Rosiere v. United States of America

Filing 11

ORDER that the Clerk of the Court shall file the 1 -1 Complaint but not issue Summons. Plaintiff's 6 Motion to Issue Summons, 7 Motion for Status of Case, and 8 Second Motion for Status of Case are DENIED as moot.REPORT AND RECO MMENDATION that Plaintiff's 1 Application to Proceed In Forma Pauperis be DENIED, Plaintiff's Complaint be DISMISSED, and the Clerk of the Court be instructed to enter judgment accordingly. Objections to R&R due by 7/14/2017. Signed by Magistrate Judge Peggy A. Leen on 6/29/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SHAUN ROSIERE,

Case No. 2:17-cv-00144-JAD-PAL

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Plaintiff,

v.

ORDER
- AND REPORT OF FINDINGS AND
RECOMMENDATION

UNITED STATES OF AMERICA,
Defendant.

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(IFP App. – ECF No. 1; Mots. ECF Nos. 6–8)

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This matter is before the court on Plaintiff Shaun Rosiere’s Application to Proceed In

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Forma Pauperis (ECF No. 4) pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of

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Practice. Also before the court are Rosiere’s Motion to Issue Summons (ECF No. 6), Motion for

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Status of Case (ECF No. 7), and Second Motion for Status of Case (ECF No. 8). The application

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and motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and LR

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IB 1-3 and 1-4 of the Local Rules of Practice.

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I.

IN FORMA PAUPERIS APPLICATION

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Mr. Rosiere is proceeding in this action pro se, which means that he is not represented by

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an attorney. See LSR 2-1. He has requested authority pursuant to 28 U.S.C. § 1915 to proceed in

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forma pauperis (“IFP”), meaning without prepaying the filing fees, and submitted a proposed

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complaint. Pursuant to 28 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a filing

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fee and administrative fee totaling $400 is required to commence a civil action in a federal district

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court. The court may authorize a person to commence an action without the prepayment of fees

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and costs if the person files an IFP application including an affidavit stating that he or she is unable

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to pay the initial fees. See 28 U.S.C. § 1915(a)(1); LSR 1-1. However, the court must apply “even-

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handed care” to ensure that “federal funds are not squandered to underwrite, at public expense,

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either frivolous claims” or the colorable claims of a plaintiff “who is financially able, in whole or
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in material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984)

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(collecting cases). A “district court may deny leave to proceed in forma pauperis at the outset if it

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appears from the face of the proposed complaint that the action is frivolous or without merit.”

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Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998); see also Denton v. Hernandez, 504

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U.S. 25, 31 (1992) (recognizing Congress’ concern that “a litigant whose filing fees and court costs

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are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

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filing frivolous, malicious, or repetitive lawsuits”).

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As explained in this order, the court finds that the District of Nevada lacks subject matter

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jurisdiction over Mr. Rosiere’s Complaint (ECF No. 1-1), which is also frivolous and duplicative.

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The court will therefore recommend that the IFP Application be denied.

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II.

SCREENING THE COMPLAINT

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Pursuant to § 1915(e), federal courts must screen all IFP complaints prior to a responsive

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pleading. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (§ 1915(e) applies to “all

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in forma pauperis complaints”). If the complaint states a valid claim for relief, the court will then

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direct the Clerk of the Court to issue summons to the defendant and the plaintiff must then serve

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the summons and complaint within 90 days. See Fed. R. Civ. P. 4(m). If the court determines that

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the complaint fails to state an actionable claim, the complaint is dismissed and the plaintiff is

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ordinarily given leave to amend with directions as to curing the pleading deficiencies, unless it is

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clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato,

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70 F.3d at 1106. Allegations in a pro se complaint are held to less stringent standards than formal

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pleading drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, pro se

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litigants “should not be treated more favorably than parties with attorneys of record,” Jacobsen v.

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Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); rather, they must follow the same rules of procedure

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that govern other litigants. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

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Federal courts are required to dismiss an IFP action if the complaint fails to state a claim

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upon which relief may be granted, is legally “frivolous or malicious,” or seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In determining whether

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a complaint is frivolous and therefore warrants complete or partial dismissal, a court is not bound
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“to accept without question the truth of the plaintiff’s allegations.” Denton, 504 U.S. at 32.

