Dingman v. Social Security Administration

Filing 16

DECISION AND ORDER granting deft's 13 Motion to Dismiss for Lack of Subject Matter Jurisdiction and dismissing pltf's complaint. Signed by Magistrate Judge Therese Wiley Dancks on 11/14/16. [Served by certified mail.] (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ALENE M. DINGMAN,
Plaintiff,
1:16-CV-00393
(TWD)

v.
SOCIAL SECURITY ADMINISTRATION,
Defendant.
_____________________________________________
APPEARANCES:
ALENE M. DINGMAN
Plaintiff pro se
P.O. Box 4374
Queensbury, New York 12804
HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
Counsel for Defendant
Room 218
James T. Foley U.S. Courthouse
Albany, New York 12207

EMILY FISHMAN, ESQ.
Special Assistant United States Attorney

OFFICE OF GENERAL COUNSEL
Social Security Administration
26 Federal Plaza, Room 3904
New York, New York 10278

STEPHEN P. CONTE, ESQ.
Chief Counsel, Region II

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Alene Dingman (“Dingman”) has commenced this action against Defendant,

Acting Commissioner of the Social Security Administration (“SSA”) Carolyn Colvin

(“Commissioner’) under the Social Security Act, 42 U.S.C. § 405(g).1 In her complaint,2
Plaintiff seeks a determination that she was entitled to Title II disability benefits during the time
for which an overpayment was assessed; that the overpayment was waived by the SSA; and that
she is entitled to the return of $1,341.00 in Federal income tax refunds taken by the Treasury
Department in 2015 and 2016 as partial repayment of the overpayment. (See Dkt. Nos. 1 and
11.3) Plaintiff has filed a voluntary consent to the jurisdiction of a Magistrate Judge in
accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, N.D.N.Y. Local Rule
72.2(b) and General Order 18. (Dkt. No. 10.)
The Commissioner has moved to dismiss Plaintiff’s complaint for lack of subject matter
jurisdiction. (Dkt. No. 13.) In response to the Commissioner’s motion, Plaintiff has submitted a
single page in the form of a notice of motion asking that the case not be dismissed and that the
Court find that there was no overpayment because she was entitled to disability benefits, and that
she is entitled to return of the Federal income tax refunds taken from her in 2015 and 2016.
(Dkt. No. 15.) For the reasons discussed below, the Commissioner’s motion to dismiss the
complaint for lack of subject matter jurisdiction is granted.

1

Dingman erroneously commenced this action as a civil rights lawsuit brought pursuant
to 42 U.S.C. § 1983. (Dkt. No. 1.) On initial review, the Court construed the case as one
brought under 42 U.S.C. § 405(g). (Dkt. No. 12.)
2

Plaintiff’s complaint (Dkt. No. 1) and her supplement to the complaint (Dkt. No. 11)
have been deemed together to be the operative pleading in the case and are referred to herein
collectively as “complaint.” (Dkt. No. 12.)
3

References to documents cited herein are to paragraph numbers included in the
document where specifically indicated and otherwise to the page numbers assigned by the
Court’s CM/ECF electronic docketing system.
2

II.

BACKGROUND FACTS
Plaintiff filed an application for Social Security disability insurance benefits on

November 22, 1995. (Dkt. No. 13-2 at ¶ 3(a).) Although initially denied, Plaintiff was found
disabled as of October 2, 1995, at the reconsideration level. Id. The SSA subsequently
determined that due to work activity, Plaintiff had been overpaid in the amount of $9,408.50
from July 2000 to January 2001 and March 2001 to July 2001. Id. at 7. Plaintiff’s July 31, 2003,
request for a waiver of overpayment recovery was denied by the SSA on April 28, 2004, on the
grounds that Plaintiff was at fault in causing the overpayment because of her failure to report
work activity as she had agreed to do when she applied for benefits in 1995. (Dkt. No. 13-2 at 718.) In the letter from SSA advising Plaintiff of the denial of her waiver request, she was advised
of her right to seek a hearing before an administrative law judge (“ALJ”) within sixty days of
receipt of the letter if she disagreed with the determination. Id. at 17-18. Plaintiff thereafter
acknowledged the overpayment and agreed to the withholding of $50.00 from her monthly
benefit. Id. at 19-28.
On May 18, 2007, the SSA sent Plaintiff a letter informing her of the Agency’s intent to
find that she had been performing work at substantial gainful activity levels since July 2003 and
had therefore not been eligible for benefits since that time. Id. at 29-30. In a follow up letter on
June 7, 2007, Plaintiff was notified by the SSA that she had not been eligible for disability
insurance benefits since July 2003. Id. at 31-32. In the letter, Plaintiff was advised of her right
to appeal the determination in writing within sixty days of receipt of the letter. Id. at 32. The
determination resulted in an additional overpayment to Plaintiff and her daughter. Id. at ¶ 3(c).
3

Plaintiff requested reinstatement of benefits on June 7, 2007, and the request was denied
by the SSA by letter of July 19, 2007. Id. at 33-36. Plaintiff was again advised of her right to
appeal. Id. at 34. Plaintiff requested reinstatement again on July 30, 2007, and that request was
denied in a September 10, 2007, letter from SSA again advising Plaintiff of her right to appeal.
Id. at 37-40.
A subsequent request for reinstatement was denied in a February 6, 2008, letter from the
SSA in which Plaintiff was advised of her right to appeal. Id. at 41-43. On February 29, 2008,
Plaintiff requested reconsideration of her right to benefits on the grounds that she disagreed with
the determination made on her claim for disability worker or child benefits because she was
disabled due to a back condition and was previously allowed disability due to a personality
disorder. (Dkt. No. 32-2 at 44.) The SSA wrote to Plaintiff on August 7, 2008, informing her of
the determination that the original decision was correct and in accordance with the law and
regulations. Id. at 45-46. Plaintiff was advised in the letter of her right to request an
administration hearing before an ALJ within sixty days of receipt of the letter. Id. at 45.
Christina Prelle (“Prelle”), Chief of Court Case Preparation and Review Branch 4 of the Office
of Appellate Operations, Office of Disability Adjudication and Review, SSA, has stated in her
Declaration submitted on the motion, that to the best of her knowledge and belief, based upon
information available in the SSA computer systems, Plaintiff did not file an appeal. Id. at ¶ 3(d).
Overpayment in the amount of $30,432.00 present on Plaintiff’s daughter’s account was
waived by the SSA on January 2, 2008. Id. at 47-48; see also ¶ 3(e). By letter of August 6,
2012, the SSA advised Plaintiff that an adjustment of her overpayment had been made reducing
the overpayment to $40,778.20. Id. at 49-51. Plaintiff was advised of her right to appeal the
4

determination. Id.
On November 29, 2013, in a Special Determination, the SSA concluded that further
collection efforts to recover the $40,778.20 overpayment were futile, and that the debt was not
recoverable by normal recovery operations. Id. at 54-55. Plaintiff had been notified previously
by the Department of the Treasury on January 3, 2008, and February 1, 2008, that her Social
Security benefit payment and other federal payments might be reduced to pay her delinquent debt
without further notice. (Dkt. No. 13-2 at 52-53.) On April 22, 2015, and May 11, 2016, the SSA
notified Plaintiff that it had received Federal or State payments due her in the amounts if $555.00
and $786.00, respectively, and used them toward the overpayment of her disability income
benefit overpayment. Id. at 57, 61. The amounts taken were from Federal income tax refunds
due Plaintiff. (Dkt. Nos. 1 at ¶ 5; 11 at 1.)
According to Plaintiff, she applied for and received disability income benefits for a torn
meniscus in her knee from November 1995 through March 2008. (Dkt. No. 1 at 5.) After March
2008, when her disability benefits had ended, Plaintiff received notification to pay a lump sum of
the benefits back as an overpayment. Id. Plaintiff thereafter went to the SSA office in
Queensbury, New York, and met with an office worker who informed her that she was not
required to and did not have to pay back any of the overpayment. Id. The office worker told her
that the office would waive the total amount of the overpayment, and she would not have to pay
any amount. Id.
Plaintiff also contends that she was entitled to benefits during the relevant time period
and should not be required to pay back any of the overpayment. Id. In addition, Plaintiff claims
that she cannot afford to repay the overpayment due to lack of funds and inadequate income from
5

employment. Id. According to Plaintiff, she was allowed to earn $10,000 a year while collecting
disability benefits, and that if she made more than that her benefit payment would be adjusted.
Id. Plaintiff claims that her disability benefit ended when the doctor decided her knee was
healed. Id.
The relief sought by Plaintiff is a waiver of the overpayment on the grounds that she was
entitled to benefits, and reimbursement of the $555.00 and $786.00 taken from her Federal
income tax refunds. (Dkt. Nos. 1 at 6; 11 at 1.)
III.

ANALYSIS
A.

