Day v. Pasco County Sheriffs Department et al
MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 4/8/13. Associated Cases: 1:12-cv-01715-LPS, 1:12-cv-01716-LPS, 1:12-cv-01717-LPS, 1:12-cv-01718-LPS, 1:12-cv-01719-LPS(rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 12-171S-LPS
DETECTNE DANIEL TONER, et aI.,
ROY A. DAY,
Civ. No. 12-1716-LPS
DEBRA ROBERTS, et aI.,
ROY A. DAY,
Civ. No. 12-1717-LPS
DANIEL DIS KEY, et at,
ROY A. DAY,
Civ. No. 12-1718-LPS
WAL-MART STORES, INC., et aI.,
ROY A. DAY,
Civ. No. 12-1719-LPS
SHERIFF BOB WHITE, et aI.,
Roy A. Day, Tarpon Springs, Florida, Pro Se Plaintiff.
Plaintiff Roy A. Day ("Plaintiff"), who resides in Tarpon Springs, Florida, has filed
several lawsuits in this Court. He appears pro se and has been given leave to proceed in forma
Plaintiff 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. Plaintiffs
employment was terminated and he was arrested by the Pasco County Sheriffs Office. He was
charged with criminal misdemeanor stalking, State v. Day, Crim. No. 09-4772MMAWS, tried,
convicted, and sentenced to 300 days in the Pasco County Detention Center. See In re Roy Day
Litigation, 2011 WL 550207, at *2 (M.D. Fla. Feb. 9, 2011). Plaintiff has filed seven lawsuits in
this Court, all related to the criminal misdemeanor case filed against him on July 6,2009 in the
Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida. Pursuant to 28
U.S.C. § 1915(e), this Memorandum Opinion and Order screens five of the Complaints.
This Court must dismiss, at the earliest practicable time, certain in forma pauperis actions
that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is
immune from such relief. See 28 U.S.c. § 1915(e)(2) (informapauperis actions). The Court
must accept all factual allegations in a complaint as true and take them in the light most
favorable to a pro se plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v.
County ofAllegheny, 515 F.3d 224,229 (3d Cir. 2008). Because Plaintiff proceeds pro se, his
pleadings are liberally construed and his Complaints, "however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94
(internal quotation marks omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.c. § 1915(e)(2)(B)(i), a court may dismiss a
complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly
baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; see also Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d
Cir. 1995) (holding frivolous a suit alleging that prison officials took inmate's pen and refused to
give it back).
"A separate standard for maliciousness is not as well established." Abdul-Akbar v.
Department ofCorr., 910 F. Supp. 986 (D. Del. 1995), aff'd, 111 F.3d 125 (3d Cir.) (table). A
court assessing whether an action is malicious must, in accordance with the definition of the term
"malicious," 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, injure, or harass the
defendant. See Deutsch, 67 F.3d at 1086. For example, a complaint is malicious when it
"duplicates allegations of another ... federal lawsuit by the same plaintiff." Pittman v. Moore.
980 F.2d 994,995 (5th Cir. 1993). A court may dismiss a complaint as malicious if it threatens
violence or contains disrespectful references to the court. See Crisafi v. Holland, 655 F.2d 1305
(D.C. Cir. 1981). Additionally, a court may dismiss a complaint as malicious ifit is plainly
abusive of the judicial process or merely repeats pending or previously litigated claims. See
Crisafi, 655 F.2d at 1309; VanMeterv. Morgan, 518 F.2d 366 (8th Cir. 1975);Duhartv.
Carlson, 469 F.2d 471 (lOth Cir. 1972); see also Banks v. Gillie, 2004 WL 5807334 (E.D. La.
Feb. 25, 2004) (duplicative and repetitive complaints are considered malicious for purposes of §
1915); McGill v. Juanita Kraft Postal Serv., 2003 WL 21355439, at *2 (N.D. Tex. June 6,2003)
("A complaint is thus malicious when it duplicates allegations of another pending federal lawsuit
by the same plaintiff or when it raises claims arising out of a common nucleus of operative facts
that could have been brought in the prior litigation.") (internal quotation marks omitted).
The legal standard for dismissing a complaint for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions.
