Walsh v. Walace et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 11/9/16. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN WALSH, III

:
CIVIL ACTION NO. 3:16-1722

Plaintiff
v.
ROBERT WALACE, ESQ.,
et al.,

:
:

(Mannion, D.J.)
(Carlson, M.J.)

:
:

Defendants
MEMORANDUM
Pending before the court is the report of United States Magistrate Judge
Martin Carlson, which recommends that the court exercise its discretion and
dismiss the instant pro se action with prejudice due to plaintiff’s failure to
timely file his amended complaint as directed by the court. (Doc. 6). Plaintiff
John Walsh filed two documents in response. (Doc. 7, Doc. 8). Neither
document constitutes proper objections to the report nor could they be
construed as an amended complaint.1
The Doc. 7 filing is not addressed to this court and does not relate to
Judge Carlson’s report. Rather, it is a proposed settlement offer to an attorney
for Lackawanna County and the City of Scranton to resolve the homelessness
issue in the county and city by paying $10,000,000 for the next five years to
send the homeless to Florida for the winter and to an operating farm in this

1

The clerk of court, sua sponte, docketed Walsh’s Doc. 8 filing as
objections to Judge Carlson’s report.

area for the summer months.
The first page of Walsh’s Doc. 8 filing is devoted to insulting Judge
Carlson and this court. Walsh is admonished not to include such scurrilous
statements in any further filings with this court as they will be stricken under
Fed.R.Civ.P. 12(f) and he will be subject to sanctioning. The remainder of
Walsh’s Doc. 8 filing will be discussed below.
As set forth in Judge Carlson’s report, Walsh is a serial filer of largely
unsuccessful cases in which he proceeds in forma pauperis. He filed the
instant action on August 18, 2016, alleging that the denial of the issuance of
a permit for him to protest on Lackawanna County Court property, due to his
failure to obtain the required liability insurance, is a violation of his First
Amendment rights. (Doc. 1). Walsh named eight defendants ranging from
individuals to institutions, including a state court judge and several attorneys.
Walsh sought injunctive and declaratory relief, as well as monetary damages
of $10,000,000. With his complaint, Walsh filed a motion to proceed in forma
pauperis, (Doc. 2), which Judge Carlson granted. Thus, Judge Carlson
appropriately screened Walsh’s complaint pursuant to 28 U.S.C.
§1915(e)(2)(B) and correctly found it deficient in many respects. (Doc. 3).
Judge Carlson found that Walsh’s complaint failed to state any
cognizable claim and recommended that the compliant be dismissed without
prejudice and that Walsh be granted leave to amend his complaint. Walsh did

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not file any objections.
On September 12, 2016, the court adopted Judge Carlson’s report and
issued an Order specifically directing Walsh to file an amended complaint as
specified in Judge Carlson’s report, within 21 days of the date of that Order.2
(Doc. 5).
On October 21, 2016, Judge Carlson issued another report stating that
Walsh had not complied with the court’s Order since he failed to amend his
complaint with the 21-day period specified by the court. (Doc. 6). Nor did
Walsh file a timely request for an extension of time within which to file his
amended pleading. As such, Judge Carlson now recommends that the court,
in its discretion, dismiss Walsh’s case with prejudice. Judge Carlson cites to
the Third Circuit’s decision in Pruden v. SCI Camp Hill, 252 Fed.Appx. 436,
438 (3d Cir. 2007).3
2

The court noted that Walsh filed an addendum to his original complaint
to add the City of Scranton as a defendant and to add more alleged violations
of his rights under the Fourth and Fourteenth Amendments. (Doc. 4). The
court directed that any addendum must be incorporated in an appropriate
amended complaint. Also, Walsh was advised that any constitutional claims
against municipal defendants must comport with Monell v. Dept. of Soc.
Servs., New York City, 436 U.S. 658, 694–95, 98 S.Ct. 2018 (1978). See
Carswell v. Bor. of Homestead, 381 F.3d 235, 244 (3d Cir. 2004).
3

In Pruden, however, the Third Circuit specifically pointed out that the
district court had “expressly warned Pruden that the failure to amend his
complaint would result in dismissal of the action with prejudice.” 252
Fed.Appx. at 438. In the instant case, Walsh does not appear to have
(continued...)
3

Because of plaintiff’s pro se status the court has reviewed Walsh’s Doc.
8 filing to determine if it constitutes objections to Judge Carlson’s report or an
amended complaint that comports with prior instructions. In this filing, (Doc.
8 at 7), Walsh states:
Plaintiff is a poor, legally disabled homeless man trying to protest
the plight of the Homeless in Lackawanna County Pennsylvania,
the way people are treated in the Lackawanna County Family
Court, and other issues that are important matters of great public
concern under the 1st Amendment to the United States
Constitution. As a poor, homeless, disabled person, plaintiffs (sic)
status as poor, should be a protected class under the equal
protection clause for this case because the actions of defendants,
requiring plaintiff to pay over $175 for a permit to protest,
requiring me to provide insurance before I can protest, violate my
rights under the equal protection clause of the14th Amendment as
there is no way I can afford these requirements and defendants
have not provided any alternative means for plaintiff to afford
insurance or the permit to peacefully hold a rally or protest.
Walsh suggests that his alleged status as “a poor, legally disabled
homeless man” be recognized as a suspect or quasi-suspect class for
purposes of the 14th Amendment Equal Protection Clause and that “any
government classifications that disadvantage these groups and are
challenged on Equal Protection grounds must receive heightened scrutiny
from the courts to ensure that the classifications are carefully drawn to
achieve important governmental objectives.” As such, he states that his
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(...continued)
received such an express warning. As such, Walsh will now be expressly
warned of the stated consequence if he fails to timely file his amended
complaint as instructed.
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claims in this case should be analyzed under the strict scrutiny standard and
if so, he indicates the court will agree with him and find that the requirement
for insurance for his rally “is not needed and is unnecessary” as well as a 14th
Amendment violation. (Id. at 8).
Rather than analyze, in the first instance, Walsh’s contentions contained
in his 18-page filing, which is actually akin to a legal brief complete with case
citations and application of the cases to his facts and allegations, the court
will allow Walsh one final opportunity to file an amended complaint so that he
can raise his claims in a proper pleading which comports with Fed.R.Civ.P.
8 and 10, and with the guidelines detailed in Judge Carlson’s August 19, 2016
report. (Doc. 3).
Failure of Walsh to timely file his amended complaint as specified will
result in the dismissal of this case, without further notice, and with
prejudice. An appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: November 9, 2016
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-1722-01.wpd

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