Subject Matter Jurisdiction Over Disability Benefit Claims Arising Under
Title II of the SSA

A “case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
[of the Federal Rules of Civil Procedure] when the district court lacks the statutory or
constitutional power to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir.
2011). The “plaintiff asserting subject matter has the burden of proving by a preponderance of
the evidence that it exists.” Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002). The court may
refer to evidence outside the pleadings in resolving a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1). Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
The United States, as sovereign, including its agencies,“is immune from suit save as it
consents to be sued . . . and the terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.” United States v. Testan, 424 U.S. 392, 300 (1976) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)); F.D.I.C. v. Meyer, 510 U.S. 471, 475
(1994). “A waiver of the Federal Government’s sovereign immunity will be strictly construed, in

6

terms of its scope, in favor of the sovereign.” Lana v. Pena, 518 U.S. 187, 192 (1996).
The Social Security Act (“Act”) waives the SSA’s sovereign immunity in limited
circumstances. As to claims involving Title II disability benefits, federal courts may review
“final decisions” of the SSA. See 42 U.S.C. § 405(g) & (h). Section 405(g) of the Act provides
that “[a]ny individual, after any final decision of the Commissioner of Social Security made after
a hearing to which he was a party . . . may obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of notice of such decision or within such
time as the Commissioner allows.”
Section 405(h) limits judicial review to the review permitted under § 405(g). It mandates
that
No findings of fact or decision of the Commissioner of Social
Security shall be reviewed by an person, tribunal, or government
agency except as herein provided. No action against the United
States, the Commissioner of Social Security, or any officer or
employee thereof shall be brought under section 1331 or 1346 of
Title 28 to recover on any claim arising under this subchapter.
42 U.S.C. § 405(h). See Shalala v. Illinois Council on Long Term Care, Inc. 529 U.S. 1, 12
(2000) (restriction against Ҥ 405(h) applies where the Act provides both standing and the
substantive basis for the presentation of a claim . . . .” (citation and internal quotation marks
omitted)); Weinberger v. Salfi, 422 U.S. 749, 801 (1975) (it is clear from Sections 405(g) & (h)
that “the only civil action permitted to an individual on any claim arising under Title II of the Act
is an action to review the final decision of the Secretary made after a hearing” (internal quotation
marks omitted)). “Claims for money, claims for other benefits, claims of program eligibility, and
claims that contest a sanction or a remedy” are all covered by Sections 405(g) & (h). Shalala,

7

529 U.S. at 13-14. Challenges to the SSA’s determinations regarding the existence of any
overpayment of benefits or whether an overpayment of benefits must be repaid are initial
determinations subject to the administrative review process. See C.F.R. § 404.902(j), (k)
(administrative actions subject to administrative and judicial review include those involving
overpayment of benefits); Marks v. United States, No. C07-5679 FDB, 2008 WL 803150, at * 5
(W.D. Wash. March 24, 2008)4 (“Jurisdiction to consider any claim regarding overpayment and
denial of benefits lies exclusively under 42 U.S.C. § 405(g).”).
The purpose of exhaustion of remedies provisions like those in Section 405(g) & (h),
which require an administrative hearing and final agency determination before a party can seek
judicial review, exist for the dual purposes of protecting administrative agency authority and
promoting judicial efficiency. See McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992),
superseded by statute on other grounds, Woodford v. Ngo, 548 U.S. 81 (2006). As noted by the
Commissioner in her motion papers, the term “final decision of the Commissioner” is not defined
in the Act, and “its meaning is left to the [Commissioner] to flesh out by regulation.”
Weinberger, 422 U.S. at 767. The Commissioner’s regulations provide that a claimant must
complete an administrative review process to obtain a final decision subject to judicial review.
See 20 C.F.R. § 404.900(a); Califano v. Sanders, 430 U.S. 99, 102 (1977) (“The Act and
regulations thus create an orderly administrative mechanism, with district court review of the
final decision of the [Commissioner].”) The administrative mechanism includes at least an initial
determination, which in some cases includes a request for consideration, an administrative
4

The Court will provide Plaintiff with a copy of the unpublished decision in accordance
with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
8

hearing before an ALJ and a decision, and review by the Appeals Council. See 20 C.F.R.
§404.900 et seq.
Under the applicable regulations, a claimant whose benefits are discontinued, has been
assessed an overpayment, and/or who seeks waiver of an overpayment, first receives an initial
determination. See 20 C.F.R. §§ 404.506(h), 404.902(a). If dissatisfied with the determination,
the claimant may request reconsideration, and if the reconsideration determination is unfavorable
may request a de novo hearing before an ALJ. See 20 C.F.R. §§ 404.907, 404.929.
In some circumstances involving a waiver request, a hearing before an ALJ may directly follow
the initial determination. Id., § 404.907.
If a claimant is dissatisfied with the ALJ’s decision, she or he may request that the
Appeals Council review the decision. 20 C.F.R. § 404.967. The Appeals Council may either
deny review, leaving the ALJ’s determination as the final decision, or grant the request for
review and issue its own decision. Id. In either case, the claimant may then seek judicial review
of the Commissioner’s decision within sixty days after receiving notice of the Appeals Council
action. Id. A claimant receives a “final decision of the Commissioner” only after completion of
the full administrative process, and the “final decision” triggers the right to judicial review under
Section 405(g). See also 20 C.F.R. § 404.981.
B.

Exhaustion of Administrative Remedies Regarding Plaintiff’s Claim

The Commissioner has properly construed Plaintiff’s complaint as asserting three related
claims: (1) that she was entitled to disability benefits during the periods at issue and should,
therefore not be considered to have been overpaid (Dkt. Nos. 1 at 2-3, 5-6; 11 at 1); (2) that the
SSA waived the overpayment shortly after March 2008, and the Court should do likewise, id.;
9

and (3) that by extension of the foregoing, the SSA was not entitled to withhold $550.00 in 2015
and $786.00 in 2016 from her Federal income tax returns to recover the overpayment, and the
amounts should be returned to her. (Dkt. Nos. 1 at 5-6; 11 at 1.)
The Prelle Declaration and documentation submitted by the Commissioner on her motion
to dismiss establish that Plaintiff did not receive final decisions by the Commissioner on any of
the three claims prior to commencement of this action. (Dkt. No. 13-2 at 1-64.) Plaintiff has
made no claim or submitted any evidence to the contrary. (See Dkt. Nos. 1, 11, 15.)
1.

Claim of Entitlement to Disability Benefits During the Time Period at
Issue

There is no evidence indicating that plaintiff filed a request for reconsideration after she
was sent notices of the denial of her reinstatement requests on July 19 and September 10, 2007,
and advised of her right to file such a request. (Dkt. No. 13-2 at ¶ 3(d) and 33-40.) Plaintiff did
request reconsideration of the denial of a subsequent request for reinstatement of benefits sent on
February 6, 2008. Id. at ¶ 3(d) and 41-43. However, although the SSA’s August 7, 2008, notice
of reconsideration advising Plaintiff that its original finding that she was not entitled to disability
benefits, also advised Plaintiff that her next step in the administrative process was an appeal to an
ALJ, there is no evidence she undertook an appeal, nor does she claim to have done so. (Dkt.
No. 13-2 at ¶ 13(d) and 45-46.)
Because there is no evidence that Plaintiff took the administrative steps that would have
resulted in a final decision on the issue of whether she was entitled to disability benefits during
the period at issue that was then subject to judicial review, the Court finds that the District Court
lacks subject matter jurisdiction over the claim.

10

2.

Entitlement to Waiver

Plaintiff claims that the overpayment should be waived because an SSA office worker in
Queensbury, New York advised her that it had been waived some time after March 2008. (Dkt.
No. 1 at ¶¶ 4-5.) The only favorable waiver that could be located in Plaintiff’s SSA records is the
January 2, 2008, notice of waiver in the amount of $30,432.00 on Plaintiff’s daughter’s record.
(Dkt. No. 13-2 at 47-48.) There is no evidence of any ALJ or Appeals Council decision on an
unfavorable waiver determination that would render the determination final for purposes of
judicial review.5 Id. at ¶ 3(b) and 7-8, 17-18, 21-28. Furthermore, while Plaintiff may have
mistakenly believed the overpayment had been waived based upon her conversation with an SSA
office worker sometime after March 2008, SSA subsequently sent her a notice of the amount of
her overpayment with notice of her right to request reconsideration on August 6, 2012. Id. at ¶
3(f) and 49-51. There is no evidence that Plaintiff ever utilized the administrative process.
Given the foregoing, the Court finds that Plaintiff failed to take the administrative steps
that would have resulted in a final decision on the issue of whether she was entitled to a waiver
which was then subject to judicial review. Therefore, the District Court lacks subject matter
jurisdiction over the claim.
3.

Return of the $555.00 and $786.00 Payments

The SSA is authorized to request that the Department of the Treasury offset income tax
refunds due taxpayers who have an outstanding overpayment. See 31 U.S.C. § 3720A; 20 C.F.R.
§§ 404.520-404.526; Dkt. No. 13-2 at 52-53. The Commissioner’s regulations provide that a
5

The Commissioner points out in her Memorandum of Law that the November 29, 2013,
Special Determination that Plaintiff’s debt was uncollectible through normal recovery efforts, did
not constitute a waiver of overpayment. (Dkt. Nos. 13-1 at 10; 13-2 at ¶ 3(h) and 54-56.)
11

finding by the SSA that it can collect an overpayment by Federal income tax offset in not an
initial determination subject to the administrative review process and is not subject to judicial
review. See 20 C.F.R. § 404.903(p). Therefore, the Court finds that the District Court also lacks
subject matter jurisdiction over Plaintiff’s claim for return of the offset amounts.
ACCORDINGLY, it is hereby
ORDERED that the Commissioner’s motion to dismiss Plaintiff’s complaint for lack of
subject matter jurisdiction (Dkt. No. 13) is GRANTED and that Plaintiff’s complaint (Dkt. Nos.
1 and 11) be DISMISSED WITH PREJUDICE; and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Decision and Order, along
with a copy of the unpublished decision in Marks v. United States, No. C07-5679 FDB, 2008 WL
803150 (W.D. Wash. March 24, 2008) in accordance with the Second Circuit decision in Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Dated: November 14, 2016
Syracuse, New York

12

Marks v. U.S., Not Reported in F.Supp.2d (2008)
2008 WL 803150

2008 WL 803150
Only the Westlaw citation is currently available.
United States District Court, W.D. Washington,
at Tacoma.
Antolin Andrew MARKS, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. C07-5679 FDB.
|
March 24, 2008.
Attorneys and Law Firms
Antolin Andrew Marks, Tacoma, WA, pro se.