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Allegations are frivolous when they are “clearly baseless” or lack an arguable basis in law and

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fact. Id.; see also Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolous claims include those

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based on legal conclusions that are untenable (e.g., claims against defendants who are immune

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from suit or claims of infringement of a legal interest that clearly does not exist), as well as claims

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based on fanciful factual allegations (e.g., fantastic or delusional scenarios). Neitzke, 490 U.S. at

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327–28; McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A complaint lacks an arguable

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basis in law if controlling legal authority requires a finding that the facts alleged fail to establish a

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legal claim. Guti v. U.S. Immigration & Naturalization Serv., 908 F.2d 495, 496 (9th Cir. 1990).

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The Ninth Circuit has repeatedly held that a district court may dismiss as frivolous a complaint

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“that merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103,

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1105 n.2 (9th Cir. 1995); Phillips v. Salt River Police Dept., 586 F. App’x 381 (9th Cir. 2014).;

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Martinez v. Bureau of Immigration & Customs Enforcement, 316 F. App’x 640 (9th Cir. 2009).

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Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger,

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437 U.S. 365, 374 (1978). A court’s jurisdiction to resolve a case on its merits requires a showing

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that the plaintiff has both subject matter and personal jurisdiction. Ruhrgas AG v. Marathon Oil

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Co., 526 U.S. 574, 577 (1999). “A federal court is presumed to lack jurisdiction in a particular

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case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the

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Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

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A. Rosiere’s Factual Allegations and Claims for Relief

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Mr. Rosiere states that the sole purpose of his Complaint (ECF No. 1-1) is to obtain a

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contract interpretation and transcript interpretation regarding a plea agreement executed in the

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District of New Jersey to resolve his federal criminal charges. See United States v. Shaun Rosiere,

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Case Nos. 1:08-cr-00629, 1:09-cr-00720 (D.N.J.). Attached to the Complaint is a letter dated

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September 17, 2009, which sets forth the plea agreement between Rosiere and the United States

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Attorney for the District of New Jersey. Compl. (ECF No. 1-1), Exhibit A at 4–10. He alleges

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there are nine “contract issues” with the plea agreement which require this court’s interpretation.

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Also attached is a partial transcript of the criminal proceedings on September 17, 2009, in which
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he entered a guilty plea. Id., Exhibit B at 11–15. He alleges three additional “transcript issues”

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which require this court’s interpretation. The Complaint states that Mr. Rosiere is not asking the

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court to overturn his federal conviction; thus, this is not a habeas corpus action pursuant to 28

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U.S.C. § 2255. He further asserts that the District of Nevada is the appropriate federal court to

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resolve the disagreement because the terms of his federal probation do not permit him to leave

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Nevada until November 18, 2018.

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For the reasons discussed below, the court finds that the District of Nevada lacks subject

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matter jurisdiction over Mr. Rosiere’s Complaint, which is also frivolous and duplicative. The

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court will therefore recommend dismissal of this action.

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B. Analysis

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Mr. Rosiere has filed several lawsuits in numerous federal courts relating to his New Jersey

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criminal cases. Judicial notice is properly taken of proceedings in other courts, both within and

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without the federal judicial system, if those proceedings have a direct relation to matters at issue.

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See, e.g., McQuillion v. Schwarzenegger, 369 F.3d 1091, 1094 (9th Cir. 2004) (taking judicial

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notice of district court proceedings to determine whether prior alleged § 1983 claims were

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dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)). The court takes judicial notice of

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the proceedings in Rosiere’s criminal cases in the District of New Jersey as well as the federal civil

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actions he has filed across the country. Most of his recent lawsuits filed in 2015 and 2016 have

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involved requests under the Freedom of Information Act (“FOIA”) related to his conviction.1

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Nearly all have been dismissed as duplicative, frivolous, or malicious.

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Prior to filing the FOIA actions, Mr. Rosiere sought to overturn his conviction. In July

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2011, Rosiere sought post-conviction relief from the sentencing court by filing a petition under 28

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U.S.C. § 2255 to vacate, set aside, or correct his sentence. See Rosiere v. United States, 1:11-cv-