See Tourscher v. McCullough, 184 F.3d 236,240 (3d Cir. 1999). However, before dismissing a
complaint or claims for failure to state a claim upon which relief may be granted pursuant to the
screening provisions of28 U.S.C. § 1915, the Court must grant Plaintiffleaveto amend, unless
amendment would be inequitable or futile. See Grayson v. Mayview State Hasp., 293 F.3d 103,
114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). When
determining whether dismissal is appropriate, the Court conducts a two-part analysis. See
Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). First, the factual and legal
elements of a claim are separated. See id. The Court must accept all of the complaint's well
pleaded facts as true, but may disregard any legal conclusions. See id. at 210-11. The
assumption of truth is inapplicable to legal conclusions or to "[tJhreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." Iqbal, 556 U.S. at 678.
Second, the Court must determine whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a "plausible claim for relief." Fowler, 578 F.3d at 21 L In other
words, the complaint must do more than allege the plaintiffs entitlement to relief; rather, it must
"show" such an entitlement with its facts. Id. A claim is facially plausible when its factual
content allows the Court to draw a reasonable inference that the defendant is liable for the
misconduct alleged. See Iqbal, 556 U.S. at 678. The plausibility standard "asks for more than a
sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts
that are 'merely consistent with' a defendant's liability, it 'stops short of the line between
possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 570).
Plaintiff alleges that he has been denied meaningful access to the Florida courts because
he is "a pauper and homeless with no money for an unconstitutional $4,000 filing fee." (Civ. No.
12-1715-LPS, at D.L 2 ~ 12) Research indicates that the $4,000 is not a filing fee but a sanction
imposed upon Plaintiff due to his vexatious and abusive litigatious activities. See In re Roy Day
Litigation, Misc. No. 95-143-J (M.D. Fla.).
On December 15, 1995, a recommendation was filed in the United States District Court
for the Middle District of Florida ("Florida District Court") recounting in detail Plaintiff's history
of vexatious and abusive litigation. I See In re Roy Day Litigation, 976 F.Supp. 1455 (M.D. Fla.
1995). On December 18, 1995, the presiding district judge adopted the recommendation and an
Order was entered that provides for screening and the imposition of a sanction of not less than
IPlaintiffhas also been found to be a vexatious litigant by the United States Supreme
Court and the District Court of Appeal of Florida, Second District. See Day v. Day, 510 U.S. 1
(1993); Day v. Vinson, 713 So. 2d 1016 (Fla. Dist. Ct. App. 1998).
$1,000 upon the finding that a proposed complaint filed by Plaintiff is frivolous. See In re Roy
Day Litigation, Case No. 95-143-MISC-J, at D.L 1. Plaintiff continued filing and, as a result of
four attempted frivolous filings, $4,000 in sanctions were imposed. See In re Roy Day
Litigation, 2011 WL 550207, at *1 (M.D. Fla. Feb. 9, 2011). Undeterred by the sanctions,
Plaintiff continued to file complaints. Id. This resulted in an order directing the Clerk of Court
to not accept any filings from Plaintiff until he satisfies the monetary sanctions. Id. Thereafter,
Plaintiff began filing his lawsuits in this Court, in an apparent effort to avoid the effect the
Florida sanctions have upon his efforts to file lawsuits there. 2
Complaints Filed in this District
On November 26,2012, Plaintiff filed two lawsuits in this Court: one against FBI agent
Steve E. Ibison, Civ. No. 12-1566-LPS, and the other against the State of Florida, Civ. No. 12
1567-LPS.3 The cases revolve around Plaintiffs stalking conviction and subsequent
incarceration. On December 17, 2012, Plaintiff filed five more lawsuits in this Court. In
reviewing In re Roy Day Litigation, 2011 WL 550207, at *1 (M.D. Fla. Feb. 9,2011), it is
apparent that the five cases filed here on December 17,2012 are the same five cases Plaintiff
previously filed in the Florida District Court. The five cases filed in both districts were screened
for frivolousness in the Florida District Court by United States Magistrate Judge Thomas G.
Wilson, who, at the same time, considered Plaintiffs motions to proceed in forma pauperis.
the five cases Dey filed here are not properly venued in the District of
Delaware, the Court may not dismiss the case sua sponte on the grounds of improper venue. See
Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cif. 1976).
3Both cases have been screened in separate orders.