ORDER ADOPTING REPORT
AND RECOMMENDATION AND
IMPOSING SANCTIONS INCLUDING
A PRE FILING SCREENING
FRANKLIN D. BURGESS, District Judge.
*1 Before the court is the Report and Recommendation
from the Honorable United States Magistrate Judge J.
Kelley Arnold. Judge Arnold recommends that this action
be dismissed prior to serving and that the Plaintiff, Antolin
Marks, be declared a vexatious litigant and have his ability
to proceed in actions in forma pauperis removed unless he
can show he is in imminent danger of serious bodily harm
or death.
Plaintiff Marks has filed an objection in which he disputes
the Magistrate Judge's analysis of Mr. Marks' history
of litigation. The Court is unpersuaded by Plaintiff's
arguments.
Mr. Marks is a detainee at the Northwest Detention
Center in Tacoma Washington. Mr. Marks was deported
to his native land of Trinidad in 1993, after he admitted to
being a deportable alien. He reentered the United States in
January of 1994 without permission. Since being housed
at the Northwest Detention Center in 2005, Mr. Marks
has filed 24 actions. The histories of these actions are
accurately set forth in the Report and Recommendation.

Mr. Marks actions show a pattern of harassing duplicative
litigation and abuse of process. The court has reviewed
the files and agrees with the Magistrate Judge that the
actions are duplicative and vexatious. The Court, having
reviewed, the Report and Recommendation of Magistrate
Judge J. Kelley Arnold, objection to the Report and
Recommendation, and the remaining record, does hereby
find and ORDER:
(1) The Court adopts the Report and Recommendation;
(2) In all future cases, the Plaintiff shall submit a
signed affidavit, along with the proposed complaint,
verifying under penalty of perjury that none of the
issues raised in the proposed complaint have been
litigated in the past by the Plaintiff. Plaintiff may not
proceed in forma pauperis with a civil rights, Bivens,
or Federal Tort Claims Act action without a showing
he is in imminent danger of serious bodily injury or
death.
(3) An application to proceed in forma pauperis, the
affidavit required in Item 1 above, and the proposed
complaint shall be forwarded to the Chief Judge of
the district by the clerks office for review. The Chief
Judge shall determine whether the action should be
allowed to proceed. Plaintiff must provide full and
complete disclosure of all financial information in
support of any in forma pauperis application.
(4) Plaintiff is prohibited from filing any duplicative
or repetitive motion in an action. The filing of such
motions will result in monetary sanctions or dismissal
of the actions.
(5) All settlement agreements with the Plaintiff which
include a monetary payment shall require payment of
the funds into the registry of the court until such time
as Plaintiff has paid all outstanding obligations to
the court that were ordered in connection with prior
grants of in forma pauperis status.
(6) This order will apply to all action filed by Plaintiff in
this Court and those removed from any other court
to this Court.
*2 (7) Plaintiff is precluded from asserting any fact, if
a court has entered a finding contrary his assertion,
without first disclosing that he is making an assertion
contrary to a holding in another case and identifying
the holding and case with specificity.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Marks v. U.S., Not Reported in F.Supp.2d (2008)
2008 WL 803150

(8) This action is DISMISSED WITH PREJUDICE.
The Clerk is directed to send copies of this Order to
Plaintiff, counsel for Defendants, the Chief Judge, and to
the Hon. J. Kelley Arnold.

REPORT AND RECOMMENDATION TO
DENY IN FORMA PAUPERIS STATUS,
DISMISS ACTION AND DECLARE
PLAINTIFF A VEXATIOUS LITIGANT
J. KELLEY ARNOLD, United States Magistrate Judge.
This Federal Tort Claims Act case/42 U.S.C. § 1983/
Bivens action has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b) and
local Rules MJR 3 and 4. Plaintiff has filed a proposed
complaint and applied for in forma pauperis status (Dkt.#
1). The court recommends that the application for in forma
pauperis status be denied pursuant to 28 U.S.C.1915(e)(2)
(i, ii, and iii). The court further recommends that plaintiff
be declared a vexatious litigant and be precluded from
filing any action in forma pauperis unless plaintiff can
show he is in imminent danger of serious bodily injury or
death.

REPORT
Plaintiff alleges the Social Security Administration has
illegal withheld social security payments from him and
improperly charged him with an overpayment. He alleges
he is actually a United States Citizen and not an
illegal alien and that some of the checks sent to him
were allegedly taken by another person. The alleged
withholdings and overpayments cover a time span from
1992 to the present.
When a complaint is frivolous or malicious, fails to state a
claim upon which relief can be granted or, seeks monetary
relief against a defendant who is immune or contains a
complete defense to the action on its face, the court may
dismiss an in forma pauperis complaint before service of
process under 28 U.S.C. § 1915(e)(2)(B) (i, ii, and iii).
Noll v. Carlson, 809 F.2d 1446, 575 (9th Cir.1987) (citing
Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.1984)).

1. Plaintiff's allegation that he is a United States
Citizen has been litigated in other forums.
The first reason for denial of in forma pauperis status is
that plaintiff's citizenship claim has been adjudicated in
other forums. Plaintiff is incarcerated at the Northwest
Detention Center and is going through the process of
deportation. Plaintiff has been found to be a deportable
alien. Plaintiff has filed a number of Habeas Corpus
petitions over the years under the names Rudder, Hopper,
and Marks. The United States District Court for the
Western District of Washington has held:
Petitioner has used or has been known by over fifty
aliases, including Vincent Daniel Hopper, Wayne Ricky
Elison Rudder, and Antolin Andrew Marks. (Hopper
v. Roach, Case No. C05-1812-RSL, Dkt. # 37 at
L508-509-Pt. 1; L567-Pt. 1; L571-Pt. 1). Petitioner's
fingerprints match the fingerprints of alien Wayne Ricky
Elison Rudder, who is a native a citizen of Trinidad and
who was admitted to the United States on or about March
7, 1974, as an immigrant. (Hopper v. Roach, Case No.
C05-1812-RSL, Dkt. # 37 at L383-84-Pt. 1; R1034-35Pt. 1; R1021-Pt. 1).
*3 On or about September 24, 1991, the former
Immigration and Naturalization Service (“INS”) issued
an Order to Show Cause (“OSC”), placing petitioner in
deportation proceedings and charging petitioner with
being deportable from the United States for having
been twice convicted of Possession of a Controlled
Substance. (Hopper v. Roach, Case No. C05-1812RSL, Dkt. # 37 at L555-69-Pt. 1; R301-302-Pt. 1).
Petitioner appeared for his deportation hearing before an
Immigration Judge (“IJ”) and admitted the allegations
contained in the OSC and conceded deportability
as charged. Instead of deportation, petitioner filed
an application for waiver of inadmissability under
INA § 212(c) and an application for asylum and
withholding of deportation. On July 26, 1993, the IJ
denied petitioner's applications, and ordered petitioner
deported from the United States to Trinidad on the
charges contained in the OSC. (Hopper v. Roach, Case
No. C05-1812-RSL, Dkt. # 37 at R999-1021-Pt. 1).
Petitioner appealed the IJ's decision to the Board
of Immigration Appeals (“BIA”), which was denied
on November 4, 1993. (Hopper v. Roach, Case No.
C05-1812-RSL, Dkt. # 37 at R1022-31-Pt. 1). On
November 18, 1993, petitioner filed a direct appeal

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

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Marks v. U.S., Not Reported in F.Supp.2d (2008)
2008 WL 803150

of the BIA's decision in the Ninth Circuit Court of
Appeals, which was dismissed for lack of jurisdiction.
(Hopper v. Roach, Case No. C05-1812-RSL, Dkt. #
37 at R753-54-Pt. 1). Petitioner also filed a Petition
for Emergency Stay of Deportation in the United
States Court of Appeals for the District of Columbia
Circuit, which was dismissed on December 6, 1993, for
improper venue. (Hopper v. Roach, Case No. C05-1812RSL, Dkt. # 37 at R755-57-Pt. 1). On December 8,
1993, petitioner filed a Motion for Emergency Stay of
Deportation with the United States Supreme Court,
which was denied the same day. (Hopper v. Roach, Case
No. C05-1812-RSL, Dkt. # 37 at R842-872-Pt. 1; L278Pt. 1). On December 9,1993, petitioner was removed
from the United States to Trinidad. (Hopper v. Roach,
Case No. C05-1812-RSL Dkt. # 37 at L269-70-Pt. 1;
L274-Pt. 1).
On January 14, 1994, only one month after he had
been removed, petitioner illegally reentered the United
States without inspection. He remained in the United
States illegally for more than eleven years before
he was discovered at the California State PrisonSolano, where he was serving his sentence for a
conviction for Grand Theft. On August 18, 2005,
petitioner was released from the California State Prison
and transferred to ICE custody. Petitioner claimed
that he was Daniel Vincent Hopper, born in Los
Angeles, California, and that he had been deported
to Trinidad in 1993 illegally. (Hopper v. Roach, Case
No. C05-1812-RSL, Dkt. # 37 at R996-98-Pt. 1). A
fingerprint comparison performed by the Department
of Homeland Security Forensic Laboratory showed
that petitioner's fingerprints matched the fingerprints of
an alien who went by the alias Ricky Elison Rudder who
had been deported to Trinidad on December 9, 1993.
(Hopper v. Roach, Case No. C05-1812-RSL, Dkt. # 37
at R1033-34-Pt. 1).
*4 On August 18, 2005, petitioner was served with
a Warrant for Arrest of Alien, a Notice of Custody
Determination, and a Notice to Appear, placing
him in removal proceedings and charging him with
removability for entering the United States without
being admitted or paroled, and for reentering the
United States after being ordered deported without
being admitted or paroled. (Hopper v. Roach, Case
No. C05-1812-RSL, Dkt. # 37 at L530-35-Pt. 1). On
September 26, 2005, petitioner appeared before an IJ,
claiming that this was a case of mistaken identity and

