Duffy v. Mange et al

Filing 7

MEMORANDUM ORDER - All claims, with the exception of the "Takings Clause" claim, are dismissed as frivolous. Clerk of Court to attempt to refer representation of plaintiff to member of Federal Civil Panel. Standing Order re Federal Civil P anel is incorporated by reference. Plaintiff shall return to Clerk original USM 285 form(s). Upon receipt, the U.S. Marshal shall serve process as directed by plaintiff. (See order for further details) (Copy to pltf. with USM - 285 forms). Signed by Judge Sue L. Robinson on 4/29/11. (fms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL DUFFY,
Plaintiff,

v.
M. MANGE, KENT COUNTY,
DELAWARE, B. BROOKE, and
KENT LEVY COURT, INC.
Defendants.

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) Civ. No. 11-013-SLR
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MEMORANDUM ORDER
At Wilmington this J\"'day of April, 2011, having screened the case pursuant to
28 U.S.C. § 1915;
IT IS ORDERED that all claims, with the exception of the "Takings Clause" claim,
are dismissed as frivolous pursuant to 28 U.S.C. § 1915; and that it is appropriate to
encourage legal representation for plaintiff by an attorney inasmuch as plaintiff appears
pro se and is unable to afford legal, for the reasons that follow:
1. Background. Plaintiff Michael Duffy ("plaintiff') filed this civil action on
January 4,2011. He appears pro se and has been granted leave to proceed in forma
pauperis.
2. Standard of Review. 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). 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. Phillips v. County of Allegheny, 515

F.3d 224,229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because
plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).
3. 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; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g., Deutsch
v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging

that prison officials took an inmate's pen and refused to give it back). An action 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).

4. 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. Tourscherv. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying
Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a claim under §
1915(e)(2)(B». However, before dismissing a complaint or claims for failure to state a
claim upon which relief may be granted pursuant to the screening provisions of 28
U.S.C. § 1915, the court must grant plaintiff leave to amend his complaint unless
amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293
F.3d 103, 114 (3d Cir. 2002).
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5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, _U.S._, 129 S.Ct. 1937 (2009); Bell At!. Corp. v.
Twombly, 550 U.S. 544 (2007). The assumption of truth is inapplicable to legal

conclusions or to "[t]hreadbare recitals of the elements of a cause of action supported by
mere conclusory statements." Id. at 1949. When determining whether dismissal is
appropriate, the court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are
separated. Id. The court must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions. Id. at 210-11. Second, the court must
determine whether the facts alleged in the complaint are sufficient to show that plaintiff
has a "plausible claim for relief."1 Id. at 211. In other words, the complaint must do
more than allege plaintiffs entitlement to relief; rather it must "show" such an entitlement
with its facts. Id. "[WJhere the well-pleaded facts do not permit the court to infer more
than a mere possibility of misconduct, the complaint has alleged - but it has not shown that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1949 (quoting Fed. R. Civ. P.
8(a)(2».
6. Discussion. The allegations are related to the aftermath of a coastal storm
that occurred on May 12, 2008, and the displacement of individuals from their property

1A 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. Iqbal, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). 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.

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as a result of the storm. This is the seventh complaint plaintiff has filed in this court in
an effort to redress perceived violations. 2 The others are: (1) Duffy v. No voro , 09-197SLR, dismissed as frivolous July 21,2009; (2) Duffy v. Kent County Levy Court, 09-198SLR; (3) Duffy v. Delaware, 09-817-SLR, dismissed pursuant to Fed. R. Civ. P. 12(b)(6);
(4) Duffy v. Angel, 10-383-SLR, dismissed as frivolous August 16, 2010; Duffy v. Mange,
11-013-SLR, dismissed as frivolous and malicious September 21,2010; Duffy v. United
States Army Corps of Engineers, 11-224-SLR, filed March 14,2011.
7. The instant complaint alleges violations of the Fifth Amendment "Takings
Clause",3 the False Claims Act, 31 U.S.C. §§ 3729 through 3733; Fed. R. Civ. P. 71.1,
which governs condemnation proceedings in federal court; 49 U.S.C. § 24311, which
provides Amtrak the authority to acquire interests through eminent domain proceedings;
and 16 U.S.C. § 814, which permits the acquisition of sites for the purpose of developing
waterways by the exercise of the right of eminent domain in the federal district court in
which the land is located or in the state courts. 4

