Johnson v. Wells Fargo Bank

Filing 9

Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER allowing request to proceed in forma pauperis is ALLOWED, denying Plaintiffs Motion to Seal is Denied and denying without prejudice Plaintiffs Motion to Appoint Counsel. If the pl aintiff would like to proceed with this action, he must, within thirty-five (35) days of the date of this memorandum and order, demonstrate good cause why this action should not be dismissed for the reasons stated above or he shall file an Amended Complaint. Failure to comply with the directives contained in this Memorandum and Order may result in a dismissal of this action. Summons shall not issue pending further order of the Court.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CLARENCE D. JOHNSON,
Plaintiff,
v.

CIVIL ACTION NO.
14-11274-MPK

WELLS FARGO BANK,
Defendant.
MEMORANDUM AND ORDER
For the reasons set forth below: (1) plaintiff's Application
to Proceed Without Prepayment of Fees is Allowed; (2) denies the
motion to seal; (3) denies the motion for counsel; and (4) within
35 days of the date of this Memorandum and Order, plaintiff shall
demonstrate good cause why this action should not be dismissed or
he shall file an Amended Complaint which cures the deficiencies
noted below.
BACKGROUND
On March 21, 2014, Clarence D. Johnson (“Johnson”), a
resident of Clinton, Maryland, filed an Application to Proceed
Without Prepayment of Fees along with his self-prepared
complaint.

Plaintiff subsequently filed a motion to seal and a

motion for appointment of counsel.
Named as defendant in the case caption of the complaint is
Wells Fargo Bank.

Complaint (“Compl.”).

Plaintiff states that

he “once again” files a complaint against Wells Fargo “for
illegal conduct and unauthorize[d] movement of several of
[plaintiff’s] bank accounts which has caused [plaintiff] to not
be able to open up an account because of illegal activity (Bank

Robbery) by outside agency’s.”

Id. at p. 1.

In his complaint,

plaintiff states that he plans to name the Internal Revenue
Service because “there is illegal fraudulent activity by way of
drafts and other illegal movement by I.R.S.”

Id. at p. 2.

For

relief, plaintiff seeks “7 million in U.S. Dollars” and
“prosecution of whoever in which ever the court feels best this
is a[n] ongoing problem with stealing [plaintiff’s] identify.”
Id. at p. 3.
The Court’s records indicate that Mr. Johnson previously
filed five cases in the District of Massachusetts.

See Johnson

v. Shady Grove Adventist Hospital, et al., C.A. No. 13-12584-FDS
(Jan. 6, 2014, dismissed for failure to state a claim); Johnson
v. Sheet metal Local #100, et al., C.A. No. 13-13223-NMG
(pending); Johnson v. Evans, et al., C.A. 14-10864-JGD (pending);
Johnson v. United States Judges, C.A. No. 14-11273-DPW (pending);
and Johnson v. North Carolina Unemployment, C.A. No. 14-11325-GAO
(pending).
Moreover, a search of the federal Judiciary's Public Access
to Court Electronic Records (PACER) service reveals that
plaintiff filed six frivolous actions in other federal district
courts last year.

See Johnson v. Denver Gen. Dist. Court,

1:2013-cv-01475 (D. D.C. Sept. 26, 2013); Johnson v. Henrico
Police Dept, 1:2013-cv-12584 (D. D.C. Sept. 26, 2013); Johnson v.
Henrico Co. Govt.,

1:2013-cv-00286 (E.D. Va. June 19, 2013);

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Johnson v. IRS, 1:2013-cv-00385 (E.D. Va. Mar. 26, 2013); Johnson
v. Wells Fargo, 1:2013-cv-00419 (E.D. Va. Apr. 9, 2013); Johnson
v. Ebenezer Baptist Church, 1:2013-cv-00430 (E.D.Va. Aug. 15,
2013).

The instant action almost identical to Johnson v. Wells

Fargo, 1:2013-cv-00419 (E.D. Va. Apr. 9, 2013).
PLAINTIFF’S REQUEST TO PROCEED IN FORMA PAUPERIS
Pursuant to 28 U.S.C. § 1915, a district court may authorize
the commencement of a civil action in forma pauperis if it is
satisfied that the would-be plaintiff cannot pay the filing fees
necessary to pursue the action.

See 28 U.S.C. § 1915(a)(1).

