeal. See Day v. Toner, 530 Fed.Appx. 118 (3d Cir. 2013); Day v. Florida, 530 Fed.Appx. 134 (3d Cir. 2013); Day v. Ibison, 530 F.3d.Appx. 130 (3d Cir. 2013). The district court additionally issued an order to show cause why Plaintiff should not be enjoined from filing any complaint, lawsuit, or petition for writ of mandamus in an effort to avoid sanctions imposed by the Middle District of Florida or related to the criminal misdemeanor stalking case filed against him on July 6, 2009. Although Plaintiff responded to the show cause order, the court found that his responses failed to address the court's concerns and instead spoke to the issues of jurisdiction and right to appeal. See Case No. 12-1718, Dkt. #20, p. 4 (July 27, 2013). The court accordingly issued an order enjoining Plaintiff from filing a case on related grounds without prior authorization of the Court. Id.
Having had his identical set of complaints dismissed by at least two U.S. District Courts and faced with bar orders enjoining similar filings, Mr. Day now tries his luck with the Western District of Washington. The seven instant cases involve: (1) the State of Florida, described as a criminal appeal of Case No. 09-4772MMAWS, Pasco County, Florida, with all remedies in the Florida criminal courts having been exhausted (Case No. 14-367RSM); (2) F.B.I. agent Steve E. Ibison, special agent-in charge of the Tampa, Florida F.B.I. office, for alleged violations of Plaintiff's constitutional rights under 42 U.S.C. § 1983 and conspiracy under 42 U.S.C. § 1985 (Case No. 14-369RSM); (3) Pasco County Sheriff's Department, Detective Daniel Toner, and Donna H. Newton, also for alleged constitutional violations pursuant to 42 U.S.C. § 1983 and § 1985 (Case No. 14-377); (4) Florida State Court Judge Daniel Diskey, his judicial assistant, and an attorney representing the stalking victim, pursuant to 42 U.S.C. § 1983 and § 1985 (Case No. 14-378); (5) Sheriff Bob White, Pasco County Sheriff's Department, and Major Brian Head challenging conditions of Plaintiff's confinement at the Pasco County Detention Center pursuant to 42 U.S.C. § 1983 and conspiracy under 42 U.S.C. § 1985 (Case No. 14-379); (6) Wal-Mart Stores, Inc. and Plaintiff's supervisor, purportedly as a class-action suit, asserting age discrimination and negligence (Case No. 14-380); and (7) ten defendants including judges, prosecutors, jurors, and others involved in the state court stalking case, seeking damages related to Plaintiff's conviction (Case No. 14-381). The instant Order considers all seven cases.
A plaintiff "must plead a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The purpose of this pleading requirement is to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To meet this pleading standard, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " and would therefore allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as true all "well-pleaded factual allegations" in the complaint. Id. at 679. However, the court is not bound to accept as true labels, formulaic recitations of elements of a claim, or legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555. A complaint must do more than "tender naked assertions devoid of further factual enhancement." Iqbal, 556 U.S. at 678 (internal quotations omitted).
Once a complaint is filed in forma pauperis, the Court must dismiss it prior to service if it is "frivolous or malicious, " "fails to state a claim on which relief can be granted, " or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). See also, Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th Cir. 1984); Yacoub v. U.S., 2007 WL 2745386 (W.D. Wash. 2007). This provision mandating dismissal applies to all in forma pauperis actions, whether or not the Plaintiff is incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000)(en banc). The Court holds pro se plaintiffs to less stringent pleading standards and liberally construes the complaint in the light most favorable to a pro se plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93 (2007)("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.")(internal quotation omitted).
A complaint is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 328-90 (1989). Pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i), a court may dismiss a claim that is based on an "indisputably meritless legal theory" or claims based on "clearly baseless" factual contentions, such as those "describing fantastic or delusional scenarios." Id. at 327. It is appropriate for a court to dismiss a claim as factually frivolous "when the facts rise to the level of the irrational or wholly incredible, whether or not there are judicially recognized facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992).
"A separate standard for maliciousness is not well-established." Young v. Spizman, 2008 WL 678674, *2 (W.D. Wash. 2008); Abdul-Adkbar v. Dept. of Corr., 910 F.Supp.986 (D. Del. 1995), aff'd, 111 F.3d 125 (3d Cir.). Various Circuits have offered objective instances of malicious claims. C.f. Deutsch v. United States, 67 F.3d 1089, 1091-92 (3d Cir. 1995)(a district court "must engage in a subjective inquiry into the litigant's motivations at the time of the filing of the lawsuit to determine whether the action is an attempt to vex, to injure, or harass the defendants.") For instance, a district court may dismiss a complaint if it threatens violence or contains disrespectful references to the court. See Crisafi v. Holland, 655 F.2d 1305 (D.C. Cir. 1981). A court may also dismiss a complaint as malicious if it is plainly abusive of the judicial process or merely repeats pending or previously litigated claims. Id.; Van Meter v. Morgan, 518 F.2d 366 (8th Cir. 1975); Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972); Young, 2008 WL 678674, at *3 (dismissing litigation as frivolous on the grounds that it "raises claims already litigated and lost.").
District courts are also required to dismiss an in forma pauperis action that fails to state a claim for which relief can be granted. See Lopez, 203 F.3d at 1127. The legal standard for dismissing a complaint for failure to state a claim under 28 U.S.C. § 1915 (e)(2)(B)(ii) parallels that used when ruling on dismissal under Federal Rule of Civil Procedure 12(b)(6). Id. When dismissing a complaint under section 1915(e), the court gives pro se plaintiffs leave to amend unless "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995)(affirming dismissal of frivolous complaint without leave to amend); see Lopez, 203 F.3d ...