ROSIERE v. UNITED STATES OF AMERICA

Filing 61

OPINION filed. Signed by Judge Brian R. Martinotti on 10/12/2017. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
SHAUN ROSIERE,
:
:
Civil Action No. 16-0341-BRM-TJB
Plaintiff,
:
:
v.
:
:
OPINION
UNITED STATES OF AMERICA,
:
:
Defendant.
:
____________________________________:
MARTINOTTI, DISTRICT JUDGE
Before this Court are: (1) a Complaint filed by pro se Plaintiff Shaun Rosiere (“Plaintiff”),
proceeding in forma pauperis; (2) a Motion to Dismiss the Complaint, pursuant to Federal Rule of
Civil Procedure 12(b)(1) (ECF No. 37) filed by Defendant United States of America
(“Defendant”), which Plaintiff opposes (ECF No. 43); and (3) eight motions filed by Plaintiff,
including: (a) two duplicative Motions for Cross Examination of All Individuals Who Supplied
Affidavits and Declarations; 1 (b) a Motion for Determination of Material Fact on the Issue of the
Mail Box Rule; (c) a Motion for Determination of Material Facts to Spell Out the Claims (Multiple)
of the Case; (d) a Motion to Stay Case; (e) a Motion for Determination of Material Fact; (f) a
Motion for the Government Attorney to Follow Rules of Court and Local Procedures and Motion
to Strike an Unauthorized Filing Without Leave of the Court; and (g) a Motion for the Issuance of
the Great Writ. (See ECF Nos. 41, 42, 44, 45, 46, 47, 54, and 55.) Defendant filed a joint response
to a majority of Plaintiff’s pending motions. (See ECF No. 53.)
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One of the Motions for Cross Examination of All Individuals Who Supplied Affidavits and
Declarations (ECF No. 42) is inadvertently named as a Motion for Extension of Time to File
Response on the Docket Report.
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On January 19, 2016, Plaintiff submitted a pro se Complaint and an application to proceed
in forma pauperis, which was granted on January 21, 2016. (ECF No. 1-2 and ECF No. 2.) Because
Plaintiff is proceeding in forma pauperis in this matter, his Complaint is subject to screening “at
any time” pursuant to 28 U.S.C. § 1915(e)(2). Pursuant to the statute, the Court is required to
dismiss any claims which are frivolous, malicious, fail to state a claim for relief, or seek damages
from a defendant who is immune. 28 U.S.C. § 1915(e)(2)(B). Pursuant to Federal Rule of Civil
Procedure 78(b), the Court did not hear oral argument on the motions. For the reasons set forth
below, Plaintiff’s Complaint is DISMISSED with prejudice.
I.

BACKGROUND
Plaintiff’s Complaint (ECF No. 1) before this Court is one of several nearly identical

lawsuits arising out of his FOIA requests. Over the span of approximately fourteen months,
Plaintiff filed eight other cases involving FOIA requests in several federal districts, almost all
relating to the two New Jersey criminal cases he was involved in as a defendant. See Rosiere v.
United States, 17–2468 (D. Nev.) (pending); Rosiere v. United States, 16–2286 (D. Nev. May 9,
2017) (6 FOIA requests dismissed as “frivolous and malicious”); Rosiere v. United States, 15–
2187 (D. Nev. Jan. 3, 2017) (15 FOIA requests dismissed as “frivolous and malicious”); Rosiere
v. United States, 16–1251 (D. Colo. July 21, 2016) (5 FOIA requests dismissed as malicious);
Rosiere v. United States, 16-0905 (D. Or. July 1, 2016) (8 FOIA requests dismissed for improper
venue); Rosiere v. United States, 16–0260 (D. Haw. June 20, 2016) (14 FOIA requests dismissed
for improper venue); Rosiere v. United States, 16–3571 (CD. Cal. May 25, 2016) (5 FOIA requests
dismissed for improper venue and duplicative claims); Rosiere v. United States, 16–0143 (D. Colo.
Mar. 16, 2016) (15 FOIA requests dismissed as duplicative).

