MARIN v. LA PALOMA HEALTHCARE CENTER et al
Filing
2
MEMORANDUM OPINION resolving 1 pro se 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.
LA PALOMA HEALTHCARE CENTER
and its alter egos; ITALIAN
MAPLE HOLDINGS, LLC; PLUM
HEALTHCARE GROUP; MARK
BALLIF; PAUL HUBBARD;
ORVILLE LLOYD MARLETT;
GRUPO TELEVISIA
a foreign corporation, and its alter egos
doing business as Xetv San Diego 6
Television; JEANE LENORE MARLETT
TRUST; EMILIO AZCARRAGA JEAN;
GUSTAVO CISNEROS; ALFANSO DE
ANGOITIA; BERNARDO GOMEZ
MARTINEZ; MICHAEL RICHTER,
jointly and severally,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
1:11cv230
Electronic Filing
MEMORANDUM OPINION
Mel M. Marin (“plaintiff”) filed a complaint in this Court on October 5, 2011, seeking
redress under purported causes of action for conversion, fraud and deceit, assault and battery,
section 1983 civil rights, interference with business, intentional infliction of emotional distress,
defamation, invasion of privacy, and wrongful death. See Complaint (Doc. No.s 1-2 & 1-3).1
1
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); and Melvin M. Marinkovic v. Mayor Joseph Sinnott, et al., 1:12cv139 (Doc. No. 21).
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
This action is related to the action plaintiff filed at Marin v. Biros, et al., 1:11cv884. That action
arose while plaintiff was "a candidate for Congress in the Western District of Pennsylvania."
Complaint at 1:11cv884 (Doc. No. 1-2 in 1:11cv884) at ¶1. 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.; 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). In that action plaintiff contended
generally that Biros and her husband, as private citizens, published an article on the internet that
was critical of plaintiff's qualifications for public office and suggested in a false light that he had
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 also 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
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).
2
committed a serious crime, to wit, having murdered his mother. The other defendants in that
action then failed to correct the misinformation after having an opportunity to do so. Id. at ¶¶ 811. The remaining defendants in that action either assisted these defendants or failed to take
appropriate steps to correct the misinformation that was disseminated about defendant during his
candidacy.
In the instant action plaintiff seeks to sue the purported originators of the false story used
against him in Marin v. Biros, et al., 1:11cv884. See Memorandum of Law on Jurisdiction (Doc.
No. 1-1 in 1:11cv230) at 1. These individuals and entities all took actions in California and
jurisdictions other than Pennsylvania. Id.; see also Complaint in 1:11cv230. Plaintiff suffered
an injurious effect from their conduct in Pennsylvania and contends that his injuries in his race
for office are sufficient to support jurisdiction and venue. Id. Plaintiff also sues as "as inheritor
of his Father's and Mother's causes of action (survival actions) against those same defendants in
California, because the defamation [] was intended to interfere with son's duties under his family
trust to rebuild his family's real estate business in Erie, Mercer and Lawrence [counties,
Pennsylvania] that he started to do in 1999, and to protect his parents and prosecute actions for
harms against them." Id. at 2.
Plaintiff further explains that "[i]n other words, the facts for the survival claims for Father
and Mother are 'inextricably intertwined' with plaintiff's own claims against them on defamation
that hurt plaintiff here." Id. "Defendants thereby interfered with plaintiff's powers of attorney
and his contracts with his parents to prosecute their actions and those of their estate, and to
rebuild their real estate business in Pennsylvania which plaintiff was attempting to do in 2009
with bids to Sharon City as shown in the related action Marin v. Fragle, 2:09cv1333 (W.D. Pa.
2009)." Id.
3
Plaintiff submits that jurisdiction exists over half of the claims because he was injured in
this district in conjunction with his candidacy for congressional office. The claims of his father
and mother's estate are intertwined with plaintiff's claims and defendants hurt plaintiff for the
purpose of hurting his parents and their trust. Id. And this state of affairs is sufficient to invoke
jurisdiction and avoid a transfer or dismissal base on forum non-conveniens.
In Marin v. Mayor Joseph Sinnot, et. al, 1:12cv139, this court determined that plaintiff
had an obligation to employ reasonable efforts to effectuate service before a request is made to
the Marshal Service to effectuate service of the complaint. See Opinion of March 26, 2014 (Doc.
