D'Amario v. Weiner, CIVIL ACTION No. 12-6098
| Decision Date | 19 February 2013 |
| Docket Number | CIVIL ACTION No. 12-6098 |
| Parties | ARTHUR D'AMARIO, III v. CUSPO BARRY J. WEINER, et al. |
| Court | U.S. District Court — District of New Jersey |
Juan R. Sánchez
Pro se Plaintiff Arthur D'Amario, III, seeks permission to proceed in forma pauperis to file a civil rights action against the United States of America, two Federal Probation Officers, an Assistant United States Attorney, three federal judges, three employees of the Federal Bureau of Prisons, two attorneys who were appointed to represent him in criminal proceedings, and a doctor, all of whom are alleged to have participated in a conspiracy against him.1 D'Amario also seeks a temporary restraining order. Although the Court will grant D'Amario leave to proceed in forma pauperis, because most of the claims in his Amended Complaint are factually frivolous and not cognizable in a civil rights action, the Court will dismiss his Amended Complaint, with the exception of his Bivens claim challenging the Probation Officers' alleged refusal to allow him to transfer his supervised release to the state of Rhode Island. The Court will also deny D'Amario's motion for a temporary restraining order.
FACTS AND PROCEDURAL HISTORY2
As D'Amario's claims are based on underlying federal criminal and civil proceedings, a brief overview of his litigation history is warranted. In 1999, D'Amario was convicted and sentenced in the District of Rhode Island for being a felon in possession of a firearm. See United States v. D'Amario, Crim. A. No. 99-30 (D.N.H.).3 While serving his sentence at a federal prison in New Jersey, D'Amario was indicted for threatening Judge Joseph A. DiClerico, Jr., who had presided over his trial. See United States v. D'Amario, 330 F. App'x 409, 411 (3d Cir. 2009). After a trial on that charge, presided over by Judge Joseph E. Irenas of the District of New Jersey, D'Amario was convicted of threatening a federal judge, pursuant to 18 U.S.C. § 115(a)(1)(B). Id.; see United States v. D'Amario, Crim. A. No. 01-346 (D.N.J.). While serving a prison sentence for that conviction, D'Amario sent a threatening letter to Judge Irenas. He was again convicted under 18 U.S.C. § 115(a)(1)(B), after a trial presided over by Judge Paul S. Diamond. United States v. D'Amario, Crim. A. No. 06-112 (D.N.J.). D'Amario served 84 months of imprisonment on this second § 115(a)(1)(B) conviction and is currently serving a three-year term of supervised release. See In re D'Amario, No. 12-4528, 2013 WL 142044, at *1 (3d Cir. Jan. 14, 2013) (per curiam).
Throughout the years, D'Amario has repeatedly attacked his convictions, sentences, and the execution of his sentence, by filing motions pursuant to 28 U.S.C. § 2255, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, motions for relief from judgment pursuant to FederalRule of Civil Procedure 60(b), and applications to file second or successive § 2255 motions, none of which has been successful to date. See, e.g., D'Amario v. Banks, No. 10-2860, 2011 WL 5857488, at *1 (C.D. Cal. Sept. 29, 2011) (), report and recommendation adopted, 2011 WL 5857801 (C.D. Cal. Nov. 21, 2011). He has also filed numerous unsuccessful mandamus petitions in the Third Circuit Court of Appeals and the United States Supreme Court. In anticipation of and since his release from prison in June 2012, D'Amario filed several motions and letters with Judge Diamond, seeking to transfer his supervised release from New Jersey to Rhode Island or Arizona. See United States v. D'Amario, Crim. A. No. 06-112 (D.N.J.) (ECF Nos. 404, 431, 436, 437, 438, 444). Judge Diamond denied his requests because neither Rhode Island nor Arizona consented to the transfer. Id. (ECF Nos. 410, 432, 439, 446).
D'Amario has also filed numerous civil lawsuits throughout the past three decades. Of particular relevance here is the fact that Judge Ronald Lagueux presided over one of D'Amario's civil rights lawsuits, Civil Action No. 89-11, and ruled against D'Amario. See D'Amario v. Russo, 750 F. Supp. 560, 566 (D.R.I. 1990); D'Amario v. Russo, 718 F. Supp. 118, 125 (D.R.I. 1989). D'Amario has accrued three strikes for purposes of 28 U.S.C. § 1915(g), see D'Amario v. Mendes, No. 10-280, 2010 WL 3780986, at *1 (D.R.I. Sept. 21, 2010), report and recommendation adopted, 2010 WL 4054466 (D.R.I. Oct. 15, 2010), was enjoined from filing in the District of Rhode Island, see D'Amario v. Russo, 132 F.3d 30 (1st Cir. 1997) (per curiam) (unpublished table disposition), and is apparently well known for his frivolous filings. See D'Amario v. Collins, Nos. 08-490, 09-38 & 09-106, 2009 WL 2496861 (D.R.I. Aug. 13, 2009); In re D'Amario, No. 07-324, 2008 WL 2471822, at *1 n.1 (D.N.H. June 13, 2008).