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Specifically, Plaintiff’s Complaint seeks a host of documents under the Freedom of
Information Act (“FOIA”), 5 U.S.C. §§ 552, et seq., associated with two criminal cases in which
Plaintiff was a defendant, as well as other unrelated documents. (ECF No. 1 at 1.) At issue are
fifteen different FOIA requests, with enumerated sub-sections, Plaintiff submitted to four different
agencies on July 18, 2015. (See Exs. 1-15 to ECF No. 1.) Requests 2, 3, 5, 6, 7, 8, 9, 10, 13, 14,
and 15 are addressed to the Executive Office of United States Attorneys (“EOUSA”). (Exs. 2, 3,
5, 6, 7, 8, 9, 10, 13, 14, and 15 to ECF No. 1.) These requests largely concern issues associated
with his two criminal cases in the District of New Jersey in which he was a defendant, such as
evidence in his criminal cases, requests regarding his co-defendants, requests regarding other
entities involved in the criminal cases, Plaintiff’s plea agreement, discovery material provided to
Plaintiff and his co-defendants, etc. (See id.) Request 1 is addressed to the Internal Revenue Service
(“IRS”) and requests “a copy of Shaun R. Rosiere IRS records (all document records).” (Ex. 1 to
ECF No. 1.) Request 4 is addressed to the Social Security Administration (“SSA”) and requests
“all documents at your agency held and related to: Shaun R. Rosiere.” (Ex. 4 to ECF No. 1.) Lastly,
requests 11 and 12 are addressed to the Federal Bureau of Prisons (“BOP”) and seek information
regarding conditions of confinement at two BOP institutions, FPC Florence in Colorado and FCI
Sandstone in Minnesota. (Exs. 11-12 to ECF No. 1.) Plaintiff contends all four agencies failed to
respond to his requests and seeks all documents requested, as well as additional documents and
the creation of record affidavits. (See ECF No. 1.)
Accordingly, on January 19, 2016, Plaintiff filed this action. (See id.) On March 3, 2017,
Defendant filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing
Plaintiff is not entitled to any relief sought because most of his requests are moot since Defendant
released the records to Plaintiff after the commencement of this litigation and because Plaintiff

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failed to exhaust his administrative remedies with regard to his remaining requests. (See ECF No.
37.) Plaintiff opposes the Motion arguing, in relevant part, he did not receive the alleged released
records. (ECF No. 43.)
Plaintiff has filed numerous motions in this matter, eight of which are pending before the
Court. For example, on March 13, 2017, Plaintiff filed two duplicative “Motion[s] for Cross
Examination of All Individuals Who Supplied Affidavits and Declarations.” (ECF Nos. 41 and
42.) On March 15, 2017, Plaintiff filed a “Motion for Determination of Material Fact on the Issue
of the Mail Box Rule,” a “Motion for Determination of Material Facts to Spell Out the Claims
(Multiple) of the Case” and a “Motion to Stay Case.” (ECF Nos. 44, 45, and 46.) On March 20,
2017, Plaintiff filed a “Motion for Determination of Material Fact.” (ECF No. 47.) Defendant filed
a joint response to Plaintiff’s pending motions on April 21, 2017. (ECF No. 53.) On April 28,
2017, Plaintiff filed a “Motion for the Gov. Attorney to Follow Rules of Court and Local
Procedures and Motion to Strike an Unauthorized Filing Without Leave of the Court.” (ECF No.
54.) On May 1, 2017, Plaintiff filed a “Motion for the Issuance of the ‘Great Writ.’” (ECF No. 55.)
On May 11, 2017, Judge Tonnianne J. Bongiovanni entered a Letter Order instructing
Plaintiff “to refrain from filing any addition motions” without the permission of the Court. (See
ECF No. 57.) She noted “the repeated filing of motions without permission of the Court is not
appropriate and is becoming abusive.” (Id. at 2.)
II.

LEGAL STANDARD
Because Plaintiff is proceeding in forma pauperis in this matter, his Complaint is subject

to screening “at any time” pursuant to 28 U.S.C. § 1915(e)(2). Pursuant to the statute, the Court is
required to dismiss any claims which are frivolous, malicious, fail to state a claim for relief, or
seek damages from a defendant who is immune. 28 U.S.C. § 1915(e)(2)(B). “The legal standard

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for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is
the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).”
Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220,
223 (3d Cir. 2000)).
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [Plaintiff].” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A] complaint attacked by a . . . motion to dismiss
does not need detailed factual allegations.” Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007).
However, the plaintiff’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286.
Instead, assuming the factual allegations in the complaint are true, those “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” required the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it

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must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557). “Determining whether a
complaint states a plausible claim for relief [is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). Moreover, while pro se pleadings are liberally
construed, “pro se litigants still must allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis
added).
III.

DECISION
Plaintiff has been granted leave to proceed in forma pauperis. (ECF No. 1.) Therefore, the

Court is required to review his Complaint under § 1915(e)(2), which provides in relevant part that
a Court “shall dismiss the case at any time if the court determines that . . . the action or appeal (i)
is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)
(emphasis added). “A court that considers whether an action is malicious must, in accordance with
the definition of the term ‘malicious,’ engage in a subjective inquiry into the litigant’s motivations
at the time of the filing of the lawsuit to determine whether the action is an attempt to vex, injure
or harass the defendant.” See Daley v. U.S. Attorneys Office, 538 F. App’x 142, 143–44 (3d Cir.
2013) (quoting Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995)); see also Lindell v.
McCallum, 352 F.3d 1107, 1109–10 (7th Cir. 2003) (“Malicious,” although “sometimes treated as
a synonym for 'frivolous,’ . . . is more usefully construed as intended to harass.”) (citation omitted).

