Brett v. Wingate

• Decision Date: 22 March 2016
• Docket Number: CIVIL ACTION NO. 1:15-CV-02438
• Parties: FRANK BRETT, Plaintiff, v. CHUCK WINGATE, et al., Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

FRANK BRETT, Plaintiff, v. CHUCK WINGATE, et al., Defendants

CIVIL ACTION NO. 1:15-CV-02438

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

March 22, 2016

(KANE, J.)

(MEHALCHICK, M.J.)

REPORT AND RECOMMENDATION

This action was commenced by the filing of a complaint in this matter on December 18, 2015, by pro se Plaintiff Frank Brett. The Court has reviewed the complaint in accordance with 28 U.S.C. § 1915(e). For the reasons provided herein, the Court respectfully recommends dismissal of this complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) without leave to amend, as the complaint is frivolous insofar as it contains claims that lack an arguable basis in law or fact.

I. BACKGROUND

On December 18, 2015, pro se Plaintiff Frank Brett commenced this action by filing a complaint, an application to proceed in forma pauperis, and a motion to file documents under seal. (Doc. 1; Doc. 2; Doc. 3). By separate Order, the Court granted Brett's application to proceed in forma pauperis, but denied his motion to file documents under seal.

This largely illegible handwritten pleading containing rambling, unclear, and nonsensical assertions, is characteristic of Brett's numerous other filings in federal court.¹ While the caption of the complaint names as Defendants Chuck Wingate, Barry Davis, Tyrell Jones, Mike Chamberlain, and Steve Jackson, the body of the complaint contains no identifiable constitutional violation supported by factual assertions tethered to these particular Defendants. Rather, it appears that Brett seeks redress for myriad alleged wrongs committed by individuals not named as defendants. (Doc. 2-2). The first few pages consist of vague references to the following: being retaliated against and prevented from testifying against the New York Port Authority, the New Jersey Port Authority, the chairman of United Airlines, a stripper at an Atlanta strip club, a federal court clerk in Columbus, South Carolina, among others, "over 150times in the last 10 years," in violation of 18 U.S.C. § 1513; an incident on October 30, 2015, where a number of unidentified United States Marshals "defamed [his] character" by calling him a "transsexual," and a "crash test dummy because [he has] been hit by 12 cars;" an automobile accident that occurred on March 23, 2012, involving a woman who subsequently "stalked [him] from Fort Lauderdale, Florida;" an episode where Amtrak employees referred to him as a "gay Forrest Gump;" and numerous instances between 2011 and 2015 where non-parties tampered with his mail in violation of 18 U.S.C. § 1703. (Doc. 2-2, at 1).

This chronicle of grievances then devolves into a cryptic chronology of sorts dating back several years, which documents Brett's random observations and several interactions with non-parties, such as the following: "1996—the year my dad died. I would see pa[ ]gan Gang Member 6'3'' tall in my dad's back yard with my dad. They had tap[p]ed into my dad's electric bill [and] committed felonies." (Doc. 2-2, at 2). Brett also provides a list of "places closed by Florida's Federal Strike Force Team I was part of," primarily consisting of strip clubs and bars, such as the "Doll House—strip bar in Orlando, Fl[orida], closed for sex acts and extortion," and, as with other lawsuits he has filed, an extensive list of license plate numbers. (Doc. 2-2, at 8).

II. SECTION 1915(E)(2) STANDARD

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss an action brought in forma pauperis if it is "frivolous." See 28 U.S.C. § 1915(e)(2)(B)(i). Under this statute, an in forma pauperis action may be dismissed sua sponte for frivolousness "at any time," before or after service of process. See 28 U.S.C. § 1915(e)(2); Walker v. Sec. Office of SCI Coal Twp., Civil No. 3:CV-08-1573, 2010 WL 1177338, at *4 (M.D. Pa. Mar. 25, 2010).

An action is "frivolous where it lacks an arguable basis in either law or fact." Neitzke v.Williams, 490 U.S. 319, 325 (1989); see also Thomas v. Barker, 371 F. Supp. 2d 636, 639 (M.D. Pa. 2005). To determine whether it is frivolous, a court must assess a complaint "from an objective standpoint in order to determine whether the claim is based on an indisputably meritless legal theory or clearly baseless factual contention." Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995) (citing Denton v. Hernandez, 504 U.S. 25, 34 (1992)); Thomas, 371 F. Supp. 2d at 639. Factual allegations are "clearly baseless" if they are "fanciful," "fantastic," or "delusional." See Denton, 504 U.S. at 32-33. "[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton, 504 U.S. at 33. A district court is further permitted, in its sound discretion, to dismiss a claim "if it determines that the claim is of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch, 67 F.3d at 1089.

