Duffy v. Kent County Levy Court et al

Filing 7

MEMORANDUM - Signed by Judge Sue L. Robinson on 9/9/14. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

MICHAEL DUFFY,
Plaintiff,
v.
KENT COUNTY LEVY COURT, et aI.,
Defendants.

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) Civ. No. 14-606-SLR
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MEMORANDUM
1. Background. Plaintiff Michael Duffy ("plaintiff") filed this civil action on May
12, 2014. 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. Rackmi/l, 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)(8)(ii) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. Tourscher V. 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)(8)). 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 Hasp., 293
F.3d 103, 114 (3d Cir. 2002).
5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft V. Iqbal, 556 U.S. 662 (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." Iqbal, 556 U.S. at 678. When determining whether dismissal is
appropriate, the court must take three steps: "(1) identify[] the elements of the claim, (2)
review[] the complaint to strike conclusory allegations, and then (3) look!] at the
well-pleaded components of the complaint and evaluat[e] whether all of the elements

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identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d
560, 563 (3d Cir. 2011). Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense." Id
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
as a result of the storm. This is yet another complaint plaintiff has filed in this court in an
effort to redress perceived violations. See Duffy v. Novara, 09-197-SLR, dismissed as
frivolous July 21,2009; Duffy

V.

Kent County Levy Court, 09-198-SLR, summary

judgment granted in favor of defendant Mar. 10,2014; Duffy

V.

dismissed pursuant to defendants' motion Feb. 24, 2011; Duffy

Delaware, 09-817-SLR,
V.

Angel, 10-383-SLR,

dismissed as frivolous August 16, 2010; Duffy v. Mange, 10-529-SLR, dismissed as
frivolous and malicious Sept. 21, 2010; Duffy v. Mange, 11-013-SLR, summary judgment
granted in favor of defendants Mar. 10,2014; Duffy v. United States Army Corp of
Engineers, No. 11-224-SLR, dismissed for failure to comply with order June 17, 2011;
Duffy V. Holder, No. 13-1548-SLR, dismissed for failure to comply with order Nov. 19,
2013; Duffy V. Holder, No. 13-1673-SLR, dismissed for failure to comply with order Nov.
19,2013; Duffy v. Biden, No. 14-366-SLR. dismissed forfailure to comply with order
Nov. 19,2013; and Duffy v. Holder, No. 14-367-SLR, dismissed for failure to comply with
order June 6, 2014.

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7. The complaint is not a model of clarity and, because it invokes the rights to
free speech, freedom to redress grievances, and the right to peaceful assembly, seems
to have been filed pursuant to 42 U.S.C. § 1983. Duffy seems to take exception to acts
taken against him following the May 2008 flood with regard to storm recovery activities,
zoning, access to land, and building permits. (D.I. 1) Plaintiff seeks an apology, as well
as actual and punitive damages.
8. "Repetitious litigation of virtually identical causes of action may be dismissed
under § 1915 as frivolous or malicious." McWilliams v. Colorado, 121 F.3d 573, 574
(10th Cir. 1997) (quotation marks and alteration omitted); Pittman V. Moore, 980 F.2d
994, 995 (5th Cir.1993) (a complaint is malicious when it "duplicates allegations of
another [ ] federal lawsuit by the same plaintiff). See also Bailey v. Johnson, 846 F.2d
1019 (5th Cir. 1988) (an in forma pauperis complaint that merely repeats pending or
previously litigated claims may be considered abusive and dismissed under the authority
of § 1915); McGill v. Juanita Kraft Postal Service, 2003 WL 21355439, at *2 (N.D. Tx.
June 6, 2003) (complaint is 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")
(quotations omitted).
9. Plaintiff's pattern of filing repetitive claims arise out of a common nucleus
operative facts and are related to the 2008 coastal storm. With the exception of one
other recently filed case that has yet to be screened, all of plaintiff's complaints have
been dismissed or summary judgment has been granted in favor of defendants. The

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filing of this complaint falls squarely in the category of malicious litigation. Plaintiff's
continual filing of new cases under new theories in an effort to obtain the recovery he
desires is an abuse of the system. Based upon the foregoing, the court concludes that
plaintiff's complaint is malicious within the meaning of Section 1915(e)(2)(B)(i).
10. Conclusion. For the above reasons, the complaint will be dismissed as
frivolous and malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Amendment of the
complaint would be futile. See Alston v. Parker, 363 F.3d 229 (3d Cir. 2004); Grayson v.
Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002); Borelli v. City of Reading, 532

F.2d 950, 951-52 (3d Cir. 1976). A separate order shall issue.

Dated: September

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,2014

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