Credico v. Facebook Inc.

Filing 11

ORDER by Magistrate Judge Jacqueline Scott Corley denying 10 Motion for Reconsideration. (ahm, COURT STAFF) (Filed on 8/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JUSTIN CREDICO,

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Plaintiff,

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United States District Court
Northern District of California

Case No. 15-cv-05810-JSC

ORDER DENYING MOTION FOR
RECONSIDERATION

v.

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FACEBOOK INC.,

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Re: Dkt. No. 10

Defendant.

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Plaintiff, an inmate in the Federal Detention Center in Philadelphia, Pennsylvania, filed

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this pro se civil rights complaint against Facebook, Inc. (“Facebook”), and a number of “Doe”

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defendants who are “agents” of the Federal Bureau of Investigation (“F.B.I.”) and other

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“unknown” federal agencies.1 He was granted leave to proceed in forma pauperis.
The case was dismissed under 28 U.S.C. § 1915(e) as frivolous because the complaint

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duplicated an in forma pauperis complaint Plaintiff filed in a prior case, Credico v. Facebook, Inc.,

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et al., No. 14-0881 JS (E.D. Pa.), which case was dismissed for failure to state a claim upon which

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relief can be granted. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (in forma

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pauperis complaint that merely repeats pending or previously litigated claims may be considered

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frivolous and dismissed under the authority of 28 U.S.C. § 1915(d)2); Bailey v. Johnson, 846 F.2d

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Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). (Dkt. Nos. 2, 6.)
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Prior to 1996, the current version of Section 1915(e) was Section 1915(d).

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1019, 1021 (5th Cir. 1988) (in forma pauperis complaint that repeats previously litigated claims

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may be dismissed).

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Plaintiff has filed a motion for reconsideration. Rule 60(b) provides for relief from final

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judgment where one or more of the following is shown: (1) mistake, inadvertence, surprise or

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excusable neglect; (2) newly discovered evidence which by due diligence could not have been

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discovered in time to move for a new trial; (3) fraud by the adverse party; (4) the judgment is void;

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(5) the judgment has been satisfied; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b).

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Plaintiff does not specify what provision of Rule 60(b) compels relief from judgment, but based

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on his argument, the only provision that would appear to apply is Rule 60(b)(6).

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Plaintiff argues that this Court should not have dismissed this case under the doctrine of res

United States District Court
Northern District of California

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judicata because the prior dismissal was not done by a court of “competent jurisdiction.” In

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support of his argument that the Eastern District of Pennsylvania was not of “competent

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jurisdiction,” Plaintiff cites the “click wrap agreement” of Facebook, Inc., which he asserts

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requires that all claims against Facebook, Inc., be brought in the Northern District of California.

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This case was not dismissed on the grounds of res judicata, however. Plaintiff filed his in

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forma pauperis complaint in the Eastern District of Pennsylvania, and after he lost there, he filed

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the same complaint in this Court again seeking leave to proceed in forma pauperis. Under Cato,

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that renders this instant in forma pauperis complaint frivolous under 28 U.S.C. § 1915(e). In Cato,

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the Court held that “there is no abuse of discretion where a district court dismisses an in forma

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pauperis complaint ‘that merely repeats pending or previously litigated claims’” 345 F.3d at 1105

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n.2 (quoting Bailey, 846 F.2d at 1021, and citing Denton v. Hernandez, 504 U.S. 25, 30, (1992)

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(recognizing Congress's concern that “a litigant whose filing fees and court costs are assumed by

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the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous,

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malicious, or repetitive lawsuits”). As in Cato, the dismissal of the instant case was based on

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Section 1915(e)’s bar on filing repetitive in forma pauperis lawsuits. It is noted, that the dismissal,

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although with prejudice, does not preclude Plaintiff from pursuing his claims in a paid complaint.

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See id. To the extent that Plaintiff believes the Eastern District of Pennsylvania did not have

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jurisdiction to decide his claims, he can make that argument in that court, on appeal from that
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court’s decision, or in response to a res judicata argument raised in a new action in which he pays

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the filing fee.

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Plaintiff’s motion for reconsideration of the dismissal order is DENIED.

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IT IS SO ORDERED.

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Dated: August 1, 2016

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JUSTIN CREDICO,

Case No. 15-cv-05810-JSC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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FACEBOOK INC.,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on August 1, 2016, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Justin Credico ID: Prisoner Id 71239066
Federal Detention Center
700 Arch Street
P.O. Box 562
Philadelphia, PA 19105

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Dated: August 1, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ada Means, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY
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