The five cases involve: (1) the Pasco County Sheriffs Department, Detective Daniel
Toner, and Donna H. Newton (this Court's Civ. No. 12-1715-LPS), claims found to be frivolous
by the Florida District Court; (2) a forty-six page complaint against ten defendants including
judges, prosecutors,jurors and others involved in the stalking case (this Court's Civ. No. 12
1716-LPS), found to be frivolous by the Florida District Court; (3) a judge, his judicial assistant,
and a lawyer (this Court's Civ. No 12-1717-LPS), found to be frivolous by the Florida District
Court; (4) Wal-Mart and Plaintiffs supervisor (this Court's Civ. No. 12-1718-LPS), found to be
frivolous by the Florida District Court; and (5) claims against Sheriff Bob White, Pasco County's
Sheriff s Department, and Major Brian Head challenging conditions of confinement while
Plaintiff was confined at the Pasco County Detention Center (this Court's Civ. No. 12-1719
LPS), some of which were found to be frivolous and others which were deemed amenable to
benefitting from the filing of an amended complaint. See In re Roy Day Litigation, 2011 WL
550207, at *2-5.
This Court finds dismissal is appropriate on the basis of maliciousness as to Civ. Nos. 12
171S-LPS, 12-1716-LPS, 12-1717-LPS, and 12-1718-LPS. Plaintiff filed identical lawsuits
against the same defendants. His pattern of filing repetitive claims or claims arising out of a
common nucleus of operative facts falls squarely within the category of malicious litigation.
Moreover, as previously determined by the Florida District Court, the complaints in Civ. Nos.
12-171S-LPS, 12-1716-LPS, 12-1717-LPS, and 12-1718-LPS raise frivolous claims.
Because the Complaints in Civ. Nos. 12-171S-LPS, 12-1716-LPS, 12-1717-LPS, and 12
1718-LPS are malicious and frivolous, the Court will dismiss Civ. Nos. 12-17IS-LPS, 12-1716
LPS, 12-1717-LPS, and 12-1718-LPS pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The claims raised in the fifth case, Civ. No. 1719-LPS, are time-barred. Exhibits filed by
Plaintiff indicate that he was housed in the Pasco County Detention Center in Land O'Lakes,
Florida, from October 9,2009 through August 6, 2010. The complaint in Civ. No. 1719-LPS
raises conditions of confinement claims pursuant to 42 U.S.C. § 1983 and a conspiracy claim
under 42 U.S.C. § 1985 for acts that allegedly occurred while Plaintiff was incarcerated. Plaintiff
filed the complaint in Civ. No. 12-1719-LPS on December 17,2012.
The statute oflimitations for claims arising under § 1983 and § 1985 are borrowed from
the forum state's personal injury statute. See Wilson v. Garcia, 471 U.S. 261, 266-67 (1985);
Pittman v. Metuhen Police Dep t, 441 F. App'x 826, 828 (3d CiT. Aug. 2, 2011); Bougher v.
University ofPittsburgh, 882 F.2d 74 (3d Cir. 1989). Here, Plaintiff chose Delaware as the
forum statute to file his lawsuits. In Delaware, § 1983 and § 1985 claims are subject to a two
year limitations period. See 10 DeL C. § 8119; Johnson v. Cullen, 925 F. Supp. 244, 248 (D.
The statute oflimitations is an affirmative defense that generally must be raised by the
defendant, and it is waived if not properly raised. See Benak ex rei. Alliance Premier Growth
Fund v. Alliance Capital Mgmt. L.P., 435 F.3d 396, 400 n.l4 (3d Cir. 2006); Fassett v. Delta
Kappa Epsilon, 807 F.2d 1150, 1167 (3d Cir. 1986). "[W]here the statute of limitations defense
is obvious from the face of the complaint and no development of the factual record is required to
determine whether dismissal is appropriate, sua sponte dismissal under 28 U.S.c. § 1915 is
permissible." Davis v. Gauby, 408 F. App'x 524,526 (3d Cir. Nov. 30,2010). It is evident from
the face of the Complaint in Civ. No. 12-1719-LPS that the claims are barred by the two-year
limitations period. Accordingly, the Court will dismiss Civ. No. 12-1719-LPS, without
prejudice, as frivolous pursuant to pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff, a resident of the State of Florida, has engaged in filing numerous lawsuits that
contain frivolous legal arguments and that are vexatious and abusive of the judicial process.