2p. Brooks Banta, President of the Kent County Levy Court is improperly named
by plaintiff as B. Brooke. The Clerk of Court is directed to correct the docket.
3Plaintiff opines that Ke/o v. City of New London, 545 U.S. 469 (2005) is
inapplicable. Kelo holds that a city's exercise of eminent domain in the furtherance of
an economic development plan satisfies the constitutional public use requirement.
4Plaintiff posits that this court's opinion and order in Civ. No. 09-198-SLR at 0.1.
90 and 91 "requires a separate action for being a citizen in denying motion to amend
the legal issues." (0.1. 1 at 11 4) Plaintiff goes on to state that "this action only serves
as result perceived legal gap of separation of disabled right from civil rights by the
opinion made in 9/2010." (Id. at 11 8)
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8. As in other cases, plaintiff again complains of the condemnation of his family
cottage, eviction, demolition, in addition to the new theories set forth above. Virtually all
of these allegations have either been raised in various other complaints here and in the
State Court, or they are related to the other cases plaintiff has filed. The new statutes
and theories, with the exception of the Takings Clause discussed below, do not aid
plaintiff in his quest for relief. Therefore, the claims are dismissed as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(b).
9. Plaintiff, however, adds the new allegation that his land is "now referred to
simply as 'county holdings'" and alleges that defendants have refused demands for
payment of costs. The Takings Clause, -"nor shall private property be taken for public
use, without just compensation," U.S. Const. Amdt. 5 - applies as fully to the taking of a
landowner's riparian rights as it does to the taking of an estate in land. Stop the Beach
Renourishment, Inc. v. Florida Dept. of Environment Protection, _U.S._, 130 S.Ct.

2592, 2601 (2010). The classic taking is a transfer of property to the State or to another
private party by eminent domain. Id. Liberally construing the complaint, as the court
must, plaintiff has alleged a claim under the Takings Clause and he may proceed with
this claim.
10. Conclusion. For the above reasons, plaintiff may proceed with the claim
under the Takings Clause. All other claims are dismissed as frivolous pursuant to 28
U.S.C. § 1915. Additionally, the court will direct the Clerk of Court to attempt to refer
representation of plaintiff to a member of the Federal Civil Panel

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IT IS FURTHER ORDERED that:
1. The Clerk of Court is directed to attempt to refer representation of plaintiff to a
member of the Federal Civil Panel.
2. The court's Standing Order regarding the establishment of a Federal Civil
Panel to provide legal representation to indigent parties in certain civil litigation is
incorporated herein by reference.
IT IS FINALLY ORDERED that:
1. Pursuant to Fed. R. Civ. P. 4(c)(3), (d)(1) and 0)(2), plaintiff shall complete and
return to the Clerk of Court an original "U.S. Marshal-285" forms for Michael Petit de
Mange, individually, and as chief executive officer of Kent County, Delaware, and
P. Brooks Banta, individually, and as the president/chief executive officer of the
Kent County Levy Court. Plaintiff shall also provide the court with a copies of the
complaint (0.1. 1) for service upon defendants, individually, and as chief executive
officers of Kent County, Delaware, and Kent County Levy Court, respectively.
Plaintiff is notified that the United States Marshal Service ("USMS") will not serve
the complaint until all "U.S. Marshal 285" forms and copies of the complaint have
been received by the Clerk of Court. Failure to provide complete "U.S. Marshal

285" forms and copies of the complaint within one hundred twenty (120) days from
the date of this order may result in the complaint being dismissed or defendant(s)
being dismissed pursuant to Federal Rule of Civil Procedure 4(m).
2. Upon receipt of the form(s) required by paragraph 1 above, the USMS shall
forthwith serve a copy of the complaint (0.1. 1), this order, a "Notice of Lawsuit" form,
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and a "Return of Waiver" form upon the defendant(s) so identified in each 285 form. All
costs of service shall be advanced by the United States.
3. For each defendant who does not return an executed "Waiver of Service of
Summons" form within thirty (30) days from the date that the "Notice of Lawsuit" and
"Return of Waiver" forms were sent, plaintiff must complete a summons and submit the
completed summons to the Clerk of Court for issuance. Plaintiff shall also provide to the
Clerk of Court completed, original "U.S. Marshal-285" form(s) as set forth in paragraph 1
and copies of the complaint for service. Upon issuance of the summons by the Clerk of
Court, the U.S. Marshal shall personally serve said defendant(s) and said defendant(s)
shall be required to bear the costs related to such service, unless good cause is shown
for failure to sign and return the waiver pursuant to Fed. R. Civ. P. 4(d)(1) and (2) .
4. Pursuant to Fed. R. Civ. P. 4(d)(3), a defendant who, before being served with
process timely returns a waiver as requested, is required to answer or otherwise respond
to the complaint within sixty (60) days from the date upon which the complaint, this
order, the "Notice of Lawsuit" form, and the "Return of Waiver" form are sent. If a
defendant responds by way of a motion, said motion shall be accompanied by a brief or
a memorandum of points and authorities and any supporting affidavits.
5. No communication, including pleadings, briefs, statement of position, etc., will
be considered by the court in this civil action unless the documents reflect proof of
service upon the parties or their counsel.

UNITED STA

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S DIS rRICT JUDGE