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See Rosiere v. United States, 2:15-cv-02187 (D. Nev.) (dismissed as “frivolous and malicious”); Rosiere
v. United States, 3:16-cv-00341-BRM-TJB (D.N.J.) (filed Jan. 19, 2016) (pending); Rosiere v. United
States, 1:16-cv-00143-LTB (D. Colo.) (dismissed as duplicative); Rosiere v. United States, 1:16-cv-01251LTB (D. Colo.) (dismissed as duplicative); Rosiere v. United States, 1:16-cv-00260 (D. Haw.) (dismissed
for improper venue); Rosiere v. United States, 3:16-cv-00905-HZ (D. Or.) (same); Rosiere v. United States,
2:16-cv-03571-DSF-GJS (C.D. Cal.) (dismissed for improper venue and duplicative claims); Rosiere v.
United States, 3:16-cv-02765-LB (N.D. Cal.) (transferred to District of Nevada for improper venue);
Rosiere v. United States, 2:16-cv-02286-GMN-PAL (D. Nev.) (dismissed as frivolous and malicious).

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04404 (D.N.J.). The court in the District of New Jersey denied his petition for § 2255 relief. Id.,

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Sept. 25, 2012 Opinion (ECF No. 20). Mr. Rosiere appealed that decision to the Court of Appeals

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for the Third Circuit. The Third Circuit determined that Rosiere knowingly and voluntarily waived

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his right to collaterally attack his conviction and sentence, and affirmed the district court’s denial

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of the § 2255 petition. Id., Mar. 7, 2013 Order (ECF No. 27).

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In July 2014, Mr. Rosiere filed two civil actions related to his criminal conviction in the

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District of New Jersey. See Rosiere v. United States, 1:14-cv-4373 & 1:14-cv-4647 (D.N.J.).

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Rosiere based these two civil suits on Rule 60(d) of the Federal Rules of Civil Procedure.

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However, the clerk of the court initially designated his lawsuits as prison civil rights actions

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pursuant to 28 U.S.C. § 1983. Case No. 1:14-cv-4647, Nov. 24, 2014 Mem. Opinion (ECF No. 14)

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at 8 n.6. The court determined that the complaints in both lawsuits actually sought to vacate, set

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aside, or correct Rosiere’s federal sentence and, therefore, construed the actions as arising under

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28 U.S.C. § 2255. Id.

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One of Mr. Rosiere’s 2014 lawsuits specifically challenged the validity of the plea

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agreement he executed on September 17, 2009, and asserted that the plea agreement must be

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deemed unenforceable. Id., Compl. (ECF No. 1) at 12–13. The complaint challenged “the

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circumstances surrounding Plaintiff’s execution of the September 17, 2009 plea agreement, as such

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circumstances existed at the time of execution.” Id., at 8. The court compared Rosiere’s July 2011

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§ 2255 petition with his new complaints and determined that the opinion dismissing Rosiere’s

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petition principally addressed his contentions regarding the plea agreement and related arguments.

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Id., Mem. Opinion (ECF No. 14) at 8. The court found the new complaints constituted successive

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§ 2255 petitions. Id. at 8–9. Mr. Rosiere, however, neither sought nor obtained an order from the

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Third Circuit authorizing consideration of successive petitions. Id. at 9. The court also found that

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28 U.S.C. § 2241 did not provide him any alternative mechanism for relief. Id. at 10. Rosiere’s

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complaints “set forth factual challenges to his federal sentence that he raised—or could have

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raised—in connection with his first § 2255 petition,” and his prior lack of success on those

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arguments the court concluded Rosiere could not make the same claims in a § 2241 petition. Id.

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at 12. The New Jersey court therefore dismissed the complaints for lack of subject matter
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jurisdiction and instructed Rosiere to seek authorization from the Third Circuit should he desire to

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reinstate his § 2255 claims.

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In this case, Mr. Rosiere’s Complaint (ECF No. 1-1) suffers from the same jurisdictional

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defects as the 2014 lawsuits. He labels this action as one for contract and transcript interpretation

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and states that he is “not asking the court to overturn any federal conviction.” The contract he

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wants this court to interpret is his 2009 plea agreement. Below each of his contract interpretation

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issues is a description of what Rosiere says the terms means. Merely labeling a § 2255 petition as

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something else does not overcome the bar against successive petitions. See Porter v. Adams, 244

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F.3d 1006, 1007 (9th Cir. 2001); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam).

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Thus, Mr. Rosiere’s Complaint is properly construed as a successive § 2255 petition. See

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Magwood v. Patterson, 561 U.S. 320, 330–31 (2010); States v. Allen, 157 F.3d 661, 664 (9th Cir.

