Rosiere v. USA

Filing 11

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/16/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00143-GPG
SHAUN ROSIERE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER OF DISMISSAL

On January 19, 2016, Plaintiff Shaun Rosiere, a resident of Las Vegas, Nevada,
submitted a “Complaint for Relief Pursuant to: Title 5 U.S.C. § 552” (ECF No. 1) and an
application to proceed in forma pauperis (ECF No. 2).
On January 21, 2016, the Court reviewed the submitted documents and
determined they were deficient. The Court ordered Plaintiff to cure certain designated
deficiencies if he wished to pursue any claims in this action. (ECF No. 4).
The Court also informed Plaintiff that the Court had reviewed the Public Access
to Court Electronic Records (PACER) and found that Plaintiff has filed two identical law
suits in different federal district courts: one in the District of Nevada (see Rosiere v.
USA, 2:15-cv-02187 (D. Nev. filed Nov. 16, 2015)) and the other in the District of New
Jersey (see Rosiere v. USA, 3:16-cv-341 (D.N.J. filed Jan. 19, 2016)) In each of these
cases, Plaintiff names the United States of America as the defendant and asserts
almost identical claims based on alleged violations of the Freedom of Information Act

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(FOIA). In all three of the cases, Plaintiff requests the same relief: the production of the
same documents included in numerous FOIA requests.
The Court warned Plaintiff that this Court does not tolerate the abuse of the
federal court system and any attempt by Mr. Rosiere to relitigate the same issues that
were addressed previously or are currently pending in other federal district courts would
not be tolerated. Plaintiff was instructed to assert only claims that are properly raised in
this Court and that have not been decided by -- or are currently pending -- in another
federal district court.
In response, on February 2, 2012, Plaintiff filed an Amended Complaint (ECF No.
5) and an Application to Proceed in District Court Without Prepaying Fees or Costs
(Long Form) (ECF No. 6). He has been granted leave to proceed in forma pauperis.
(ECF No. 10).
On February 25, 2106, Magistrate Judge Gordon P. Gallagher ordered Mr.
Rosiere to show cause why this action should not be dismissed as duplicative of
Rosiere v. USA, 2:15-cv-02187 (D. Nev.) and Rosiere v. USA, 3:16-cv-341 (D.N.J.).
(ECF No. 7). On March 3, 2016, Mr. Rosiere filed a Response to the Show Cause
Order (ECF No. 8) and a “Complaint against Conduct” (ECF No. 9).
The Court must construe the submitted documents liberally because Plaintiff is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court cannot act
as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the following
reasons, the Court will dismiss the Amended Complaint as duplicative.

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I.

Amended Complaint
In the Amended Complaint, Plaintiff asserts claims arising from multiple FOIA

requests and, as relief, seeks production of the documents. The Court has reviewed his
other two cases, which are still pending, and the claims asserted and the documents
requested as relief appear to be almost identical. As Mr. Rosiere was previously
warned, repetitious litigation of virtually identical causes of action may be dismissed.
See Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000) (district court may dismiss
a suit that is duplicative of another federal court suit); accord Williams v. Madden, 9 F.
App’x 996, 997 & n.1 (10th Cir. June 13, 2001) (stating that the court has the authority
to dismiss "repetitious litigation reasserting virtually identical causes of action").
In the Response to the Show Cause Order (ECF No. 8), Mr. Rosiere requests
that this case be assigned to a federal judge, that Magistrate Judge Gallagher be
removed from the case, that all past orders of Magistrate Judge Gallagher be vacated,
and that the “Nature of the Suite Code 890” be changed “to place the proper Nature of
the Suit Code 895 to this Freedom of Information Act complaint case.” (Id.) As to
whether the claims in this case are duplicative of the claims in his other pending cases,
Mr. Rosiere argues that “[a]s anyone could read the date on each and every FOIA
request in this case are separate and distinct from any other date of FOIA request
mention [sic] by Magistrate Judge Gordon P. Gallagher in Doc. 7. Thus the requests
are not being treating [sic] on an individual basis as the law requires.” Mr. Rosiere goes
on to state that
Plaintiff has a right under the Freedom of [I]nformation Act
established by Congress to write a request for a record. To
write as many individual request [sic] as he would like. . . .
Plaintiff Rosiere has the right under the law to have access
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to court to force the agency to answer each and every
request in some form under the law and convey their
decision/result/search to Plaintiff Rosiere and place each
upon the public docket if they do not comply with the time
frame established by Congress.
(ECF No. 8 at 6).
The Court may take judicial notice of its own records and files that are part of the
court’s public records. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp.,
th

605 F.2d 1169, 1172 (10 Cir. 1979). The Court has reviewed the records and filings in
this case as well as his other pending cases Rosiere v. USA, 2:15-cv-02187 (D. Nev.)
and Rosiere v. USA, 3:16-cv-341 (D.N.J.). A review of the three cases indicates that
they all involve 15 (fifteen) nearly identical FOIA requests. The FOIA requests at issue
are identical except for the date of the request. The FOIA requests at issue in the
District of New Jersey case were all dated July 18, 2015; in the District of Nevada case,
identical FOIA requests were dated July 22, 2015; and finally, the requests at issue in
the District of Colorado case were all dated July 20, 2015.
"A district court, as part of its general power to administer its docket, ‘may stay or
dismiss a suit that is duplicative of another federal court suit.’" Park v. TD Ameritrade
th

Trust Co., 461 F. App’x 753, 755 (10 Cir. 2012) (quoting Curtis v. Citibank, N.A., 226
F.3d 133, 138 (2d Cir. 2000)). In general, "a suit is duplicative if the claims, parties, and
available relief do not significantly differ between the two actions." Id. (internal quotation
marks omitted) (emphasis added).
In this case, the Court finds that Mr. Rosiere’s claims in this action are duplicative
of his claims in the other pending actions. Although the FOIA requests at issue were
dated two (2) days apart from the other cases, the requests in all other respects are

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identical. The requested relief of obtaining the relevant documents is identical to the
other cases. Therefore, the claims, parties, and relief being sought do not differ
significantly between the two actions and Mr. Rosiere may not pursue the same claims
simultaneously in multiple cases. To allow otherwise would permit a party to file an
unlimited number of identical FOIA requests on separate days and then file an unlimited
number of federal lawsuits regarding the requests. Such an abuse of the federal court
system is not allowed.
Furthermore, Mr. Rosiere’s requests that this case be assigned to a federal judge
and that Magistrate Judge Gallagher be removed from the case are denied as moot.
His request for Magistrate Judge Gallagher’s previous orders to be vacated is denied as
none of the orders by Magistrate Judge Gallagher were dispositive. Finally, his request
that the “Nature of the Case” code be changed is also denied. The “Nature of the Suit”
code is for statistical purposes only and the current “890” code for “Other Statutory
Actions,” is not inappropriate.
For the reasons discussed above, this action will be dismissed.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he also must pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is

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ORDERED that the Amended Complaint (ECF No. 5) and the action are
dismissed as duplicative of Rosiere v. USA, 2:15-cv-02187 (D. Nev.) and Rosiere v.
USA, 3:16-cv-341 (D.N.J.). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

16th

day of

March

, 2016.

BY THE COURT:
s/Lewis T. Babcock________________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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