MARIN v. SECRETARY OF THE COMMONWELATH OF PENNSYLVANIA
Filing
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MEMORANDUM OPINION resolving 1 Plaintiff's Motion to Proceed in Forma Pauperis. Signed by Judge David S. Cercone on 9/29/14. (kak)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MEL M. MARIN,
Plaintiff,
v.
SECRETARY OF THE
COMMONWEALTH OF
PENNSYLVANIA,
Defendant.
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1:11cv123
Electronic Filing
MEMORANDUM OPINION
Mel M. Marin (“plaintiff”) filed a complaint in this Court on June 1, 2011, seeking
declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201,
challenging a Pennsylvania statue which in plaintiff's view requires all candidates for public
office to divulge to the public their home address.1 Presently before the court is plaintiff's
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Plaintiff, also known as Melvin M. Marinkovic, is a serial pro se filer who has filed vexatious
litigation in this court in Mel Marin v. The Erie Times, et al., 1:11cv102 (Doc. No. 18), aff'd, 525
F. App'x 74 (3d Cir. 2013); In re: Joseph Fragile, et al., 2:11cv788 (Doc. No. 8); In re: Joseph
Fragile, et al., 2:11cv789 (Doc. No. 7), Mel Marin v. Tom Leslie, et al., 2:09cv1453 (Doc. No.s
57 & 58); Melvin M. Marinkovic v. Mayor Joseph Sinnott, et al., 1:12cv139 (Doc. No. 21) and
Marin v. La Paloma Healthcare Center, et al., 1:11cv230 (Doc. No.s 2 & 3). He has filed an
action challenging the actions of private citizens in opposing his campaign for federal congress,
which the court found likely to be "more of the same." See Marin v. Robert A. Biros, et al.,
2:11cv884 (Doc. No. 6 at 4). Plaintiff also has pursued an action challenging the need for him to
submit his social security number in order to receive a profession license as an Emergency
Medical Technician which the court found to be without merit at summary judgment. See
Opinion of April 11, 2014 in Mel Marin v. William McClincy and Melissa Thompson,
1:11cv132 (Doc. No. 81 in 1:11cv132). He likewise has filed over 70 proceedings in other
jurisdictions and been placed on the "Vexatious Litigant List" by the State of California in
connection with a filing in the San Diego Superior Court at No. 720715. See Transmittal
Statement of the Bankruptcy Court to Accompany Notice of Appeal (Doc. No. 1-14) in In re:
Joseph Fragile, et al., 2:11cv789 (W.D. Pa. June 15, 2011) at 6 n.3. Plaintiff "was once a law
clerk in the federal court and a 9th Circuit extern." Verified First Amended Complaint in Melvin
M. Marinkovic v. Mayor Joseph Sinnott, et al., 1:12cv139 (Doc. No. 3) at ¶ 112.
Plaintiff also uses different addresses in different states to maintain his pending cases. He
frequently claims not to have received mail at the address he maintains in the court's docket and
motion to proceed in forma pauperis. For the reasons set forth below, the motion will granted,
the Clerk will be directed to file the complaint and an order will be entered declining to exercise
jurisdiction over the action.
The United States Court of Appeals for the Third Circuit has instructed the district courts
to utilize a two-step analysis to determine whether to direct service of a complaint where the
plaintiff seeks to proceed in forma pauperis. First, the court must determine whether the litigant
is indigent within the meaning of 28 U.S.C. § 1915(a). Second, the court must determine
whether the complaint is frivolous or malicious under 28 U.S.C. § 1915(d). Roman v. Jeffes,
904 F.2d 192, 194 n.1 (3d Cir. 1990). The court finds plaintiff to be without sufficient funds to
pay the required filing fee. Thus, he will be granted leave to proceed in forma pauperis.