No. 21 in 1:12cv139) at 9; see also Local Rule 10(B) (all pro se filers assume responsibilities
inherent to litigation, including responsibility for service of a complaint). Here, plaintiff has
failed to make timely service of his complaint and no extension for addition time under Rule
4(m) has been requested. In addition, plaintiff has failed to keep his address current. Every
address provided by plaintiff in his more recent spate of filings is out-of-date and mail sent to
plaintiff at his various addresses of record consistently has been returned to the court by the
United States Postal Service with a label indicating the address is no longer valid and a
forwarding address is not available. See e.g. Docket sheet and staff notes in Mel Marin v.
William McClincy and Melissa Thompson, 1:11cv132; Melvin M. Marinkovic v. Mayor Joseph
Sinnott, et al., 1:12cv139 and Mel Marin v. Tom Leslie, et al., 2:09cv1453 (each case listing the
address provided by plaintiff in this action and containing staff notes reflecting the return of all
opinions and orders sent to plaintiff at the provided Catonville, MD, address).2 Given this state
of affairs, the court can neither direct plaintiff to attempt to effectuate service of his complaint
Plaintiff changed his address in the related action of Marin v. Biros from the address in the
current record to the Catonville, MD address. See Notice of May 30, 2013 (Doc. No. 5). He did
not change the address in this action, however, and the court will mail a copy of this
Memorandum and Order of Court to the address of record as is the Court's standard policy.
4
2
nor direct plaintiff to submit proof of attempted service and thereafter provide United States
Marshal Service 285 forms so that the Marshal Service may attempt to effectuate service. The
matter is only further complicated and the prejudice to defendants compounded by the passage of
36 months since plaintiff commenced this action.
A court’s decision to dismiss for failure to prosecute is committed to the exercise of its
sound discretion. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 230 (3d Cir. 1998)
(“We review for abuse of discretion a district court’s dismissal for failure to prosecute pursuant
to Rule 41(b).”), abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma City
School Dist., 550 U.S. 516 (2007). In exercising that discretion, a district court should, to the
extent applicable, consider the six factors identified in Poulis v. State Farm Fire and Casualty
Co., 747 F.2d 868 (3d Cir. 1984), to determine whether the sanction of dismissal is warranted.
Harris v. City of Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995).
In Poulis, the United States Court of Appeals for the Third Circuit identified the
following six factors to be considered in determining whether dismissal is proper:
(1) the extent of the party’s personal responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling orders and respond to
discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the
attorney was willful or in bad faith; (5) the effectiveness of sanctions other than
dismissal, which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.
Id. at 868 (emphasis omitted). These factors must be balanced, although not all need to weigh in
favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988).
Consideration of these factors weighs in favor of dismissal. Under this court's local rules
and established pro se practices and procedures plaintiff personally is responsible for supplying
the court with an address that will foster direct and timely communication with the court. He has
5
failed to do so. Further, he has failed to file any motion or provide any form of communication
in an effort to keep the case from getting stale.
Defendants have been prejudiced by plaintiff's failure to attempt service of the complaint
and in the event he did not make service thereafter provide 285 forms so that the Marshal Service
could effectuate timely service. More than three years have passed since the events in question
and defendants have not even been made aware of the existence of plaintiff's potential claims
against them.
As noted above, plaintiff has a history of filing frivolous lawsuits for vexation purposes.
A mere review of plaintiff's complaint strongly suggests that the instant action is more of the
same.
Furthermore, there does not appear to be a more sensible or better suited sanction. A
lesser sanction would effectively be no sanction.
Moreover, plaintiff's "complaint" is filled with assertions that are bald legal conclusions
and elaborate assertions of conspiratorial conduct involving and against his mother which date
back to family disagreements beginning in 2000. The allegations range from falsifying power of
attorney instruments to gain control over toten trusts to attorney representation of plaintiff's
mother in a manner that was adverse against plaintiff with regard to any claims he had at that
time under his mother's trust. See e.g. Complaint (Doc. No. 1-2 in 1:11cv230) at ¶¶ 12-26.
These actions deprived plaintiff of control by way of determinations in divorce proceedings and
probate court in March of 2000. Id. at ¶ 26. Shortly thereafter plaintiff was unable to make
mortgage payments on the family property and was forced to file for bankruptcy in order to save
his parents' estate. Id. at ¶ 27. Attorney/defendant Richter got around the bankruptcy stay by
collecting his fee for the divorce action in San Diego, which was done by forging plaintiff's
mother's name to documents presented to the Bankruptcy judge in New York. Id. at ¶¶ 29-30.
