MCKENNA v. MIGNELLA et al

Filing 12

MEMORANDUM/OPINION THAT THE COMPLAINT WILL BE DISMISSED WITHOUT PREJUDICE. PLAINTIFF MAY FILE AN AMENDED COMPLAINT WITHIN SIXTY DAYS. PLAINTIFF WILL BE GRANTED LEAVE TO PROCEED IN FORMA PAUPERIS, SO HE DOES NOT HAVE TO MAKE ANY ATTEMPT TO SERVE THE CURRENT OR AMENDED COMPLAINT HIMSELF, ETC. PLAINTIFF'S CURRENT APPLICATIONS FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT ARE HEREBY DENIED. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 7/7/16. 7/8/16 ENTERED AND COPIES MAILED TO PRO SES'.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MATTHEW D. MCKENNA,
Plaintiff,
v.

CIVIL ACTION
NO. 16-1017

ANTHONY J. MIGNELLA, et al.
Defendants.
MEMORANDUM
SCHMEHL, J. /s/ JLS

July 7, 2016

On March 3, 2016, Plaintiff Matthew D. McKenna filed a complaint against more
than 170 defendants, alleging a wide-ranging conspiracy, various constitutional and other
violations, corruption, and one or more “secret trials,” largely revolving around a thirtyyear-old conviction on drug charges. At the time he filed the complaint, he paid the filing
fee. Two of the many defendants sent letters to the Court indicating that they could not
respond properly because they had received summonses but not copies of the complaint
itself. On May 9, 2016 (docketed May 10), the Court issued a notice that the case would
be dismissed as against any defendants not served by June 1, 2016, with proof of service
to be filed within five days of service.
On May 19, 2016, Plaintiff filed a motion to extend the time for service and,
despite having initially paid the filing fee, an application to proceed in forma pauperis.
Shortly thereafter, he also filed an affidavit of service on some defendants; however, it
appeared from this filing that Plaintiff attempted service by certified mail without any
signature requirement. The Court issued an order denying the motion to proceed in forma
pauperis without prejudice, noting that Plaintiff’s application contained insufficient and

unclear information about his finances. The order gave Plaintiff the opportunity to file an
amended application with clearer financial information and noted that if the application
were then granted, the Court would review and potentially dismiss the complaint under
28 U.S.C. § 1915(e)(2)(B). Finally, the order held off the deadline for service until
resolution of the in forma pauperis issue and reminded Plaintiff that service by mail is
only effective with the signature of the defendant or an authorized agent, and then only
for out-of-state defendants, and that any service requires that defendants receive copies of
the complaint.
Plaintiff then filed a narrative statement with some further explanation of his
financial situation; it also discussed service of the complaint. Attachments to that
statement continued to indicate that Plaintiff has sent mailings to numerous defendants
without requiring signatures from the recipients (there is also no certainty as to what was
included in those mailings, and there may be other service deficiencies). Plaintiff
followed that statement with a request for entry of default regarding twenty-six
defendants upon whom he claims proper service by certified mail (the letter also asks for
the Court to order various records and files). Finally, Plaintiff filed a motion for default
judgment against “defendants”; whether he refers to all defendants or only those specified
in his previous request for entry of default is unclear.
In sum, this case now involves a long, difficult-to-follow, hard-to-credit
complaint against an extremely large number of defendants; an in forma pauperis
application despite payment of the original filing fee; and late, apparently ineffective
service nevertheless coupled with a request and motion for default against some or all
defendants.

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Based on the additional information in Plaintiff’s June 27, 2016, statement, the
Court must conclude that even though Plaintiff paid the initial filing fee, he has little or
no financial means and is entitled to proceed in forma pauperis from this point forward.
His application to do so will be granted. This decision has repercussions for the other
open issues in this case.
The lack of proper service and the in forma pauperis application obviously
interact in a significant way. When the Court grants leave to proceed in forma pauperis, it
must also order that the summonses and complaints be served by the United States
Marshals Service under 28 U.S.C. § 1915(d) and Federal Rule of Civil Procedure 4(c)(3).
Plaintiff’s failure to properly serve would then be rectified, but of course entry of default
or default judgment against defendants at this time, before they have been properly
served by the Marhsals, is inappropriate. No defendant will have a duty to respond to the
complaint until properly served by the Marhsals, and under time limits based on that
service (including any waivers of service if the Marshals employ that method). Therefore,
Plaintiff’s requests for default will be denied.
However, as noted in the Court’s prior order, a grant of leave to proceed in forma
pauperis also entails a review of the complaint under 28 U.S.C. § 1915(e)(2)(B). If the
Court finds that the complaint is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a defendant protected by
immunity, it must dismiss the complaint. Considering the great time and expense the
Marshals Service would have to go through to serve all defendants in this case, the Court
believes that screening the complaint is appropriate. The cost of the actual filing fee
($400) pales in comparison to the cost of having the Marshals serve the complaint on