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1998) (explaining that a claim is considered “successive” if the “basic thrust or gravamen of the

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legal claim is the same, regardless of whether the basic claim is supported by new and different

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legal arguments” (internal quotations omitted)).

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The habeas statutes and controlling Supreme Court case law demonstrate that the District

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of Nevada and the Ninth Circuit Court of Appeals are not the correct venues for Rosiere’s

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challenge. Only the sentencing court has jurisdiction to consider a § 2255 petition. See Braden v.

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30th Judicial Circuit Court, 410 U.S. 484, 497 (1973). A petitioner must obtain an order from

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“the appropriate court of appeals” authorizing a successive petition before filing it in the district

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court. See 28 U.S.C. § 2244(b)(3)(A) (emphasis added); Burton v. Stewart, 549 U.S. 147, 157

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(2007). A district court lacks subject matter jurisdiction over any successive application not

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authorized by the appropriate court of appeals. Id.

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Mr. Rosiere was convicted in the District of New Jersey. Thus, only that District of New

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Jersey would have subject matter jurisdiction over a § 2255 challenge regarding his criminal case

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if Rosiere received permission to file a successive petition. The Third Circuit is the appropriate

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court of appeals for Mr. Rosiere to seek authorization to file any successive § 2255 petition. Mr.

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Rosiere asserts that the District of Nevada is the appropriate federal court to address his Complaint

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because under the terms of his federal probation he “may not leave the confines of Nevada” and
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therefore “this is the appropriate federal court to resolve the disagreement.”2 This district does

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not have subject matter jurisdiction merely because Rosiere is on probation in Nevada. Moreover,

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this lawsuit repeats the same contentions regarding the 2009 plea agreement that were dismissed

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in the 2014 New Jersey lawsuits. Mr. Rosiere’s Complaint is clearly frivolous and malicious,

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warranting dismissal under § 1915(e).

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Rosiere would ordinarily be given leave to amend a deficient complaint after initial

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screening; however, it is clear from the face of his Complaint that the jurisdictional deficiency

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cannot be cured by amendment. Accordingly, the court will recommend that the Complaint (ECF

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No. 1-1) be dismissed and the Clerk of the Court be instructed to close the case.
Because the court has now screened the Complaint and recommends dismissal, Rosiere’s

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pending motions are denied as moot.

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Based on the foregoing,

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IT IS ORDERED:

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1. The Clerk of the Court SHALL FILE the Complaint (ECF No. 1-1) but SHALL NOT
issue summons.

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2. Plaintiff’s Motion to Issue Summons (ECF No. 6), Motion for Status of Case (ECF

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No. 7), and Second Motion for Status of Case (ECF No. 8) are DENIED as moot.

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IT IS RECOMMENDED that:

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1. Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 1) be DENIED.

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2. Plaintiff’s Complaint be DISMISSED.

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3. The Clerk of the Court be instructed to enter judgment accordingly.

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Dated this 29th day of June, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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A review of the docket in Rosiere’s criminal cases indicates he recently filed a notice of appeal on May
2, 2017. See United States v. Shaun Rosiere, 1:08-cr-00629 (D.N.J.), Notice of Appeal (ECF No. 409). If,
as he alleges, he is physically restricted to Nevada this does not prevent him from seeking relief in the
appropriate forum.

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NOTICE

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This Report of Findings and Recommendation is submitted to the assigned district judge

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pursuant to 28 U.S.C. § 636(b)(1) and is not immediately appealable to the Court of Appeals for

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the Ninth Circuit. Any notice of appeal to the Ninth Circuit should not be filed until entry of the

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district court’s judgment. See Fed. R. App. P. 4(a)(1). Pursuant to LR IB 3-2(a) of the Local Rules

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of Practice, any party wishing to object to a magistrate judge’s findings and recommendations of

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shall file and serve specific written objections, together with points and authorities in support of

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those objections, within 14 days of the date of service. See also 28 U.S.C. § 636(b)(1); Fed. R.

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Civ. P. 6, 72. The document should be captioned “Objections to Magistrate Judge’s Report of

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Findings and Recommendation,” and it is subject to the page limitations found in LR 7-3(b). The

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parties are advised that failure to file objections within the specified time may result in the district

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court’s acceptance of this Report of Findings and Recommendation without further review. United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). In addition, failure to file timely

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objections to any factual determinations by a magistrate judge may be considered a waiver of a

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party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to

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the recommendation. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991); Fed. R. Civ. P.

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72.

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