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Similarly, an action may be considered malicious if it “is plainly abusive of the judicial process.”
Abdul–Akbar v. Dep’t of Corr., 910 F. Supp. 986, 999 (D. Del. 1995) (citations omitted), aff’d,
111 F.3d 125 (3d Cir. 1997).
The Court takes judicial notice of facts where they are a matter of public record. Schmidt
v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). A review of the Public Access to Court Electronic
Records (PACER) indicates Plaintiff has filed at least nine actions involving FOIA requests in
several federal districts in a span of fourteen months. 2 More recently, on September 21, 2017,
Plaintiff filed a duplicative action in the District of Nevada alleging, “The United States of America
has failed to produce approximately 500 plus document [sic] that are known by the United States
that are responsive to numerous FOIA request. [sic] Thus, the gov. [sic] has failed to comply with
the mandates set by federal law.” See Rosiere v. United States, 17–2468 (D. Nev.) (ECF No. 1-2
at 1). In addition, Plaintiff admits he received the FOIA requests made to the EOUSA in this instant
action, but instead challenges the substance of the EOUSA’s response and the determination
regarding records to be withheld. (See id.)
Plaintiff’s admission in that complaint is inconsistent with his opposition brief before this
Court, where he states he did “not receive the alleged 900 pages” provided by Defendant. (ECF
No. 43 at 1.) While the Court cannot, at this time, make a factual determination regarding the FOIA
production, Plaintiff’s inconsistent allegations regarding the same FOIA requests, the amount of
federal actions Plaintiff has initiated in separate federal districts over a short time period, as well
as the quantity of FOIA requests filed (see Exs. 1-15 to ECF No.1) and the number of motions
filed in this action raise red flags for the Court. Plaintiff’s subjective motivation for filing the large

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On July 10, 2014, Plaintiff also filed approximately eleven FOIA requests before this Court.
Rosiere v. United States, 14–04373 (D.N.J. Nov. 24, 2014) (dismissed for lack of subject matter
jurisdiction).
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number of FOIA requests and the related federal lawsuits, particularly the most recent request in
the District of Nevada on September 21, 2017, is certainly an attempt to harass Defendant and to
abuse the judicial process. Such harassment and abuse of the judicial process will not be tolerated.
Indeed, several of Plaintiff’s cases have been dismissed as frivolous and malicious. See
Rosiere v. United States, 673 F. App’x 834, 837 (10th Cir. 2016), cert. denied, 137 S. Ct. 2221
(2017) (“The district court did not abuse its discretion in finding that [Plaintiff’s] litigation activity
was malicious.”); Rosiere v. United States, 15–2187 (D. Nev. Jan. 3, 2017), aff’d, No. 17–15103
(9th Cir. April 18, 2017) (dismissing the FOIA complaint as “frivolous”); Rosiere v. United States,
16–2286 (D. Nev. May 9, 2017) (6 FOIA requests dismissed as “frivolous and malicious”).
Likewise, the District of Nevada dismissed a similar complaint, although not a FOIA request, filed
by Plaintiff for lack of subject matter jurisdiction and because the Complaint was “clearly frivolous
and malicious.” Rosiere v. United States, No. 17-0144, 2017 WL 2838079, at *2 (D. Nev. June 30,
2017), report and recommendation adopted, 2017 WL 3496512 (D. Nev. Aug. 15, 2017),
reconsideration denied sub nom., 2017 WL 4448578 (D. Nev. Oct. 4, 2017). In that action,
Plaintiff sought “to obtain a contract interpretation and transcript interpretation regarding a plea
agreement executed in the District of New Jersey to resolve his federal criminal charges.” Id. at 2.
The federal criminal charges he sought to resolve in that matter were the two criminal cases in
which Plaintiff was a defendant and currently seeks a host of documents under FOIA. Plaintiff
appealed the decision and the Ninth Circuit dismissed his appeal as frivolous. See Rosiere v. United
States, No. 17–71794 (9th Cir. April 28, 2017).
The Court finds that the nearly identical Complaint filed in this case regarding the same
FOIA requests filed in the other federal districts is frivolous, malicious, and duplicative,
particularly in light of the quantity of FOIA requests filed (see Exs. 1-15 to ECF No.1) and number

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of motions filed in this action. Accordingly, Plaintiff’s Complaint is DISMISSED with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s Complaint is DISMISSED with prejudice.

Because Plaintiff’s Complaint is dismissed with prejudice, all pending motions (ECF Nos. 37, 41,
42, 44, 45, 46, 47, 54, and 55) are MOOT and the case is CLOSED.

Date: October 12, 2017

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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