that he was wrongfully removed in 1993. On October
12, 2005, petitioner filed an application for asylum
and withholding of removal. (Hopper v. Roach, Case
No. C05-1812-RSL, Dkt. # 37 at L583-576-Pt. 1). His
case was scheduled for trial on February 22, 2006, on
the issues of removability and asylum from Trinidad.
(Hopper v. Roach, Case No. C05-1812-RSL, Dkt. # 37
at R1043-1045-Pt. 1; Dkt. # 39 at 3 n. 1).
On March 23, 2006, however, petitioner was transferred
to the custody of the Tacoma Police Department for
extradition to California pursuant to a September
1, 2005, warrant for petitioner's arrest for a parole
violation. (Hopper v. Clark, Case No. C05-1812-RSL,
Dkt. # 59). On March 28, 2006, ICE filed a motion
in the Immigration Court requesting that petitioner's
pending removal proceedings be administratively closed
because petitioner was no longer in ICE custody. On
March 29, 2006, the IJ issued an Order administratively
closing petitioner's removal proceedings. (Hopper v.
Clark, Case No. C05-1812-RSL, Dkt. # 58, Ex. B). On
April 11, 2006, petitioner returned to the NWDC after
California officials decided not to extradite him, and his
removal proceedings were reopened.
After a removal hearing, the IJ denied petitioner's
application for asylum, withholding of removal, and
withholding of removal under Article III of the
Convention Against Torture, and ordered him removed
to Trinidad and Tobago on December 1, 2006. (Dkt.#
22). On February 1, 2007, the IJ denied petitioner's
request for a change in custody status. Id. Petitioner
timely appealed the IJ's removal order and bond
order to the BIA. On April 11, 2007, the BIA
dismissed petitioner's appeal of the IJ's removal order.
Accordingly, petitioner's order of removal became
administratively final on April 11, 2007. On April 20,
2007, the BIA dismissed petitioner's appeal of the IJ's
bond order and vacated the IJ's bond order as moot,
noting that neither the IJ nor the BIA had authority to
set bond conditions because a final order of removal
had been entered. Id. On May 3, 2007, petitioner filed a
Petition for Review and a motion for stay of removal in
the Ninth Circuit Court of Appeals. Rudder v. Gonzales,
No. 07-71756 (9th Cir. filed May 3, 2007). Under Ninth
Circuit General Order 6.4(c)(1), this caused a temporary
stay of removal to automatically issue. The Petition for
Review remains pending before the Ninth Circuit.

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*5 (Marks v. Clark, 06-CV-0717RSL/MAT, Dkt. # 25
Report and Recommendation) (Emphasis added, foot
notes omitted) (Report and Recommendation adopted by
the court July 23, 2007, Dkt. # 30). Further, in another
Habeas Corpus proceeding the court has held:
The sole and exclusive avenue for
review of a citizenship claim is by
direct petition for review to the
United States Court of Appeals. See
Baeta v. Sonchik, 273 F.3d 1261,
1263-64 (9th Cir.2001) (citing INA §
242(b)(5), 8 U.S.C. § 1252(b)(5)).
(Marks v. Clark, 07-CV-1679JLR/MAT Dkt. # 5 Report
and Recommendation) (Report and Recommendation
adopted, December 21, 2007 Dkt. # 9). As the citizenship
claim has been adjudicated and can only now be
challenged in the United States Court of Appeals, it
cannot be raised in this proceeding and plaintiff is
precluded from alleging he is a United States Citizen.

2. This action is a collateral
challenge to findings of deportability.
The second reason to deny in forma pauperis status is
that plaintiff's claim of citizenship is a collateral challenge
to the facts that underpin his current incarceration and
finding of deportability. When a confined person is
challenging the very fact or duration of his physical
imprisonment, and the relief he seeks will determine that
he is or was entitled to immediate release or a speedier
release from that imprisonment, his sole federal remedy
is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S.
475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In June
1994, the United States Supreme Court held that “[e]ven a
prisoner who has fully exhausted available state remedies
has no cause of action under § 1983 unless and until the
conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus.” Heck v.
Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d
383 (1994) (emphasis added). The court added:
Under our analysis the statute
of limitations poses no difficulty
while the state challenges are being
pursued, since the § 1983 claim has
not yet arisen.... [A] § 1983 cause
of action for damages attributable

to an unconstitutional conviction
or sentence does not accrue until
the conviction or sentence has been
invalidated.
Id. at 489. “[T]he determination whether a challenge is
properly brought under § 1983 must be made based upon
whether ‘the nature of the challenge to the procedures
[is] such as necessarily to imply the invalidity of the
judgment.’ Id. If the court concludes that the challenge
would necessarily imply the invalidity of the judgment
or continuing confinement, then the challenge must be
brought as a petition for a writ of habeas corpus, not
under § 1983.” Butterfield v. Bail, 120 F.3d 1023, 1024 (9th
Cir.1997) (quoting Edwards v. Balisok, 520 U.S. 641, 117
S.Ct. 1584, 137 L.Ed.2d 906 (1997)). The complaint fails to
state a cause of action. As plaintiff has not had the finding
that he is not a United States Citizen overturned.

3. The issues raised in this action have been litigated
in a prior case. Jurisdiction to consider any claim
regarding overpayment or denial of benefits lies exclusively
under 42 U.S.C. 405(g). Further, the plaintiff has
been informed the defendants are immune from suit
pursuant to statute. This action is frivolous and malicious.
*6 Plaintiff first challenged the overpayment and
withholding of Social Security benefits in the United
States District Court for Maryland (Dkt # 1, proposed
complaint, page 5 ¶ 24). The exhibits to his complaint
show his action was dismissed by the Honorable
Alexander Williams Jr, United States District Court
Judge. The action was dismissed because plaintiff had
failed to properly exhaust his administrative remedies.
The action was properly filed under the Social Securities
Act. The dismissal was pursuant to 42 U.S.C. § 405(g).
(Dkt # 1, proposed complaint Exhibit H). Plaintiff did
not file a timely motion to have his case reviewed by
an Administrative Law Judge within 60 days of the final
decision denying his claim. Instead, plaintiff has filed
Tort Claims regarding the overpayment and denial of
benefits. He was specifically informed that any action
challenging denial of payments or overpayment had to
brought pursuant to 42 U.S.C. 405(g) (Dkt # 1, Exhibit
O).
Further, in December of 2006, and January of 2007, the
Social Security Administration again reviewed plaintiff's
file and informed him of the dates of his payments,

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overpayments, and the reasoning behind the prior
decision that he owed $27, 633.67. The letter informs
plaintiff a final decision in his case was rendered by Judge
Williams and that plaintiff failed to file a request for a
hearing before an Administrative Law Judge within the
allowed 60 day time frame. (Dkt # 1, proposed complaint
Exhibit “Q”).
Finally, plaintiff filed a second tort claim. He was
informed the defendants he is seeking to sue are statutorily
immune. He was informed his claim was precluded by
section 205(h) of the Social Securities Act and that “ ‘no
action against the United States; the Commissioner of
Social Security or any other officer or employee thereof
shall be brought under section 1331 or 1346 of Title
28, United States Code, to recover on any claim arising
under’ the Social Security Act” (Dkt # 1, proposed
compliant Exhibit “R”). Despite having been informed
of the defendants immunity plaintiff has filed this action
pursuant to the Federal Tort Claims Act and as a
“Bivens” action (Dkt # 1 proposed complaint). The courts
jurisdiction would have to be pursuant to 28 U.S.C. § 1331
or 1346.
The obvious defects in this action render the action
frivolous and malicious.