Upon review of plaintiff’s financial disclosures, the request to
proceed in forma pauperis is hereby ALLOWED.
SCREENING
Because plaintiff has sought to proceed without the
prepayment of the filing fee, the complaint is subject to review
to determine if it satisfies the requirements of Section 1915 of
Title 28, the federal in forma pauperis statute.
1915.

See 28 U.S.C. §

Section 1915 authorizes the federal courts to dismiss an

action in which a plaintiff seeks to proceed without prepayment
of the filing fee if the action lacks an arguable basis either in
law or in fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989), or
if the action fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.

See 28 U.S.C. § 1915 (e)(2); Neitzke v.

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Williams, 490 U.S. at 325; Denton v. Hernandez, 504 U.S. 25,
32-33 (1992); Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37
(1st Cir. 2001).
DISCUSSION
A.

Claim Preclusion

The prior decision in Johnson v. Wells Fargo, No. 13-00419
(E.D. Va. Apr. 9, 2013) bars plaintiff’s present suit under the
doctrine of claim preclusion.

Claim preclusion, also known as

res judicata, prevents the relitigation of claims that a party
“had the opportunity and incentive to fully litigate . . . in an
earlier action.” Giragosian v. Ryan, 547 F.3d 59, 63 (1st Cir.
2008).
Generally, claim preclusion is an affirmative defense that
must be pleaded, not raised sua sponte.

Fed. R. Civ. P. 8(c).

However, “[e]ven without a motion, ‘a court on notice that it has
previously decided an issue may dismiss the action sua sponte,
consistent with the res judicata policy of avoiding judicial
waste.’”

In re Colonial Mortgage Bankers Corp., 324 F.3d 12 (1st

Cir. 2003) (citing Bezanson v. Bayside Enterps., Inc., In re
Medomak, 922 F.2d 895, 904 (1st Cir. 1990).
There are three essential elements for the preclusive
effect to apply:

“(1) the identity or privity of the parties to

the present and prior actions; (2) identity of the cause[s] of
action; and (3) a prior final judgment on the merits.”

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McDonough

v. City of Quincy, 452 F.3d 8, 16 (1st Cir. 2006). With respect
to the second element, causes of actions are identical if they
derive “from the same transaction or series of connected
transactions.”

Id.

Thus, “claims not actually raised [in prior

litigation] will be barred if they arise from the same common
nucleus of facts as the claims that were litigated.”

Kucharski

v. Tribeca Lending Corp., 620 F. Supp. 2d 147, 150 (D.Mass.
2009).
Because it is plain that the claims asserted in the present
action were already asserted against the defendant in the 2013
federal litigation, the claims in the instant action are
precluded by the earlier judgment.
B.

Failure to State a Claim

At a minimum, to state a claim for relief a complaint must
include “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff
must plead more than a mere allegation that the defendant has
harmed him [or her].

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.

1937, 1949, 173 L.Ed.2d 868 (2009) (detailed factual allegations
are not required under Rule 8, but a complaint "demands more than
an unadorned, the defendant-unlawfully-harmed-me accusation"
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

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The complaint must “give

the defendant fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.”

Calvi v. Knox County, 470 F.3d

422, 430 (1st Cir. 2006) (quoting Educadores Puertorriqueños en
Acción v. Hernández, 367 F.3d 61, 66 (1st Cir.

2004)).

This

means that the statement of the claim must “at least set forth
minimal facts as to who did what to whom, when, where, and why.”
Id. (quoting Educadores, 367 F.3d at 68).

Although the

requirements of Rule 8(a)(2) are minimal, “minimal requirements
are not tantamount to nonexistent requirements.”

Id. (quoting

Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)).
Here, the complaint is subject to dismissal because Johnson
has not set forth a short and plain statement of his claim.
Although the complaint vaguely alleges fraudulent activity, the
Court cannot discern the alleged facts.

In short, the complaint

fails to state a claim upon which relief may be granted and the
defendant cannot be expected to provide a meaningful response to
the allegations.
C.

Subject Matter Jurisdiction

A federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution and by
Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994).

The basic

federal jurisdiction statutes, 28 U.S.C. §§ 1331, 1332, confer
"federal question" and "diversity" jurisdiction, respectively.