III. DISCUSSION

A. FEDERAL CLAIMS

Having reviewed the complaint, the Court cannot ascertain a clear legal basis for a non-frivolous federal claim within this Court's jurisdiction. Therefore, this action must be dismissed as legally frivolous.²

As an initial matter, aside from a single passing reference to "1983 Civil Rights" in the body of the complaint, the complaint is completely devoid of any facts establishing that Brett was deprived of a right secured by the Constitution in violation of 42 U.S.C. § 1983. (Doc. 2-2, at 1). Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

Section 1983 does not create substantive rights, but rather provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To state a § 1983 claim, a plaintiff must demonstrate that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). The "under color of state law" requirement excludes from its reach "merely private conduct, no matter how discriminatory or wrongful."Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). Here, it is beyond cavil that the Defendants and non-parties identified in the complaint are private citizens and federal employees, not arms of the state. Under limited circumstances, a private individual may be liable under § 1983 if his or her conduct is so closely related to governmental conduct that it can be fairly viewed as conduct of the state itself. However, none of the conduct alleged by Brett can be fairly viewed as state action.

Moreover, there is no legal basis for a federal civil rights claim grounded on alleged defamatory statements made by certain non-parties; namely, the U.S. Marshals, Amtrak employees, Bill Naulty and Rob Lauff. Indeed, "[s]lander and defamation are not actionable under a constitutional tort theory." Akins v. Kasheta, Civil Action No. 3:CV-06-1704, 2006 WL 2828821, at *4 (M.D. Pa. Sept. 29, 2006); Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 402 (3d Cir. 2000) ("The Supreme Court has made clear that federal courts are not to view defamatory acts as constitutional violations."); Brett v. Izzi, No. 1:CV-11-1528, 2011 WL 5237912, at *7 (M.D. Pa. Sept. 8, 2011) report and recommendation adopted, No. 1:11-CV-01528, 2011 WL 5314193 (M.D. Pa. Nov. 1, 2011) ("Plaintiff's claim that Defendants . . . slandered him fails to state a cognizable claim under § 1983 since a state law tort claim against private persons is not a basis for liability in [a §]1983 action.").

Furthermore, Brett's reliance on federal criminal statutes; specifically, 18 U.S.C. § 1513 and 18 U.S.C. § 1703, are misplaced, as these criminal statutes do not create a private right of action. See Brett v. Brett, 503 F. App'x 130, 132 (3d Cir. 2012) ("[C]riminal statutes do not give rise to civil liability."); see also Allen v. Admin. Office of Pa. Courts, 270 F. App'x. 149, 150 (3d Cir. 2008) (unpublished); United States v. Friedland, 83 F.3d 1531, 1539 (3d Cir. 1996) ("[T]he United States Attorney is responsible for the prosecution of all criminal cases within his or herdistrict."); Woods v. McGuire, 954 F.2d 388, 391 (6th Cir. 1992) ("[F]ederal courts uniformly have held that there is no private right of action under [18 U.S.C. § 1703].") (citing Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1340 n.20 (9th Cir. 1987); Sciolino v. Marine Midland Bank-Western, 463 F. Supp. 128, 131-34 (W.D.N.Y. 1979)); Addlespurger v. Corbett, No. 2:09CV1064, 2011 WL 3418975, at *4 (W.D. Pa. Aug. 1, 2011) aff'd, 461 F. App'x 82 (3d Cir. 2012) ("[T]here is no private cause of action available under 18 U.S.C. § 1513.") (citing Shahin v. Darling, 606 F.Supp.2d 525, 539 (D. Del. 2009)).

Under the circumstances presented, these claims are clearly based on indisputably meritless legal theories and thus this action should be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

B. STATE LAW CLAIMS

Brett also appears to have asserted state law claims for slander, defamation, and negligence. (Doc. 2-2, at 1). Where a district court has dismissed all claims over which it had original jurisdiction, the Court may decline to exercise supplemental jurisdiction over state law claims. 28 U.S.C. § 1367(c)(3). Whether the Court will exercise supplemental jurisdiction is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). That decision should be...