Engel v. Verizon Wireless

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff may not proceed in forma pauperis in this action. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice to the filing of a fully-paid complaint. IT IS FURTHER ORDERED that the Cl erk of Court shall request that the agency having custody of plaintiff begin making payments in accordance with 28 U.S.C. § 1915(b)(2) until the full $402 civil filing fees are paid in full. IT IS FINALLY ORDERED that plaintiff's motion to appoint counsel [ECF No. 3 ] is DENIED as moot. An Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Rodney W. Sippel on 9/8/2021. (KEK)

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Case: 4:21-cv-00900-RWS Doc. #: 4 Filed: 09/08/21 Page: 1 of 6 PageID #: 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION JOSEPH MICHAEL DEVON ENGEL, ) ) ) ) ) ) ) ) ) Plaintiff, v. VERIZON WIRELESS, Defendant. No. 4:21-CV-900 RWS MEMORANDUM AND ORDER This matter is before the Court upon review of a civil complaint and request for leave to proceed in forma pauperis, filed by plaintiff Joseph Michael Devon Engel, prison registration number 1069055. Plaintiff’s request will be denied, and this case will be dismissed without prejudice to the filing of a fully-paid complaint. Background On September 3, 2020, plaintiff began filing civil actions pro se in this Court, each time seeking leave to proceed in forma pauperis. His first case, a petition for habeas corpus relief under 28 U.S.C. § 2254, was dismissed on December 14, 2020 due to his failure to exhaust available state remedies. Engel v. Payne, No. 4:20-cv-1211-DDN, ECF No. 8 (E.D. Mo. Sept. 3, 2020). Subsequently, he began filing prisoner civil rights complaints pursuant to 42 U.S.C. § 1983. For the most part, he submitted his pleadings in bulk, and stated he intended each set of pleadings to be docketed as an individual civil action. In many of his complaints, plaintiff listed numerous entities and officials identified only by generic job titles, and he sought trillions of dollars in damages against them based upon wholly conclusory and nonsensical allegations. See, e.g., Engel v. Corizon, No. 4:20-cv-1695-NAB (E.D. Case: 4:21-cv-00900-RWS Doc. #: 4 Filed: 09/08/21 Page: 2 of 6 PageID #: 17 Mo. Nov. 30, 2020) (listing 45 defendants on handwritten notes included with complaint); Engel v. CO1, No. 4:20-cv-1923-HEA (E.D. Mo. Dec. 20, 2020) (naming 49 defendants but none by a first and last name). Plaintiff often sought forms of relief that were unrelated to his claims (such as stocks, properties, outfitted luxury vehicles, and college scholarships) from multiple defendants and non-parties, and he sought relief on behalf of individuals other than himself. See e.g., Engel v. CO1, et al., No. 4:20-cv-1620-NCC (E.D. Mo. Nov. 9, 2020) (seeking scholarships for family members, Missouri farmland for marijuana cultivation, and Mercedes SUVs that are “bulletproof” and “bombproof”); Engel v. USA, No. 4:20-cv-1742-MTS (E.D. Mo. Dec. 1, 2020) (seeking 250 trillion dollars and 2 million in stocks of twenty-three listed countries); and Engel v. Mercy Hospital Festus, No. 4:20-cv-1911-AGF (E.D. Mo. Dec. 11, 2020) (seeking 8900 trillion dollars plus 10 million stocks in various metals, gems, food products, and U.S. and foreign currencies). Plaintiff repeatedly referred to (and appeared to partially base his entitlement to relief upon) his alleged status as a “sovereign citizen.” See e.g., Engel v. Governor of Missouri, No. 1:20-cv-217HEA (E.D. Mo. Oct. 7, 2020). The cases that were reviewed pursuant to 28 U.S.C. § 1915(e)(2) were dismissed, either for one of the reasons articulated therein1 or because plaintiff failed to comply with Court orders. In Engel v. Missouri Courts, No. 4:20-cv-1258-SPM (E.D. Mo. Sept. 15, 2020), the Honorable Henry Edward Autrey cautioned plaintiff to avoid the practice of repeatedly filing frivolous and malicious complaints. Judge Autrey explained that doing so amounted to abusive litigation 1 For example, in many of plaintiff’s actions, the Court determined his allegations were “clearly