Plaintiff filed the lawsuits in the United States District Court for the District of Delaware in an
apparent effort to avoid the sanctions imposed upon him by the United States District Court for
the Middle District of Florida. Since November 26,2012, Plaintiff has filed the following
lawsuits in this District, all related to a criminal misdemeanor stalking case filed against him on
July 6, 2009, in the Circuit Court ofthe Sixth Judicial Circuit in and for Pasco County, Florida,
as follows: Day v. Ibison, Civ. No. 12-1566-LPS; Day v. State a/Florida, Civ. No. 12-1567
LPS; Day v. Toner, Civ. No. 12-1715-LPS; Day v. Roberts, Civ. No. 12-1716-LPS; Day v.
Diskey, Civ. No. 12-1717-LPS; Day v. Wal-Mart Stores, Inc., Civ. No. 12-1718-LPS; and Day v.
White, Civ. No. 12-1719-LPS. The seven lawsuits were filed against the State of Florida, Sheriff
Bob White, Pasco County Sheriffs Department, Major Brian Head, Detective Daniel Toner,
Donna H. Newton, Daniel Diskey, Brian Aungst, Jr., Mary Flanerty, Wal-Mart Stores, Inc.,
James Schroder, Debra Roberts, Chris Sprowls, Lynda Barack, Sabrina Farides, Elaine Horne,
Laurie Nourse, Stanley R. Mills, Elizabeth Kovachevich, Susan H. Black, J. L. Edmondson, and
Steve E. !bison.
Because of Plaintiffs vexatious litigious actions, this Court has the power to enjoin him
from filing meritless pleadings where the pleadings raise issues identical or similar to those that
have already been adjudicated. See 28 U.S.C. § 1651; Matter a/Packer Ave. Assoc., 884 F.2d
745, 747 (3d Cir. 1989); Yadav v. Surtees, 87 F. App'x 271 (3d Cir. Jan. 27, 2004).
Plaintiff has been found to be a vexatious litigant by the United States Supreme Court, the
United States District Court for the Middle District of Florida, and the District Court of Appeals
of Florida, Second District. In the Florida District Court, an Order was entered that provides for
screening and the imposition of a sanction of not less than $1,000 upon the finding that a
proposed complaint filed by Plaintiff is frivolous. Despite the Order, Plaintiff continues with his
frivolous filings, and he has incurred $4,000 in sanctions. The sanctions remain unpaid and,
therefore, Plaintiff is unable to file lawsuits in the Florida District Court. It appears he has now
chosen this Court as his District for filing lawsuits, even though venue is not proper in this
District and the majority of his claims have already been found frivolous by the Florida District
For the above reasons, Plaintiff will be ordered to show cause, in writing, why he should
not be enjoined from filing any complaint, lawsuit, or petition for writ of mandamus, filed in the
United States District Court for the District of Delaware in an effort to avoid the sanctions
imposed upon him by the United States District Court for the Middle District of Florida or
regarding or relating to a criminal misdemeanor stalking case filed against him on July 6,2009,
in the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida, including, but
not limited to, actions against the State of Florida, Sheriff Bob White, Pasco County Sheriff's
Department, Major Brian Head, Detective Daniel Toner, Donna H. Newton, Daniel Diskey,
Brian Aungst, Jr., Mary Flanerty, Wal-Mart Stores, Inc., James Schroder, Debra Roberts, Chris
Sprowls, Lynda Barack, Sabrina Farides, Elaine Horne, Laurie Nourse, Stanley R. Mills,
Elizabeth Kovachevich, Susan H. Black, J. L. Edmondson, and Steve E. lbison.
For the above reasons, the Court will dismiss Civ. Nos. 12-1715-LPS, 12-1716-LPS, 12
1717-LPS, and 12-1718-LPS as frivolous and malicious, and will dismiss Civ. No. 12-1719-LPS
without prejudice as frivolous and as time-barred. All pending motions in Civ. Nos. 12-1715
LPS, 12-1716-LPS, 12-1717-LPS, and 12-1718-LPS will be denied as moot. All pending
motions in Civ. No. 12-1719-LPS will be denied without prejudice. 4
An appropriate Order follows.
4Plaintiffs recent letters to the Court (see, e.g., Civ. No. 12-1715-LPS D.L 13, 14, 15) do
not impact the Court's analysis.