Mallgren v. United States of America

Filing 7

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DISMISSING 1 Complaint, DENYING AS MOOT 3 MOTION to Waive DENYING AS MOOT 4 MOTION for Order. IT IS ORDERED that: (i) Plaintiff's Complaint, Doc. 1 , filed November 28, 2 016, is DISMISSED as frivolous.(ii) This case is DISMISSED without prejudice. (iii) Plaintiff's Fee Waiver Request, Doc. 3 , filed November 28, 2016, is DENIED as moot.(iv) Electronic Filing Request, Doc. 4 , filed November 28, 2016, is DENIED as moot. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTHONY BRIAN MALLGREN,
Plaintiff,
v.

No. 16cv1295 MV/WPL

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on pro se Plaintiff Anthony Brian Mallgren’s: (i)
Complaint, Doc. 1, filed November 28, 2016 (“Complaint”); (ii) Fee Waiver Request, Doc. 3, filed
November 28, 2016; and (iii) Electronic Filing Request, Doc. 4, filed November 28, 2016. For
the reasons stated below, the Court will: (i) DISMISS Plaintiff’s Complaint as frivolous; (ii)
DISMISS this case without prejudice; (iii) DENY Plaintiff’s Fee Waiver Request as moot; and
(iv) DENY Plaintiff’s Electronic Filing Request as moot.
This is the third of four cases that Plaintiff has filed in this Court in November and
December, 2016. See Mallgren v. Thomas, No. 16cv1256 JCH/KBM; Mallgren v. United States,
No. 16cv1285 JAP/KBM; Mallgren v. United States, No. 16cv1351 KBM. In the first case,
United States District Judge Judith C. Herrera noted that Plaintiff had previously filed 98 cases in
federal courts since September 2012, many of which were frivolous or meritless, described how
Plaintiff has failed to comply with Court rules in her case, and informed Plaintiff that the District
of New Mexico has the third highest number of total filings per judgeship in the federal district
court system and, consequently, has a strong interest in managing its docket and minimizing the
impact of frivolous or meritless actions on its resources. See Doc. 14 at 2-3, Mallgren v. Thomas,
No. 16cv1256 JCH/KBM (December 7, 2016). Judge Herrera then notified Plaintiff that failure

to comply with the Federal Rules of Civil Procedure, the District of New Mexico’s Local Rules of
Civil Procedure, and orders and other rules of the Court, may result in the imposition of filing
restrictions on Plaintiff.
Judge Parker dismissed the complaint in the second case as frivolous and dismissed the
case for lack of jurisdiction. See Doc. 6 at 2-4 in Mallgren v. United States, No. 16cv1285
JAP/KBM (December 12, 2016).
The Complaint in this case, which was filed before Judge Herrera entered her Order, is also
frivolous. Plaintiff’s Complaint states in its entirety:
Incorporation: 16-cv-NYSD-5805
16-2-2917
16-cv-DC-1770
13-cv-DC-1200
16-cv-NM-1256
16-cv-NM-1285
Complaint at 2-3. The Complaint does not refer to the exhibit attached to the Complaint which
includes an email regarding Plaintiff’s CM/ECF account for this Court.
The Court will dismiss the Complaint as frivolous because it does not contain a short and
plain statement of a claim showing that Plaintiff is entitled to relief or a demand for the relief
sought, as required by Fed. R. Civ. P. 8(a)(2) and (3). See Triplett v. Triplett, 166 Fed.Appx. 338,
339-340 (10th Cir. 2006) (Dismissal of an in forma pauperis complaint as frivolous is not an abuse
of discretion based on a determination that the pro se litigant did not state a viable legal claim and
that the complaint consisted of little more than unintelligible ramblings); 28 U.S.C. § 1915(e)(2)
(“the court shall dismiss the case at any time if the court determines that . . . the action . . . is
frivolous . . . [or] fails to state a claim”).

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The Complaint also does not contain “a short and plain statement of the grounds for the
court’s jurisdiction” as required by Fed. R. Civ. P. 8(a)(1). As the party seeking to invoke the
jurisdiction of this Court, Plaintiff bears the burden of alleging facts that support jurisdiction. See
Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013) (“Since federal courts are courts of
limited jurisdiction, we presume no jurisdiction exists absent an adequate showing by the party
invoking federal jurisdiction”). The Court will dismiss this case without prejudice because it
lacks jurisdiction to consider Plaintiff’s claims. See Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action”);
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.2006) (“[D]ismissals for lack of
jurisdiction should be without prejudice because the court, having determined that it lacks
jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying
claims.”).
Because it is dismissing this case, the Court will deny Plaintiff’s Fee Waiver Request and
Electronic Filing Permission Request as moot.
The Court reminds Plaintiff that if he continues to file frivolous actions or documents, or
fails to comply with Court orders or rules, the Court may impose filing restrictions on Plaintiff.
See Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989) (“[E]ven onerous conditions may be
imposed upon a litigant as long as they are designed to assist the district court in curbing the
particular abusive behavior involved”).
IT IS ORDERED that:
(i) Plaintiff’s Complaint, Doc. 1, filed November 28, 2016, is DISMISSED as frivolous.
(ii) This case is DISMISSED without prejudice.

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(iii) Plaintiff’s Fee Waiver Request, Doc. 3, filed November 28, 2016, is DENIED as
moot.
(iv) Electronic Filing Request, Doc. 4, filed November 28, 2016, is DENIED as moot.

__________________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

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