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For diversity jurisdiction pursuant to 28 U.S.C. § 1332, each
plaintiff must be diverse from each defendant, and the amount in
controversy must exceed $75,000. For federal question
jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must
either (1) arise under a federal law or the United States
Constitution, (2) allege a "case or controversy" within the
meaning of Article III, section 2, or (3) be authorized by a
jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct.
691, 699–700, 7 L.Ed.2d 663 (1962).
Here, it does not appear that the Court has subject matter
jurisdiction over this action.

Jurisdiction does not exist under

Section 1331 because the plaintiff has not identified a cause of
action under federal law.1

Although plaintiff alleges that the

parties reside in different states, jurisdiction may not exist
under Section 1332 because plaintiff has not alleged that the
amount in controversy exceeds $75,000.

The federal plaintiff

bears the burden to establish that the minimum amount in
controversy has been met.

Abdel-Aleem v. OPK Biotech LLC, 665

F.3d 38, 41 (1st Cir. 2012); Spielman v. Genzyme Corp., 251 F.3d
1, 4 (1st Cir. 2001) (“as the party seeking to invoke
jurisdiction, Spielman has the burden of showing that he has met

1

Plaintiff’s complaint references 13:1551 and 13:1518. The
Census Act is contained in Title 13 of the United States Code and
it likely that plaintiff intended to reference Title 12 concerning
Banks and Banking.
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the statutory requirements”).
and this Court lacks

Johnson fails to meet that burden

subject matter jurisdiction over this

action.
D.

Filing of an Amended Complaint

If Johnson wishes to pursue this action, he must file an
amended complaint to replace the original complaint.

In addition

to compliance with Rule 8 of the Federal Rules of Civil
Procedure, discussed above, the amended complaint should conform
with the pleading requirements of the other federal rules of
civil procedure.
PLAINTIFF’S MOTIONS TO IMPOUND AND FOR COUNSEL
To the extent plaintiff seeks to seal the documents in this
action, the Court has a process for having confidential materials
impounded, i.e. filed under seal.
Local Rule 7.2.

See District of Massachusetts

Rule 7.2 (d) explains that motions for

impoundment must be filed and ruled upon prior to submission of
the actual material sought to be impounded, unless the court
orders otherwise.
A case filed in federal court and the documents filed in the
case are presumed to be public.

See In re Providence Journal

Co., Inc., 293 F.3d 1, 13-14 (1st Cir. 2002); In re Auerhahn, 650
F. Supp. 2d 107, 112 (D. Mass. 2009) (Wolf, J.).

“[O]nly the

most compelling reasons can justify non-disclosure of judicial
records.”

National Org. for Marriage v. McKee, 649 F.3d 34, 70

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(1st Cir. 2011), cert. denied, – U.S. –, 132 S. Ct. 1635, 183
L.Ed. 233 (2012) (internal citation and citation to quoted cases
omitted).

Here, Johnson fails to follow the procedures outlined

in Local Rule 7.2 and, more importantly, offers no reason to seal
this case.

Thus, his request to impound the proceedings is

denied.
To the extent he seeks appointment of counsel, the motion is
denied without prejudice to renewing after filing an amended
complaint.
ORDER
Based upon the foregoing, it is hereby ORDERED:
1.

Plaintiff's request to proceed in forma pauperis is
ALLOWED.

2.

If the plaintiff would like to proceed with this
action, he must, within thirty-five (35) days of the
date of this memorandum and order, demonstrate good
cause why this action should not be dismissed for the
reasons stated above or he shall file an Amended
Complaint. Failure to comply with the directives
contained in this Memorandum and Order may result in a
dismissal of this action.2

3.

Plaintiff’s Motion to Appoint Counsel is denied without
prejudice.

4.

Plaintiff’s Motion to Seal is Denied.

5.

Summons shall not issue pending further order of the

2

This action was assigned pursuant to the Court's Program for
Random Assignment of Civil Cases to Magistrate Judges.
Upon
receipt of Plaintiff’s response to this Memorandum and Order, the
undersigned will either direct the Clerk to issue summons or direct
the reassignment of the case to a District Judge for further review
of Plaintiff’s response.
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Court.
SO ORDERED.
July 7, 2014
DATE

/s/ M. Page Kelley
M. PAGE KELLEY
UNITED STATES MAGISTRATE JUDGE

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