In Neitzke v. Williams, 490 U.S. 319 (1989), the Supreme Court identified two types of
legally frivolous complaints: (1) those based upon indisputably meritless legal theory, and (2)
those with factual contentions which clearly are baseless. Id. at 327. An example of the first is
where a defendant enjoys immunity from suit, and an example of the second is a claim
seeks to reset his own deadlines for compliance with any particular pretrial deadline. A review
of his filings in the related dockets reflects the use of such tactics. See e.g. Motion for Service
(Doc. No. 13 in 1:12cv139); Motion for an Order to Allow Filing of Opposition to Motion to
Dismiss Out-of-Time (Doc. No. 17 in 1:12cv139); Notice of and Motion for Leave to Allow
Responses to Order of April 11, 2013 Out-of-Time and Request for Clerk to Send Case
Management Order and Declaration in Support (Doc. No. 51 in 2:09cv1453) at 1; Notice of and
Motion to Supplement Motion for Late Response to Order of April 11, 2013 Out-of-Time and
Request for Clerk to Send 2011 Case Management Order (Doc. No. 55 in 2:09cv1453) at 1;
Plaintiff's Notice of and Motion for Leave to File a Pre-Trail Statement Out-of-Time (Doc. No.
31 in 2:06cv690) at 1; Plaintiff's Notice of Change of Address and Motion for Remailing (Doc.
No. 52 in 1:11-cv-132); Motion for Leave to File Opposition to Summary Judgment Out of Time
(Doc. No. 64 in 1:11-cv-132 at 5-6); Motion for Leave to File Third Amended Complaint Out of
Time (Doc. No. 65 in 1:11-cv-132 at 1). The docket verifies that in accordance with the Local
Rules all orders and opinions are mailed to plaintiff at the mailing address he has provided for
the particular case (which includes a change of address upon proper notification to the Clerk).
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describing a factual scenario which is fanciful or delusional. Id. In addition, Congress has
expanded the scope of § 1915 to require that the court be satisfied that the complaint states a
claim upon which relief can be granted before it directs service; if it does not, the action shall be
dismissed. 28 U.S.C. § 1915(e) (2) (B) (ii).
Plaintiff filed the action while he was "a candidate for Congress in the Western District of
Pennsylvania." Complaint (Doc. No. 1-1) at ¶ 2. Plaintiff had registered as a candidate in the
primary election for the 3rd Congressional District in order to challenge Representative Kathy
Dahlkemper for the democratic nomination. Id. at ¶ 3; see also Memorandum Order of August
30, 2012, in Marin v. The Erie Times, et al., 1:11cv102 (Doc. No. 18 in 1:11cv102) at 4, aff'd,
525 F. App'x 74 (3d Cir. 2013).
On November 3, 2011, this court received a notice a notice from plaintiff indicating he
had commenced a parallel action in Pennsylvania "state court on the same action." Notice of
October 26, 2011 (Doc. No. 2). Plaintiff explained that the state attorney general had accepted
service of his state court action, granted "a fee waiver" and the state court had scheduled a
dispositive hearing on the matter. Id. No further correspondence has been received from
plaintiff.
It is well settled that relief pursuant to the Declaratory Judgment Act is discretionary.
State Auto Ins. Co. v. Summy, 234 F.3d 131 (3d Cir. 2001); Reifer v. Westport Ins. Corp., 751
F.3d 129 (3d Cir. 2014). After considering each of the various factors that guide the exercise of
that discretion, see Reifer, 751 F.3d at 146, it is clear that "considerations of practicality and wise
judicial administration" counsel the dismissal of this action. Id. at 139 (citing Wilton v. Seven
Falls Co., 515 U.S. 277, 288 (1995)).
Specifically, it is less than clear that a declaration by this court will resolve any remaining
uncertainty of obligation that gave rise to the filing of the complaint. According to plaintiff's
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more recent submission, it will be more convenient and expedient for the parties to proceed in
the state court proceeding. There is no reason to assume the public interest in resolving the
parties' dispute cannot be vindicated in the state court proceeding, particularly where the exact
same controversy has been presented to the state courts. And proceeding with the instant matter
will result in duplicative litigation.
In light of the above, the court will exercise its discretion and decline to exercise its
jurisdiction under the Declaratory Judgment Act. An appropriate order will follow.
Date: September 29, 2014
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Mel M. Marin
P. O. Box 80454
San Diego, CA 92138
(Via CM/ECF Electronic Mail)
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