4. Sanctions.
Plaintiff filed this action after already having lost the case
in the United States District Court in Maryland. Pursuant
to 28 U.S.C.1915(e)(2)(B)(i), formerly 28 U.S.C.1915(d),
the court shall dismiss a case notwithstanding payment of
the filing fee if the court determines the case is malicious.
The standard for dismissal as “malicious” has not been
well defined by case law but some guidance exists. In 1995
the District Court in Delaware considered the malicious
standard and stated:
A separate standard for maliciousness is not as well
established. Deutsch [67 F.3d 1085-87] merely states that
a district court “must 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 defendants.” Id.
Other Circuits, however, have offered more objective
instances of malicious claims. For example, a district
court may dismiss a complaint as malicious if it
threatens violence or contains disrespectful references

to the court. Crisafi v. Holland, 655 F.2d 1305
(D.C.Cir.1981); see also Phillips v. Carey, 638 F.2d 207,
208 (10th Cir.1981) (stating that courts may dismiss
pleadings with abusive or offensive language pursuant
to the court's inherent powers under FRCP 12(f)). In
addition, a district court may dismiss a complaint as
malicious if it is plainly abusive of the judicial process
or merely repeats pending or previously litigated claims.
Id.; Van Meter v. Morgan, 518 F.2d 366 (8th Cir.), cert.
denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129
(1975); Duhart v. Carlson, 469 F.2d 471 (10th Cir.1972),
cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692
(1973).
*7 Abdul-Akbar v. Department of Corrections, 910
F.Supp. 986, 999 (D.Del.1995) (emphasis added).
Other courts have found the term “malicious” means
irresponsible or harassing litigation. Daves v. Scranton, 66
F.R.D. 5 (E.D.Pa.1975). The Pennsylvania District Court
Stated:
The legal standard of ‘frivolous
or malicious' is not capable of
precise definition for it is a standard
intended for administration within
the broad discretion of the court
and to be applied with reasonable
restraint but as a practical response
to irresponsible litigation which
would otherwise be subsidized and
encouraged by the generosity of the
in forma pauperis statute.
Daves v. Scranton, 66 F.R.D. 5 (E.D.Pa.1975). This court
adopts the Pennsylvania Districts Courts' position. Mr.
Marks has filed an action that is clearly frivolous and
malicious. Were this Mr. Marks only transgression a
warning would be in order. The court, however, consider
Mr. Marks history as a litigant in this district and
recommends entry of a sanctions order declaring him to be
a vexatious litigant and barring him from further in forma
pauperis action unless he can show he is in imminent
danger of serious bodily injury or death.
This court has inherent power to regulate the extent to
which abusive litigants can access the courts. DeLong v.
Hennessey, 912 F.2d 1144, 1147 (9th Cir.1990) Cert denied,
498 U.S. 1001, 111 S.Ct. 562, 112 L.Ed.2d 569 (1990).
Generally the court should attempt to balance the litigants
right of meaningful access against the courts need to be

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free of abusive tactics. James Cello-Whitney v. Robert
Hoover, 769 F.Supp. 1155, 1158 (W.D.Wash.1991); citing
Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.1984).
The precursors for orders of this nature were first set forth
in DeLong. DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th
Cir.1990) Cert denied, 498 U.S. 1001, 111 S.Ct. 562, 112
L.Ed.2d 569 (1990). An order of this nature must:
(1) Give the litigant adequate notice to oppose the order
before entry;
(2) Present an adequate record for review by listing the
case filings which support the order;
(3) Include substantive findings as to the frivolous or
vexatious nature of the litigant's filings; and
(4) Be narrowly tailored to remedy only the plaintiff's
particular abuses.
James Cello-Whitney v. Robert Hoover, 769 F.Supp. 1155,
1158 (W.D.Wash.1991).
This is a Report and Recommendation, not an order.
Accordingly, Mr. Marks has notice of the proposed order
and a chance to oppose entry of the order by way of
objection. The record of abuses is recorded not only in
this case, but also in the filings of other cases Mr. Marks
has filed in this district in recent past. An over view of his
litigation follows.

*8 Case dismissed on the merits. An appeal was
dismissed per a pre filing order in Ninth Circuit cause
number 5-80067.

3. Marks v. Clark 06-CV-1679JLR. (Habeas)
Repetitive challenge claiming to be a United States citizen.
Dismissed for lack of jurisdiction. Appeal dismissed for
failure to pay filing fee.

4. Marks v. Clark 06-1796RSM. (Habeas)
Same as number 3 above except appeal was dismissed per
order in Ninth Circuit cause number 5-80067.

5. Marks v. Gonzales 07-1608MJP. (Habeas)
Renewed challenge claiming to be a United States Citizen

6. Hopper v. Meyers 05-5680RBL (Bivens).
Plaintiff raised claims relating to the telephone system,
medical treatment (not specified in any detail), the
contents of the law library, and access to the law library.
After extensive briefing the claims were dismissed. Appeal
pending.

7. Hopper v. Morrison 06-5058FDB (Bivens).
A. Case Histories
1. Hopper v. Roach 05-CV-1812RSL. (Habeas)
Petitioner claimed to be a United States citizen and
requested release from custody. The District Court ruled
it lacked jurisdiction to hear that claim, and a claim of
that nature must be brought in the Ninth Circuit Court
of Appeals. On appeal under Ninth Circuit cause number
5-80067 the Ninth Circuit entered a pre filing order
regarding Petitioner. The appeal was denied as lacking
merit. Petitioner is a citizen of Trinidad who illegally
reentered the United States on January 14, 1994. (Marks
v. Clark, 06-CV-0717RSL/MAT, Dkt. # 25).

2. Marks v. Clark 06-CV-0717RSL. (Habeas)

Plaintiff sought damages and injunctive relief. He alleges
the diet provided by Canteen Corporation is inadequate
both as to amount of food and quality of food. He also
alleges failure to provide a medical diet that meets his
needs. Plaintiff challenges medical treatment on a number
of fronts. He claims a brain injury; need to see specialists;,
orthopedic, neurologic and dermatology issues; and he
alleges a RICO conspiracy to force residents to buy food
at inflated prices. Case was dismissed on the merits as to
skin care and diet. Appeal denied for failure to pay. The
balance of the claims were dismissed as plaintiff is not
able to sue, federal agencies, corporations, officials in their
official capacity. This was the first case to raise the skin
care and cosmetic issue.

8. Hopper v. Clark 06-CV-5282RBL (Bivens)

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Plaintiff alleges due process violations for custody changes
and failure to pay wages due. He also raises a claim
regarding the facilities refusal to release certified copies
of Birth Certificates. All claims were addressed on the
merits. Defendants were entitled to qualified immunity or
the allegations failed to state a claim.

9. Marks v. Albin 06-CV-5675RBL (Bivens)
Plaintiff alleges false infractions and false reports were
filed by numerous employees to retaliate against him
and to place him in administrative and disciplinary
segregation. Plaintiff also claims he could not help others
with legal work because he was in segregation. Plaintiff
alleges the conditions in segregation amount to torture
because people next to him flood their cells or bang and
yell. Petitioner also raises a claim based on failure to mail
documents, including a mass mailing to congress. This is
duplicative or overlaps the issues in Hopper v. Wigens 05CV-5662FDB.

10. Marks v. United States of
America 06-CV-5696BHS (Bivens)
Plaintiff. claims, his religion mandates he eat alone. He
claims his bible was taken from him, and that the rabbi
who is not a named defendant refuses to see him. He claims
he asked to see an Imam if a Rabbi was not available,
and his request has been denied. Plaintiff also challenges
the manner in which Ramadan is celebrated, but does
not claim to be Muslim. Plaintiff claims to be a “Black
Nazarite Jew.” He brings these claims under the Religious
Freedom Act (R.F.R.A.).
*9 He also claims the rooms are kept cold to force
people to go back to their countries and that staff took
$40.20 cents in “Property” from him. It is not clear if
he is speaking about the taking of commissary items or
if funds were taken to pay his postage bill (in several
other cases he mentions the same amount of $40.20
and claims commissary items were taken from him). He
again raises the issue of false infractions or reports being
written against him. Plaintiff also alleges “mental torture”
because the staff refuses to use his new name and refer to
him by the name he used when transferred. Plaintiff does
not tie his new name to any religious belief or mandate of
his faith. Case is pending.

11. Hopper v. Wigens 05-CV-5662FDB (Bivens)
Plaintiff sought free postage for all mailings he submitted
as “legal documents.” Plaintiff wished to have any
document addressed to counsel, court embassy, other
defendant, or any legal representative for government
declared legal mail. Policy allows for five free mailings
per week. In a second amended complaint plaintiff also
challenged the practice of “scanning legal mail” prior
to copying. He challenges the denial of free copies of
all documents he considers “Legal Documents.” Case
dismissed on plaintiff's motion.

12. Marks v. Mc Burney 07-CV-5007BHS (Bivens).
Plaintiff alleges his first amendment rights were violated
and he was infracted or disciplined for writing a letter to
Neil Clark regarding a situation with another detainee.
Mr. Clark is a federal employee and is named as the
respondent in several of Mr. Mark's habeas corpus
petitions. Plaintiff claims discrimination based on color
and sexual orientation. He complains of being handcuffed
and of being placed in disciplinary segregation next to
“mentally unfit persons.” He complains about having
to shower naked when a security camera is present. He
further alleges he was denied witnesses and evidence at his
hearing. Plaintiff complains that he was also infracted for
unauthorized use of equipment when he allegedly “made
a form” on the computer. Plaintiff does not indicate what
the form was.
While plaintiffs' property was being packed for
segregation, plaintiff alleges his cell mate gave him
commissary items six soups and two punch drinks. After
his stay in segregation plaintiff alleges the commissary
items were seized and he was again infracted, this time
for unauthorized items. Plaintiff claims his being sent to
segregation on this second infraction is retaliation for his
filing Marks v. Albin. Plaintiff alleges Mc Burney has
instructed all staff to write reports concerning plaintiff. He
alleges that in two weeks eight reports were written.
Plaintiff complains about library access while in
segregation and complains he cannot help others with
their work. He alleges this is not targeted at him but at the
people who seek his help. Case is still pending.