6
This elaborate scheme of theft resulted in the loss of apartments in Arizona valued at $1.4
million as well as the New York Bankruptcy Court failing to recover the full value of the
$850,000 home owned by plaintiff's parents, the $96,000 proceeds from its sale, New York real
estate valued at $15,000 and Pennsylvania real estate valued at $17,000, for a combined loss of
$2.4 million. Id. at ¶¶ 38-38. Plaintiff's efforts to stop this elaborate scheme of fraud failed in a
number of courts at the time. Id. at ¶¶ 40-41.
After plaintiff's mother suffered years of torture and neglect in a nursing home pursuant
to a placement by plaintiff's sister's forged power of attorney over his mother, id. at ¶¶ 43-83,
plaintiff gained control of his mother through his power-of-attorney and placed her at defendant
Oceanside La Paloma care facility. Id. at ¶¶ 110-112. Sister soon came to the facility and sought
to oust plaintiff's control. Id. at ¶ 117. Plaintiff planned to move his mother across the country
to a nursing home in Pennsylvania so he could rebuild the family real estate business started with
three properties in New Castle, Pennsylvania and his mother could continue to be his campaign
manager. Id. at ¶ 121. Plaintiff was assaulted by staff when he attempted to remove his mother
from the facility, but nevertheless removed his mother from the facility. Id. at ¶¶ 123-124. The
Oceanside La Paloma care facility then made false reports to authorities that resulted in an allpoints bulletin being issued for plaintiff. Id. at ¶¶ 126-132. Thereafter, at the insistence of
Attorney Richter and plaintiff's sister, La Paloma care facility staff, Cleveland Clinic Police and
Oceanside Police all joined in a conspiracy to separate plaintiff from his mother and the control
of her care, all in violation of Ohio law. Id. at ¶¶ 138-145. Plaintiff's mother was taken back to
Palomar Vista where medical staff tortured and eventually killed her. Id. at ¶¶ 146-162.
"The intent of RICHTER and LA PALOMA defendants, was to create a basis for police
in another city to arrest or kill [plaintiff] while fighting for his Mother, to get [plaintiff] out of the
way and punish [him], to allow RICHTER and these defendants to seize Mother and kill her so
7
she could not testify against them." Id. at ¶ 171. "These LA PALOMA defendants then caused
Sn Diego television XETV owned by the giant multinational Mexican corporation GRUPO
TELEVISIA, to report the same suggestion of crime that was broadcast in cities throughout the
United States from July 2009 to the date of the filing of this complaint, which suggest[ed]
[plaintiff] was wanted by police for a serious crime, and still is."
Id. at ¶ 172. These defendants
gained control over plaintiff's mother's care and "[a] secondary effect of the false report was to
punish [plaintiff] by destroying his career and damage the rest of his life by a nation-wide
defamation that did, in fact destroy his run for office of Democratic candidate for the United
States House of Representatives from Pennsylvania in 2010, as evidenced by voters in his district
(Erie, Mercer, Butler) asking him what he did with his Mother's body before the slammed the
door and called police, and by the re-publication by Ultraconservatives David and Roberta Biros
in Mercer County, Pa., of the criminal suggestion, which compelled police in every county of his
congressional district to interview plaintiff, follow plaintiff door-to-door, and to detain and
harass [him], preventing [him] from fairly campaigning in three of the four main counties in his
election district." Id. at ¶¶173, 175. The defendants continued to re-publish the defamation even
after the police cancelled the national police bulletin and XETV and David and Roberta Biros republished the defamation without checking its accuracy and plaintiff was "dogged" about the
story throughout his campaign. Id. at ¶ 176. All of this resulted in numerous legal causes of
action that plaintiff can pursue on behalf of himself and his mother and father and losses of more
than $75 million. Id. at ¶¶ 177-363.
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
8
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
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).
A review of plaintiff’s “complaint” reveals that it fails to state a claim upon which relief
can be granted. This court lacks jurisdiction over the defendants, venue is improper in this
district, the factual allegations of the complaint are fanciful and the legal theories are
indisputably meritless. Consequently, it is subject to dismissal for these reasons as well.
Each of the pertinent Poulis factors weighs in favor of dismissal. The complaint likewise
fails to state a claim for relief under Neitzke and its progeny. Consequently, the action
appropriately must be dismissed as vexatious and filed for vindictive and obstructive purposes.
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 1654
Hermitage, PA 16148
(Via United States Mail)
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?