D'Amario initiated this action in the District of New Jersey on October 1, 2012. On January 23, 2013, the case was assigned to this Court pursuant to 28 U.S.C. § 292(b). The Court denied D'Amario's motion to proceed in forma pauperis without prejudice to his filing an amended motion with up-to-date information about his financial status. D'Amario's amended application, his Amended Complaint, and his motion for a temporary restraining order are now pending before the Court.
D'Amario asserts in his Amended Complaint that the Defendants—federal judges, probation officers, employees of the Federal Bureau of Prisons, attorneys who were appointed to represent him during criminal proceedings, an Assistant United States Attorney, and a doctor—are part of a decades-long conspiracy to rig the federal courts against him. The conspiracy allegedly resulted in the aforementioned criminal convictions, his related imprisonment, the denial of his petitions and motions, and the rejection of his civil complaints. According to D'Amario, the impetus for the conspiracy is his filing of complaints against certain judges and lawyers in Providence and Boston from 1987 to 1995, and his initiation of legal malpractice suits against Rhode Island attorneys in 1988 and 1993. D'Amario alleges his activity drew the attention of Judges Lagueux and Boudin, "whose mission was to utilize fraudulent governmental agents to stage frame-ups and ruin citizens' lives if they rocked the boat by questioning judicial authority." Am. Compl. ¶ 17.
D'Amario alleges Judges Boudin and Lagueux "have ties to convicted felon Mafia kingfish," and ran the entire judiciary "with a vicious Mob mentality that uses brute force to induce perjury, witness intimidation and court file tampering." Id. ¶ 20. As a result of their alleged personal vendetta against D'Amario, Lagueux and Boudin "illegally obtained and/or leaked all of [his]confidential files . . . so that all of the judges could spy on him in secret," and "agreed to blacklist [D'Amario] so that he'd no longer have any enforceable legal rights in any court." Id. ¶¶ 17-18.
In connection with this plan, Judge Lagueux allegedly altered documents in Civil Action No. 89-11, so the Judge could throw out the case. Id. ¶ 32. Furthermore, the judges, with the help of the other Defendants, allegedly manufactured evidence and rigged the federal proceedings leading to D'Amario's conviction in Rhode Island and his two convictions in New Jersey, in part by threatening and bribing his court-appointed lawyers and destroying or altering court records.4 D'Amario alleges those and other tactics have influenced "every proceeding [he has been involved in] since 1999," resulting in his inability to prevail on the multitude of motions, claims, and petitions he has filed in the federal courts. Id. ¶ 34.
The conspiracy also allegedly extends into the Federal Bureau of Prisons ("BOP") and the United States Probation Office in Rhode Island. D'Amario alleges BOP officials miscalculated his sentence and the Defendant judges exerted their influence to ensure the dismissal of habeas petitions D'Amario filed to challenge the error. The most recent effects of the alleged conspiracy are those related to D'Amario's supervised release. D'Amario alleges "all Defendants exerted influence on the BOP" to have him released to "the wrong district of NJ instead of RI, to oppress him and subject him to harsh, cruel, and unusual [supervised release] conditions." Id. ¶ 26. He claims he has been "under a form of house arrest in NJ" since his release from prison and asserts that Probation Officers Weiner and Hopkins will not allow him to return home to Rhode Island, among other things. Id. ¶¶ 26-27.
The Amended Complaint also asserts claims against the United States under the Federal Tort Claims Act ("FTCA"). Additionally, D'Amario brings the following claims against the remaining Defendants: (1) constitutional and conspiracy claims pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); (2) claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c); and (3) claims that the Defendants conspired to obstruct justice in violation of 42 U.S.C. § 1985. D'Amario asserts that the federal indictments in his three criminal proceedings "must be dismissed with prejudice," Am. Compl. ¶ 50, and asks the Court expunge his convictions. He also asks the Court to temporarily and permanently restrain Probation Officers Weiner and Hopkins from interfering with his travel to Arizona and his attempt to secure housing in Rhode Island, and for compensatory and punitive damages.
DISCUSSION
Upon consideration of D'Amario's amended motion to proceed in forma pauperis, the Court concludes he will be entitled to proceed without paying the filing fee. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (). Accordingly, 28...
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