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behalf of Plaintiff. The complaint itself is more than sixty pages long, and there are 174
accompanying exhibits, many of them multiple pages. 1 Service upon more than 170
defendants will be expensive and burdensome. In addition, although the complaint was
filed and the fee paid, this case would be very unlikely to proceed any further if in forma
pauperis status were denied. Plaintiff has failed to conduct proper service on his own and
has not apparently reacted to the Court’s prior warning that his method of service (mail
with no signature upon receipt) is unacceptable. There is every reason to screen the
merits of the complaint in this case as in any normal in forma pauperis case.
Further, in addition to the 28 U.S.C. 1915(e)(2)(B) review, “[a] federal court may
sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1) when the allegations within the complaint ‘are so
attenuated and unsubstantial as to be absolutely devoid of merit, . . . wholly insubstantial,
. . . obviously frivolous, . . . plainly unsubstantial, . . . or no longer open to discussion.’”
DeGrazia v. F.B.I., 316 F. App'x 172, 173 (3d Cir. 2009) (quoting Hagans v. Lavine, 415
U.S. 528, 536-37 (1974)). The DeGrazia court further described the plaintiff’s claims as
warranting dismissal because “they rel[ied] on fantastic scenarios lacking any arguable
factual basis.” Id. Under Federal Rule of Civil Procedure 8, the complaint is also required
to contain “a short and plain statement of the claim showing that the pleader is entitled to
relief,” and the allegations must be “simple, concise, and direct.” See also Scibelli v.
Lebanon Cnty., 219 F. App'x 221, 222 (3d Cir. 2007).
Review of this complaint under either § 1915(e)(2)(B) or general substantiality
reasoning leads to serious doubt that this case should proceed. The complaint is a long,

1

The exhibits were submitted in two large binders and have not even been entered on the electronic docket.
They also include a DVD.

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rambling narrative filled with outrageous and highly improbable stories of a corrupt
conspiracy involving huge numbers of people and extremely unlikely scenarios, such as
the use of inmates as paid stand-ins for Plaintiff and his associates at court hearings so
that those hearings could be kept secret, not from the public, but rather from Plaintiff and
his associates. Plaintiff has also failed to articulate what exactly his claims are, though he
lists off several constitutional provisions. In part, he seems to be seeking documents
rather than pursuing claims appropriate to litigation. His demands for monetary
compensation demonstrate that he must feel he has some litigable claims, but the amounts
he demands further indicate the absurdity of the complaint: he moves from the relatively
modest request for payment for his own time doing legal work, to several tens of millions
of dollars from each of various individual defendants, to the rather specific figure of
$23.7 billion from the remaining defendants that were employed by the state of New
Jersey. It is also worth noting that many of the defendants are likely to be protected by
prosecutorial, judicial, and other immunities, although at this point it is difficult to
determine which defendants would be immune from what claims.
Much of the hyperbole and lack of clarity can of course be attributed to Plaintiff’s
pro se standing and at least partially forgiven. But perhaps the most straightforward
problem with the complaint cannot be easily overlooked. A thorough reading of the
complaint reveals that nothing in Plaintiff’s story—none of the alleged wrongful conduct
and not even any of Plaintiff’s long investigation into the matter—occurred later than
May of 2008. Even assuming that the limited pieces of the story Plaintiff says occurred
most recently (mailing some evidence to the U.S. Attorney in 2007, communicating with
a county prosecutor in 2008) had any bearing on the accrual of Plaintiff’s claims, an

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assumption that is almost certainly unwarranted, it is hard to conceive of any claim
Plaintiff could bring that would not be time-barred in 2016. See Barren v. Pennsylvania
State Police, 607 F. App'x 132, 134 (3d Cir. 2015) (“Although the running of a statute of
limitations is an affirmative defense, see Fed.R.Civ.P. 8(c), a court may dismiss a claim
sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii) if it is obvious from the face of the
complaint that the claim is barred by the applicable statute of limitations and no
development of the record is necessary.”). Because of timing alone, dismissal of the
complaint is warranted.
However, it is apparent from some of the attachments to the complaint and other
publicly available news sources that key players in Plaintiff’s allegations, particularly
prosecutor Nicholas Bissel and some of his associates, were indeed later proven to be
involved in rather extensive corruption. The Court is, therefore, sensitive to the
possibility that Plaintiff’s claims, while extreme, may not be wholly fantastical. In short,
his claims are improbable but not impossible. For that reason, and because of Plaintiff’s
pro se status, Plaintiff is due an opportunity to amend his complaint to present clear,
focused, timely claims.
For all these reasons, the complaint will be dismissed without prejudice. Plaintiff
may file an amended complaint within sixty days. Plaintiff will be granted leave to
proceed in forma pauperis, so he does not have to make any attempt to serve the current
or amended complaint himself. If and when he files an amended complaint, the Court will
then review it, and if it clearly states timely claims upon which relief could be granted
against particular defendants, the Court will order the Marshals to serve it on those
defendants only. At that time, any defendants served will have an obligation to respond.

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Plaintiff’s current applications for entry of default and default judgment are hereby
denied.

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