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13. Marks v. Gephardt 07-CV-5259RJB
*10 Plaintiff attempted to file this action as a class action
challenging medical and religious diets at the detention
center. He sought a Halal diet for Muslims, and for a
full calory diet during Ramadan. He also names Sikhs in
the complaint as plaintiffs and alleges the Sikh religion
requires a vegetarian diet. The company running the
facility terminated the contract with their food provider
and began serving food prepared in house in April of 2007.
Plaintiff claims medical diets were no longer honored. He
also again challenges skin care issues as raised in prior
cases. He challenges food service personnel having access
to medical information regarding the need for medical
diets or cosmetics. The court ordered plaintiffs to file
separate actions. This case proceeds only as to Mr. Marks.
He raises the same allegation in an amended complaint
with the exception of the inclusion of Sikhs.
Plaintiff filed a motion for default in this case despite
defendants having filed an answer more than two weeks
prior to his filing his motion. While the court had the
motion for default under consideration plaintiff filed
motions to strike the answer and enter default and a
motion for judgment on the pleadings. Case is pending

14. Marks v. Garman 07-CV-5282FDB.
Plaintiff alleges he submitted tort claims and the claims
were denied by “ICE.” Plaintiff claims he was denied
documents he was entitled to under the privacy act,
and that he lost cases as a result of not having those
documents. He alleges “mental torture.” Plaintiff alleges
he sought information under the freedom of information
act and sought the file of a person named Joanne Rudder.
Plaintiff alleges he wished her to testify he is not Wayne
Rudder. Plaintiff claims the information would have led
to DNA tests on alleged siblings and proof he is not
a Rudder. Plaintiff is seeking to collaterally challenge
findings of fact in his deportation proceedings in this
action. He specifically alleges he would have won his
deportation case if he had this information.
Plaintiff also claims he has been denied access to his
own file and infractions and incident reports in his file
he wished to use in other litigation. He also alleges he
has been refused copies of contracts or tariff filings in
connection with his telephone cases and issues regarding

the telephone system. Thus, plaintiff is challenging
discovery rulings made in other cases that are not properly
before this court in this case.
He alleges “Mental Torture” because of the “threat of
infliction of pain.” Plaintiff also challenges the use of the
name Rudder and alleges this has been done to cause him
harm. Again, plaintiff is collaterally challenging findings
of fact from his deportation cases and habeas actions.
Plaintiff claims mental injury. Case is still pending.
Cases 15 to 18.
Marks v. USA 07-CV-5371RBL
Marks v. Bennett 07-CV-5372RBL
Marks v. USA 07-CV-5383RBL
Marks v. USA 07-CV-5395RBL
*11 In each of these cases IFP was denied as it appeared
Mr. Marks had money in his private property in the form
of money orders and checks. The cases were dismissed
without prejudice and do not form the basis for a
Report and Recommendation to declare Mr. Marks a
vexatious litigant with the exception of Marks v. USA 07CV-5395RBL. This action contained a number of claims
which had been litigated and lost in prior actions. Mr.
Marks titled his proposed complaint “Everything and
the Kitchen sink Bivens complaint.” The complaint is 73
pages long.
Mr. Marks raises issues relating to the reading of mail
duplicative of Hopper v. Wiggens 05-CV5662FDB. Mr.
Marks again raises his attempted mass mailing of 285
letters to congress. This issue is raised in Marks v. Albin 06CV-5675RBL and in Marks v. USA 06-CV-5696BHS. He
also complains of the reading of “correspondence he sent
to a news paper.” Plaintiff again challenges his not being
able to get documents needed for the filing of a passport
and again challenges mail procedures in general.
Plaintiff again raises the telephone call issue he litigated
and lost in Hopper v. Meyers 05-CV-5680RBL. He raises
the issue of not having certain evidence including the file
of Joanne Rudder which is a pending issue in Marks
v. Garman 07-CV-5282FDB. This is also a collateral
challenge to the propriety of the finding he is the same
Wayne Rudder who was deported and who illegally
reentered the United States on January 14, 1994.

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Plaintiff again alleges discrimination in the amount of law
library access he is given and claims the discrimination is
based on race and other factors such as sexual orientation.
He again also raises the issues of infractions and sanctions
and the conduct of infraction hearings as raised in Marks
v. Mc Burney 07-CV-5007BHS which was still pending at
the time this case was filed.
Beginning at paragraph 124 Mr. Marks again raises the
issue of the birth certificates and collaterally challenges
his deportation hearings and habeas action in a claim of
wrongful imprisonment. This is the same issue raised in
Hopper v. Clark 06-CV-5282RBL.
From page 36 paragraph 127 to page 40 plaintiff argues
he is not Wayne Rudder, a Trinidad citizen and that he
is in fact Daniel Hopper, a native of Los Angeles. Thus,
plaintiff is still challenging his citizenship collaterally.
Beginning on page 40 paragraph 146 plaintiff asks for
damages because he is separated from his estranged family
and his continued incarceration prevents reconciliation.
Plaintiff alleges he has been denied the right to counsel by
telephone practices, and that the defendants have failed to
mail his mail, even when proper postage had been placed
on the mail. (Page 41, paragraphs 150 to 160).
Plaintiff alleges denial of Notary services to him in
paragraphs 167 to 180 and claims this denial of Notary
services has resulted in a denial of access to courts.
Plaintiff alleges a failure to train or supervise on the part
of defendant Melendez, and he alleges this failure to train
or supervise has led to other defendants violating his right
to practice his religion. He again complains of the taking
of his Bible, repetitive of the allegation in Marks v. United
States of America 06-CV-5696BHS. Plaintiff also alleges
the lack of training resulted in the loss of $40.20 cents in
commissary goods. This issue was also pending in Marks
v. United States of America, 06-CV-5696BHS.
*12 Plaintiff again raises the issue of his being punished
for a letter to Neil Clarke, This issue was pending in
Marks v. Mc Burney 07-CV-5007BHS. Beginning on page
50 paragraph 195, plaintiff again raises the issue of his not
being allowed to take his meals alone. This is also an issue
in Marks v. United States of America 06-CV-5696BHS.
Plaintiff again raises mail issues including the sending

of letters to embassies, congress etc. This issue has been
repeatedly litigated. Marks v. Albin 06-CV-5675RBL,
Hopper v. Wigens 05-CV-5662FDB.
Beginning at paragraph 212, plaintiff complains that
money sent to him allegedly as thanks for doing legal work
for another detainee was not allowed into the facility.
Plaintiff returns to this issue and again raises it in the same
complaint on paragraph 239.
Beginning on page 57 paragraph 222, plaintiff again raises
the issue of skin care. This issue was pending or already
litigated in Hopper v. Morrison 06-CV-5058FDB, Marks
v. Gephardt 07-CV-5259RJB.
Beginning at page 58 paragraph 225, plaintiff accuses
defendants of lying to the court and raises a number of
items or issues many of which were litigated and lost in
other cases. He also raises the issue of his money orders
not being sent out as he directed to pay for magazine
subscriptions, and his not being allowed to have friends
send him shoes. At page 64 paragraph 249 to 252, plaintiff
complains of a disciplinary hearing and an alleged lack of
due process.
Plaintiff complains of “torture” and raises allegations
that the conditions of confinement in segregation are
unsanitary and violate the mandates of his religion. He
alleges he is being housed with mentally ill persons. This
allegation exists in Marks v. Albin 06-CV5675RBL.
On page 67 plaintiff complains that he is observed naked
and a camera is in place in the shower area. Plaintiff
also complains of being handcuffed, of searches of his
person, of dental care and the process for obtaining dental
care, and of the confidentiality of medical records. This
complaint violates rule 8(a). Further the complaint is
duplicative of other litigation that was pending or had
been dismissed. The complaint is frivolous and malicious.

19. Marks v. Clark 07-CV-5498RJB
This was a habeas corpus challenging placement in
segregation. The action was dismissed for failure to state
a claim.

20. Marks v. Giles 07-CV-5572RJB

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Marks v. U.S., Not Reported in F.Supp.2d (2008)
2008 WL 803150

Plaintiff again alleges the conditions of confinement in
segregation are unconstitutional, and that he is being
housed with mentally ill persons. This allegation exists
in Marks v. Albin 06-CV-5675RBL. He again raises
issues regarding food services, and that sack lunches are
served to some persons in segregation. This allegation
is duplicative and overlapping of the allegations in
Hopper v. Morrison 06-CV-5058FDB. He again challenges
infractions that resulted in his placement in segregation,
including an infraction for swearing at the grievance
coordinator. This is duplicative of other cases.

23. Marks v. Bennett 07-CV-5674RBL.
Plaintiff makes conclusory allegations regarding his being
denied access to legal documents in storage. He claims to
have lost several cases because he had no access to the
documents in question. Plaintiff is collaterally challenging
prior dismissals and his INS deportation case in this
context. Plaintiff also raises the $40 Dollar money order
in this case and the case is thus duplicative of Marks v. De
Guia 07-CV5667BHS. This action is proceeding as to the
only remaining defendant. All other defendants entered
into a stipulated settlement with Mr. Marks.

