FRAZIER v. CITY OF PHILADELPHIA
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 8/29/17. 8/30/17 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF.(rf, ) (Main Document 4 replaced on 8/30/2017) (rf, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA
STATE OF PENN.
QUINONES ALEJANDRO, J.
AUGUST 29, 2017
Plaintiff Mark S. Frazier ("Plaintiff') filed a motion to proceed in forma pauperis and a
complaint against the City of Philadelphia and the State of Pennsylvania based on his failure to
receive a Court order issued in one of his federal cases. For the following reasons, the Court will
dismiss the complaint.
In November of 2016, Plaintiff initiated a lawsuit docketed as Frazier v. City of Phila.,
E.D. Pa. Civ. A. No. 16-5856. He listed his address as 400 N. 19th Street in Philadelphia on both
the complaint and civil cover sheet. Plaintiffs motion for leave to proceed in forma pauperis
was denied by the Honorable Gerald McHugh, without prejudice, to Plaintiff submitting an
amended motion to proceed in forma pauperis with more complete financial information.
Plaintiff failed to file an amended in forma pauperis application.
Several months later, Plaintiff filed a "motion to merge evidence from all cases into this
case" and a "motion to reopen case." The Court denied those motions because "there [was] no
action pending ... due to Plaintiffs failure to pay the appropriate filing fee or receive permission
to proceed without paying the fee." Frazier v. City of Phila., E.D. Pa. Civ. A. No. 16-5856 (Apr.
3, 2017 order, ECF No. 8). The docket reflects that the Court mailed a copy of the order to
Plaintiff at his 400 N. 19th Street address, but that the mail was returned, as undeliverable.
In the instant civil action, Plaintiff laments the fact that he did not receive notice of the
Court's April 3, 2017 Order. He notes that he has been receiving mail at his current address, 315
S. Broad St. Philadelphia Pa, "for the past few years." (Compl. at 3.) Although Plaintiff never
filed a notice of change of address in Civil Action Number 16-5856, as he was required to do
under the local rules, E.D. Pa. L.R. 5.1 (b), Plaintiff appears to be alleging that the Court should
have known of his alternative address because he was using that address for purposes of service
in civil cases filed in 2015, which were assigned to Judge Baylson, see Frazier v. City of Phila.,
E.D. Pa. Civ. A. Nos. 15-6878, 15-936 & 15-935. Accordingly, Plaintiff concludes that his
failure to receive the Court's order in Civil Action Number 16-5856 must have been a result of
"intentional mail fraud." (Compl. at 3.). He alleges that he was not able to file a timely appeal
because he did not receive the Court's order.
Based on those facts, Plaintiff initiated the instant lawsuit against the City of Philadelphia
and the Commonwealth of Pennsylvania.
He seeks an injunction "to prevent continued
violations by [the defendants] or third party agents or interests" and a million dollars in damages.
(Compl. at 4.).
STANDARD OF REVIEW
Plaintiffs motion to proceed in forma pauper is is granted because it appears that he is
incapable of paying the filing fees to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(i) and (ii) require the Court to dismiss the complaint if it is frivolous or fails to
state a claim. A complaint is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). It is legally baseless if "based on an indisputably
meritless legal theory," Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995), and
factually baseless "when the facts alleged rise to the level of the irrational or the wholly
incredible." Denton v. Hernandez, 504 U.S. 25, 33 (1992).
To survive dismissal for failure to state a claim, the complaint must contain "sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). "[M]ere conclusory statements do not
suffice." Id. As Plaintiff is proceeding pro se, the Court construes his allegations liberally.
Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
The statutory basis for Plaintiffs claims is unclear. It appears that he may be attempting
to raise a claim of denial to his right to access the courts pursuant to 42 U.S.C. § 1983. 1
Initially, the complaint borders on being factually baseless because Plaintiff appears to be solely
surmising on the fact that he did not receive notice of a Court order that the Commonwealth of
Pennsylvania or the City of Philadelphia are somehow tampering with his mail. In any event,
even if Plaintiffs allegations were not implausible, his claims against the Commonwealth of
Pennsylvania are legally without merit because the Commonwealth is not subject to suit under§
1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989) (explaining that§ 1983
"does not provide a federal forum for litigants who seek a remedy against a State for alleged
deprivations of civil liberties").
Plaintiff also has not stated a claim against the City of
Philadelphia because he has not alleged a municipal policy or custom that led to the violation of
To the extent Plaintiff is attempting to raise claims based on alleged violations of criminal laws,
his claims fail. See Cent. Bank of Dover, NA. v. First Interstate Bank of Denver, NA., 511 U.S.
164, 190 (1994) ("We have been quite reluctant to infer a private right of action from a criminal
his rights. Monell v. Dep't of Soc. Servs. of NY, 436 U.S. 658, 691 (1978) (municipal liability
under § 1983 must be predicated upon a municipal policy or custom).
Furthermore, if Plaintiff did not initially receive notice of the Court's Order he sought to
appeal, he could have filed a motion to reopen, within the time period to file an appeal pursuant
to Federal Rule of Appellate Procedure 4(a)(6), after he learned of the Court's order. In light of
that remedy, which was available to Plaintiff, it is difficult to see how he could prevail on a claim
that he was denied access to the courts. Also fatal to Plaintiffs claim is the fact that there is no
merit to any appeal from the Court's April 3, 2017 Order in Civil Action Number 16-5856,
because the docket reflects that Plaintiff had not, in fact, returned an amended in forma pauperis
application. See generally Christopher v. Harbury, 536 U.S. 403, 415 (2002) (denial of access
claim requires showing that underlying claim was arguable or non-frivolous). Plaintiff was
required to either pay the applicable fees or file a sufficient motion to proceed in forma pauperis
before the Court could proceed with his claims, and he did not.
For the foregoing reasons, Plaintiff's complaint is dismissed. Plaintiff does not have
leave to amend because any amendment would be futile. Plaintiffs motion to relate case to 156878 is denied. An appropriate order follows, which shall be docketed separately.
NITZA I. QUINONES ALEJANDRO, USDC, J.
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