baseless” and therefore factually frivolous under the standard articulated in Denton v. Hernandez, 504 U.S. 25, 31 (1992), and also determined many complaints were subject to dismissal as malicious based upon the nature of his pleadings and his abusive litigation practices. See e.g., Engel v. Prob. & Parole of Mo., No. 4:20-cv-1740-DDN, ECF No. 5 at 6 (E.D. Mo. dismissed Dec. 22, 2020) (listing twenty-nine of Mr. Engel’s cases naming Missouri Department of Corrections as a defendant); Engel v. Corizon, No. 4:20-cv-1812-NAB, ECF No. 4 at 8-9 (E.D. Mo. dismissed Jan. 6, 2021) (discussing Mr. Engel’s litigation practices as part of an attempt to harass named defendants and not a legitimate attempt to vindicate a cognizable right). -2- Case: 4:21-cv-00900-RWS Doc. #: 4 Filed: 09/08/21 Page: 3 of 6 PageID #: 18 practices and could affect plaintiff’s future eligibility to proceed in forma pauperis as well as potentially subject him to sanctions. Nevertheless, plaintiff continued the practice. As of December 21, 2020, plaintiff was subject to the “three-strikes” provision of 28 U.S.C. § 1915(g). In cases filed after that date, plaintiff has been denied leave to proceed in forma pauperis, and his cases have been dismissed without prejudice to the filing of a fully-paid complaint. As of August 2021, plaintiff has filed more than 160 civil actions in this Court. Additionally, the Court has received civil rights complaints that were filed by prisoners other than plaintiff, but were in plaintiff’s handwriting, and contained allegations and prayers for relief similar to those he previously filed on his own behalf. See e.g., Herron v. ERDCC et al., No 4:21cv-527-NAB (E.D. Mo. May 3, 2021). In sum, plaintiff has flagrantly disregarded this Court’s prior caution to avoid engaging in abusive litigation practices. The Complaint On or about July 21, 2021, plaintiff filed this matter on a court form for Prisoner Civil Rights Complaints brought pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff names one defendant, Verizon Wireless, and his alleged claim in its entirety is as follows: This is in regards to them allowing someone to get phones in my name that helped ruin my credit and stole my identity. This is not right by no means. Id. at 3. He describes his injuries as: “civil rights, ID theft, PTSD, physical health, freedom, [and] mental health.” For relief, he seeks “$250 million dollars plus stock” in Defendant company. Id. at 4. The remaining sections of the form complaint on ‘Exhaustion of Administrative Remedies’ and ‘Previous Lawsuits’ are crossed out. Id. at 5-10. Discussion As discussed above, plaintiff is a prisoner who, while incarcerated, has filed at least three civil actions that were dismissed on the grounds that they were frivolous, malicious, or failed to -3- Case: 4:21-cv-00900-RWS Doc. #: 4 Filed: 09/08/21 Page: 4 of 6 PageID #: 19 state a claim upon which relief may be granted.2 The Prison Litigation Reform Act of 1996 provides, in relevant part: In no event shall a prisoner bring a civil action ... under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action ... in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Therefore, plaintiff may proceed in forma pauperis in this action only if he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The instant complaint contains no allegations establishing that plaintiff is under imminent danger of serious physical injury. Therefore, he may not proceed in forma pauperis in this action. See 28 U.S.C. § 1915(g). Even if plaintiff were allowed to proceed in forma pauperis in this matter, the complaint would be dismissed for failure to state a claim because the named defendant cannot be sued under § 1983. Section 1983 was designed to provide a “broad remedy for violations of federally protected civil rights.” Monell v. Dep’t of Soc. Servs, 436 U.S. 658, 685 (1978). The essential elements of a constitutional claim under § 1983 are that the defendant acted under color of state law, and that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right. Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). To that end, only state actors can be held liable under § 1983. Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (stating that § 1983 secures constitutional rights from government infringement, not infringement by private parties). 2 See Engel v. Governor of Missouri, et al., No. 1:20-cv-217 HEA (E.D. Mo. Dec. 15, 2020); Engel v. United States of America, et al., No. 4:20-cv-1742 MTS (E.D. Mo. Dec. 18, 2020); Engel v. Missouri Courts, et al., No. 4:20-cv1258 SPM (E.D. Mo. Dec. 21, 2020). -4- Case: 4:21-cv-00900-RWS Doc. #: 4 Filed: 09/08/21 Page: 5 of 6 PageID #: 20 A private party, like defendant Verizon Wireless, may only be held liable if it is a “willful participant in joint activity with the State or its agents.” Gibson v. Regions Fin. Corp., 557 F.3d 842, 846 (8th Cir. 2009) (internal citation omitted). In order to state a claim against a private party under § 1983, the plaintiff “must allege, at the very least, that there was a mutual understanding, or a meeting of the minds, between the private party and the state actor.” Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993). Here, private-party defendant Verizon Wireless is not a state actor. In addition, there are no factual allegations pled which establish that defendant had a mutual understanding with any state actor to deprive plaintiff of his constitutional rights. As such, plaintiff’s complaint fails to state a claim on which relief may be granted under 42 U.S.C. § 1983. Finally, the complaint would be subject to dismissal because it is malicious. As explained above, plaintiff has repeatedly and knowingly engaged in litigation practices that amount to abuse of the judicial process. It is apparent he filed the instant complaint as part of a general campaign of harassment, not in a legitimate attempt to vindicate a cognizable right. See In re Tyler, 839 F.2d 1290, 1293 (8th Cir. 1988) (per curiam) (noting that an action is malicious when it is a part of a longstanding pattern of abusive and repetitious lawsuits); Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff’d 826 F.2d 1061 (4th Cir. 1987) (an action is malicious when it is undertaken for the purpose of harassing the defendants rather than vindicating a cognizable right); Cochran v. Morris, 73 F.3d 1310, 1316 (4th Cir. 1996) (when determining whether an action is malicious, the Court need not consider only the complaint before it, but may consider the plaintiff’s other litigious conduct). Plaintiff’s request for leave to proceed in forma pauperis will be denied, and this case will be dismissed without prejudice to the filing of a fully-paid complaint. Additionally, the Court will -5- Case: 4:21-cv-00900-RWS Doc. #: 4 Filed: 09/08/21 Page: 6 of 6 PageID #: 21 instruct the Clerk of Court to request that the agency having custody of plaintiff begin making payments in accordance with 28 U.S.C. § 1915(b)(2) until the full $402 civil filing fees are paid in full. Plaintiff is once again advised that his litigation practices are abusive and he is cautioned to avoid such practices in the future. For each such complaint plaintiff files, the Court will instruct the Clerk of Court to begin debiting his prison account to pay the civil filing fees. Plaintiff is further cautioned that the Court may impose monetary sanctions upon him if he continues his abusive litigation practices in the future. Accordingly, IT IS HEREBY ORDERED that plaintiff may not proceed in forma pauperis in this action. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice to the filing of a fully-paid complaint. IT IS FURTHER ORDERED that the Clerk of Court shall request that the agency having custody of plaintiff begin making payments in accordance with 28 U.S.C. § 1915(b)(2) until the full $402 civil filing fees are paid in full. IT IS FINALLY ORDERED that plaintiff’s motion to appoint counsel [ECF No. 3] is DENIED as moot. An Order of Dismissal shall accompany this Memorandum and Order. Dated this 8th day of September, 2021. RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE -6-

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