21. Marks v. Singh 07-CV-5666RJB.
*13 This case was removed from Pierce County Superior
court by the defendants. The case is duplicative of
prior and currently pending litigation and plaintiff
challenges the amount of food he is given. See, Hopper
v. Morrison 06-CV-5058FDB, and Marks v. Gephardt 07CV-5259RJB.
He also again challenges not being allowed to mail 285
letters to congress at no cost to himself at one time(five
a week are allowed by policy). This issue is duplicative of
issues in Marks v. Albin 06-CV-5675RBL.
Plaintiff challenges the opening, scanning, and copying
of mail. This is duplicative of Hopper v. Wigens 05CV-5662FDB, as well as prior and pending litigation.
Thus, not only is plaintiff repeatedly filing the same
claims, he is filing the claims in multiple jurisdictions
forcing the defendants to appear in a number of forums
on the same claims.

22. Marks v. De Guia 07-CV-5667BHS.
This action raises the birth certificate issue that he
presented in Hopper v. Clark 06-CV-5282RBL. He
challenges his being placed in the Pierce County Jail on
a detainer out of California. He also alleges a “breach of
contract” for failure to pay him a dollar a day for work.
This issue was litigated and decided against him in Hopper
v. Clark 06-CV-5282RBL. Plaintiff also complains of the
taking of a $40 dollar money order and the use of it by
the corporation running the facility. This appears to be a
new claim.

24. Marks v. USA 07-CV-5679FDB.
This action challenges Social Security payments and
a decision made over a decade ago. The action was
first filed as Marks v. USA 07-CV-5383RBL. In forma
pauperis status was denied as plaintiff appeared to have
funds available to him. The case was dismissed without
prejudice. This case appears subject to screening dismissal
under 28 U.S.C. § 1915(e)(2)(B) (i, ii, and iii).

B. Litigation Practices and Improper Filings.
1. Hopper v. Roach 05-CV-1812RSL.
Mr. Marks abused discovery by filing two motions asking
for the same material ten days apart. He filed the second
motion without waiting for the court's ruling on the first
(Dkt # 42 and 45). Two motions ask for the same material
and were filed ten days apart without waiting for a ruling.
He also sought release from confinement pending a ruling
on the case (Dkt # 44). In addition Plaintiff sought
injunctive relief in this action and asked the court to order
non-parties to the action to release a birth certificate to
him. Plaintiff had obtained the birth certificate by mail
(Dkt.# 56).
*14 When a motion to appoint counsel was denied, (Dkt
# 28), Mr. Marks simply renewed his motion (Dkt # 61).
Finally, he attempted to file several petitions under the
same cause number (Dkt # 22, 27, 63, 69, 84).

2. Marks v. Clark 06-CV-0717RSL.
The original petition in this case was accepted for filing
June 6, 2006 (Dkt # 6). Mr. Marks filed a second petition

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eight days later (Dkt # 10). Two days later an amended
petition was filed (Dkt # 11). In other respects the case
was not remarkable.

3. Marks v. Clark 06-CV-1679JLR.
Petitioner attempted to litigate the denial of counsel in
other cases in this habeas action.

4. Marks v. Clark 07-CV-1796RSM.
This case proceeded in a normal fashion.

5. Marks v. Gonzales 07-CV-1608MJP.
At the time in forma pauperis was granted a Report and
Recommendation to dismiss was entered.

6. Hopper v. Meyers 05-CV-5680RBL.
Plaintiff moved for class certification prior to filing a
complete application to proceed in form pauperis. Plaintiff
then moved for default despite the fact that the court
had ordered service only 20 days earlier (Dkt.# 22). In
the discovery phase plaintiff attempted to depose fellow
detainees who are not parties to this action.
When some of the defendants moved to dismiss
plaintiff attempted to have the motions stayed. Plaintiff
aggressively pursued discovery on a wide range of topics
as is evidenced by his first motion to compel (Dkt.# 83).
Plaintiff also filed a number of motions without noting
them which resulted in some motions not being placed on
the courts calendar. Plaintiff sought to have the court rule
on issues of fact piece meal. He filed a motion for partial
summary judgment that does not address the case on the
merits in any fashion. The motion asks the court to find
grievances submitted by plaintiff to the defendants were
not always returned to him (Dkt # 62). In July of 2007,
plaintiff began filing documents that are not attached to
any motion and are not properly part of the file (Dkt
# 90). When defendants moved for summary judgment
plaintiff again sought to stay the courts consideration of
the motion (Dkt # 97).
Plaintiff filed a second motion for class certification
despite the courts already having ruled on that issue (Dkt

# 101). Plaintiff continued to file pleadings that were not
in support of motions (Dkt # 108). On September 27,
2006, the court issued a warning to plaintiff regarding his
filings (Dkt # 114). The court stated:
At the onset of this action several detainees filed
motions asking for class certification and asking they
be added as plaintiffs in this action. (Dkt.# 4, 6, 7,
9). The court entered a Report and Recommendation
to deny class certification. (Dkt # 18). On April 12th,
2006 the District Court Judge adopted that Report and
Recommendation and denied the motion to certify a
class. (Dkt. # 54).
Now, plaintiff has filed a 36 page motion signed
by six detainees not including Mr. Hopper AKA
Marks. (101). Plaintiff specifically mentions rule 23 and
addresses the prerequisites for filing a class action. (Dkt.
# 101, page 3). The plaintiff has also filed a multi
hundred page declaration in support of the motion.
(Dkt.# 102). These filings are not the first over length
filings from the plaintiff in this action.
*15 This motion is a repetitive motion for
class certification. Plaintiff's motion and over length
declaration will not be considered on the merits. The court
has already declined to certify a class in this action.
Further, no over length filings will be considered unless
the party has sought and obtained leave of court to file
an over length pleading.
The filings in this action are becoming abusive.
When class certification was denied at the beginning
of this action plaintiff could have moved for
reconsideration. Plaintiff did not do so and in fact filed
a pleading indicating he concurred with the Report and
Recommendation not to certify a class. (Dkt # 21).
A subsequent motion, this late in the case, is not well
taken. Included in that motion is a request for counsel.
Plaintiff has already moved for appointment of counsel
in this action and his motion was denied. (Dkt # 36, and
43).
Plaintiff has also filed a pleading which he titled a
“general declaration” in which plaintiff indicates what
he may testify to in the future. (Dkt.# 108). This is not
a proper filing or pleading and it will not be considered
by the court or cited to by any party. The pleading is
not evidence and is at best a declaration as to what may
happen in the future.

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Marks v. U.S., Not Reported in F.Supp.2d (2008)
2008 WL 803150

Plaintiff is hereby warned that this court will not
tolerate filings which needlessly increase the cost of
litigation or are filed for an improper purpose. Further,
the court will not allow over length filings that are
violations of the court's local rules. Future pleadings
that are improper may result in sanctions including
monetary sanctions, dismissal of actions, and limitation
on plaintiff's ability to proceed in forma pauperis in this
or future actions. The relief sought in documents 101
and 102 is DENIED.
(Dkt.# 114). Plaintiff moved for reconsideration (Dkt #
119).
In disregard of the court's warning plaintiff filed a number
of over length documents in response to a subsequent
motion for summary judgment (Dkt # 151, 152, 154, and
155). Plaintiff also filed a number of pleadings that are not
allowed under the Federal Rules of Civil Procedure. These
filings include multiple responses to pending motions (151,
152, 154, 155, 158, and 159).
It was at approximately this point in the proceedings
when plaintiff filed a document under seal in other
cases that contained threats of harm to persons and
security information regarding the facility. The plaintiff
then filed what he termed an “apology” in another
case reiterating the same disturbing and potentially
dangerous information. That document remains sealed.
An order sealing all of plaintiffs filings pending review and
unsealing is now in place to prevent plaintiff from further
misconduct of this nature.
The court addressed plaintiff's over length filings and
issued an order to show cause why sanctions should not
be imposed (Dkt # 184). The district court dismissed
the action on summary judgment prior to imposition of
sanctions (Dkt # 188).

7. Hopper v. Morrison 06-CV-5058FDB.
*16 The action was filed and served. Defendants filed
multiple motions to dismiss. Plaintiff then filed a motion
asking for additional library time. Access to courts is not
an issue in this action. Plaintiff also filed a motion to stay
consideration of the motions to dismiss. The motions to
dismiss were re-noted and plaintiff was given over two
additional months to file a response (Dkt # 29). During

the time plaintiff was granted to file a response plaintiff
again engaged in aggressive discovery. Defendants moved
to stay discovery until the motions to dismiss had
been addressed (Dkt # 30). Defendants motion and the
attached exhibits outline the abusive nature of plaintiff's
discovery requests. In a suit involving food and food
services plaintiff sought stock holder information and
information that was irrelevant, oppressive, and abusive.
Plaintiff again filed a declaration not attached to any
specific motion (Dkt # 34).
Rather than simply responding to the motions to dismiss,
plaintiff filed a motion to strike defendant's motions to
dismiss (Dkt # 35). The plaintiff referred to information
in defendant's motions as “scandalous, impertinent, and
oppressive” (Dkt # 35). Review of his pleading shows the
sole basis for plaintiff's motion was the fact that he and
other detainees were referred to as “prisoners.” The court
granted this motion to the extent it ordered defendants not
to refer to plaintiff as a “prisoner”. Plaintiff also filed a
motion to compel discovery despite the fact that motion
to stay discovery was pending (Dkt # 38), and a motion
to amend the complaint rather than responding to the
pending motions to dismiss (Dkt.# 45).
In July of 2006, Plaintiff again began filing documents not
associated with any particular motion (Dkt # 49 and 51).
The case was dismissed at the motion to dismiss stage.

8. Hopper v. Clark 06-CV-5282RBL.
The action was commenced and some of the defendants
moved to dismiss. Plaintiff filed a response and an
“errata” (Dkt # 18 and 19). The motion to dismiss was
re-noted and plaintiff then filed a second response to the
motion (Dkt # 23). The motion to dismiss was granted
and plaintiff then moved to compel discovery and for
sanctions regarding the remaining defendants. (Dkt # 29).
Plaintiff's motion was granted in part and denied in part.
The remaining defendants filed a motion to dismiss (Dkt
# 30). Plaintiff filed a response (Dkt # 45). Defendant's
filed a reply (Dkt # 48). Plaintiff then filed a rebuttal
pleading that is not allowed in the rules of this court (Dkt.
# 52). The court granted remaining defendants motion to
dismiss.

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Marks v. U.S., Not Reported in F.Supp.2d (2008)
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8. Marks v. Albin 06-CV-5675RBL.
The original complaint in this action violated
Fed.R.Civ.P. 8, and plaintiff was ordered to file an
amended amend (Dkt.# 8). The amended complaint
suffered from the same defects as the original. A second
order to amend was entered (Dkt.# 10). Plaintiff moved
to be allowed limited discovery prior to filing an amended
complaint and moved for an extension of time to file an
amended complaint. Both motions were denied.
*17 A Report and Recommendation to dismiss was
entered. Two days later plaintiff filed a third amended
complaint. The District Court Judge allowed the untimely
complaint and re-referred the case. Plaintiff began
filing documents jeopardizing the safety of Northwest
Detention Facility employees in other cases. He later
filed an apology ironically renewing some of the same
threats (Dkt # 23). His actions resulted in sanctions. That
document remains under seal and all of plaintiff's filings
are now filed under seal and reviewed prior to unsealing
Defendants did not file a timely answer and plaintiff
moved for default. Prior to the motion being heard,
defendants filed an answer and cured the default. A
Report and Recommendation to deny default was entered
(Dkt.# 30).
Plaintiff then moved to strike the answer and enter default
(Dkt # 33). He also filed objections to the Report and
Recommendation (Dkt # 34), and a motion for judgment
on the pleadings regarding defendants counter claim
(Dkt.# 35). This case later settled as part of a stipulated
settlement.

10. Marks v. USA 06-CV-5696BHS.
The court ordered this case served in May of 2006. In July
the federal defendants filed a motion to dismiss (Dkt.#
24). Defendants also moved to stay discovery in this action
(Dkt # 29). Discovery was stayed, and defendants motion
was granted (Dkt # 36 and 43). Plaintiff then filed a
motion for default as to the remaining defendants and
defendants then filed an answer curing the default (Dkt #
44 and 45).
Plaintiff then filed an untimely motion asking for a
rehearing on the order to dismiss federal defendants

(Dkt.# 49). The court denied his motion (Dkt # 51). The
court sanctioned plaintiff for filing an over length pleading
(Dkt # 50). That sanction was overturned on appeal to
the district court judge (Dkt # 62). Plaintiff then moved
to strike defendants answer and again moved for default
(Dkt # 53).
Plaintiff then filed a “renewed motion” for rehearing on
the issue of the federal defendants being dismissed from
this action (Dkt # 58). Several motions are currently
pending.

11. Hopper v. Wigens 05-CV-5662FDB.
Plaintiff began filing motions for preliminary injunction
and multiple amended complaints prior to a grant of in
forma pauperis in this action (Dkt # 3, 4, and 10). He also
filed multiple amended complaints without leave of court
(Dkt # 14 and 15).
Plaintiff then moved to dismiss the action claiming the
defendants conduct had improved (Dkt.# 21). When a
Report and Recommendation was entered to dismiss,
however, plaintiff opposed the motion claiming a “slight”
change in circumstances (Dkt # 30 and 31). The case was
dismissed and plaintiff moved to re-open the case. His
motion was denied.

12. Marks v. McBurney 07-CV-5007BHS.
This action has been the subject of substantial delay due
to service issues unrelated to plaintiff's conduct. Plaintiff
filed a document not connected to any motion on October
17, 2007 (Dkt # 20). Defendants did not file a timely
answer and plaintiff moved for default in November of
2007. Defendants then answered and cured the default
(Dkt # 21 and 22). A Report and Recommendation to
deny default was entered (Dkt # 24).
*18 Without waiting for a ruling on the Report and
Recommendation plaintiff moved to strike the answer
and enter default, (Dkt # 27), and for judgment on the
pleadings with regard to defendants counterclaim (Dkt #
29). The parties later entered into a stipulated settlement
with regard to this and several other cases.

13. Marks v. Gephardt 07-CV-5259RJB.

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Marks v. U.S., Not Reported in F.Supp.2d (2008)
2008 WL 803150

Plaintiff filed a frivolous motion for default (Dkt.# 23).
The motion is frivolous as defendants answered the
complaint two weeks prior to the motion being made.
Plaintiff motion includes defendants who had answered.
Plaintiff moves to strike the answers and have the court
enter default (Dkt.# 29). Plaintiff again seeks wide ranging
and burdensome discovery including production and
free copies of e-mails, educational background of the
defendants, policies, and complete files regarding him
(Dkt.# 30). In a relatively short time span the parties have
filed a large number of motions.

14. Marks v. Garman 07-CV-5282FDB.
This case is relatively new and the only improper filing is
plaintiff filing notices unrelated to the case (Dkt # 12).
15 to 18.
Marks v. USA 07-CV-5371RBL
Marks v. Bennett 07-CV-5372RBL
Marks v. USA 07-CV-5383RBL

In response to a motion to dismiss this action as repetitive
Mr. Marks states:
The defendants hit the nail on
the head when they state that
the plaintiff is filing against nearly
identical defendants raising nearly
identical causes of action and claims.
The key there is that nearly identical
is not identical. (Marks v. De Guia,
07-CV-5667BHS Dkt. # 12, page 4).
Plaintiff goes on to indicate he believes he has a right
to file an action against the corporation running the
facility where he is housed in other courts in “Pierce
County, Miami County, Clark County, Nevada, Boston,
Massachuset, New York New York, Washington D.C.,
Godlsboro, North Carolina, and anywhere Geo does
business.” Plaintiff indicates the only restraint on him is
his belief that his rights have been violated and that he has
not gained a fair hearing (Marks v. De Guia, 07-5667BHS
Dkt. # 12, page 5). The court views plaintiff's argument
as a clear indication plaintiff will not accept any ruling on
the merits where he does not prevail.

Marks v. USA 07-CV-5395RBL
23. Marks v. Bennett 07-CV-5674RBL.
IFP was denied in these cases.

This is a new action and the court is waiting for service
copies of an amended complaint.

19. Marks v. Clark 07-CV-5498RJB.
This case was opened and a Report and
Recommendation to dismiss was entered. That Report
and Recommendation was adopted.

24. Marks v. USA 07-CV-5679FDB.
*19 This is the repetitive social security case currently
before this court.

20. Marks v. Giles 07-CV-5572RJB.
This case is just over four months old and no remaining
defendant has accepted service.

21. Marks v. Singh 07-CV-5666RJB.
There has been no activity in this case since Mr. Marks
settled a number of cases by stipulated order. There are
three remaining defendants.

22. Marks v. De Guia 07-CV-5667BHS.

RECOMMENDATION
The court recommends plaintiff's application to proceed
in forma pauperis be denied as this action is frivolous and
malicious, fails to state a claim upon which relief can
be granted, and seeks monetary relief against defendants
who are immune because the action contains a complete
defense on its face. This action is subject to dismissal under
28 U.S.C.1915(e)(2)(B) (i, ii, and iii). It cannot be cured by
amendment
Given this case history and the specific abuses noted
above which include the filing of duplicative vexatious

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2008 WL 803150

actions, discovery abuses, and the filing of improper
documents which endanger the security of the Northwest
Detention Center, the court recommends that Mr. Marks
be declared a vexatious litigant and that he be denied in
forma pauperis status. Exercise of the court's discretion,
applied with reasonable restraint as a practical approach
to irresponsible litigation, now requires that Mr. Marks
be prohibited from filing any further actions in forma
pauperis unless he certifies under penalty of perjury that
he is in imminent danger of death or serious bodily injury.
The court has tried lesser sanctions and has attempted
to leave the privilege of filing in forma pauperis open for
this litigant. Mr. Mark's abuse of the legal system has
continued unabated.
The court anticipates Mr. Marks will begin to file his
actions in state courts. Any action filed in state court and
removed to federal court should be subject to this order.
Unless the plaintiff certified under penalty of perjury
that he was in imminent danger of death or serious
bodily injury, plaintiff should not be permitted to proceed
without payment of the filing fee.
End of Document

In spite of the court's efforts, sanctions heretofore imposed
have been ineffective. The filing of the same causes of
actions in Federal Court and Superior Court is additional
and strong evidence of the impropriety of plaintiff's
motives.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall
have ten (10) days from service of this Report to file
written objections. See also Fed.R.Civ.P. 6. Failure to file
objections will result in a waiver of those objections for
purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985). Accommodating the time limit
imposed by Rule 72(b), the clerk is directed to set the
matter for consideration on March 21, 2008. as noted in
the caption.
DATED this 22nd day of February 2008.

All Citations
Not Reported in F.Supp.2d, 2008 WL 803150
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