MARINKOVIC v. SINNOTT et al
Filing
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MEMORANDUM OPINION resolving the case. Signed by Judge David S. Cercone on 9/29/16. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MEL M. MARINKOVIC,
Plaintiff,
v.
MAYOR JOSEPH SINNOT, in his individual
and official capacity, CITY OF ERIE,
COUNTY OF ERIE, WHITEY CLEAVER
FIORE LEONE, KYLE FOUST, PHIL
FATICA, JOE GILES, CAROL LOLL,
AND EBERT BEEMAN of Erie County
Council, in their individual and official
capacities, and THE COMMONWEALTH
OF PENNSYLVANIA,
Defendants.
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1:13cv185
Electronic Filing
MEMORANDUM OPINION
Mel M. Marinkovic (“plaintiff”) filed a motion to proceed in forma pauperis on June 26,
2013, and submitted with it a complaint seeking declaratory and injunctive relief as well as
money damages for alleged violations of various constitutional rights.1 Presently before the
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Plaintiff, also known as Melvin M. Marin, 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
court is plaintiff's motion to proceed in forma pauperis. For the reasons set forth below, the
motion will granted and the Clerk will be directed to file the complaint. Further, plaintiff's
claims against the Commonwealth will be dismissed as barred by sovereign immunity; plaintiff's
claims predicated on the inability to challenge and/or seek review of an adverse ruling on the
citation for violation of a city ordinance also will be dismissed as meritless. Plaintiff's claims
predicated on a grossly disproportionate and/or unequal property reassessment will be dismissed
for lack of subject matter jurisdiction and without prejudice to plaintiff seeking review of the
assessment through the avenues available pursuant to state law. Any remaining claims against
the government defendants and/or the individual members of County Council will be dismissed
for failure to state a claim upon which relief can be granted.
M. Marinkovic v. Mayor Joseph Sinnott, et al., 1:12cv139 (Doc. No. 3) at ¶ 112. Plaintiff
attended Harvard University and has a law degree from Oxford University. For additional
information and another account of similar escapades by plaintiff see, e.g.,
http://triblive.com/news/armstrong/8171747-74/marin-county-lawsuit.
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 repeated 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); Motion to Vacate Memorandum & Order Dismissing
Case (Doc. No. 10 in 2:11cv884). The docket in each case 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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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
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 instant action as "a new law suit which is similar to the one already on
file at number 12-139" in the Erie division of this district. Statement attached to the complaint
(Doc. No. 1-2) at 34. The similar suit referenced by plaintiff was Marinkovic v. Sinnott, et al.,
1:12cv139. There, plaintiff raised claims predicated on his purchase of real property from the
City of Erie ("the City") at 313 Poplar Street, Erie Pennsylvania, and the subsequent tax
treatment and assessments of that property by the City of Erie/County of Erie. He also raised
claims based on his receipt of summary citations for failure to maintain the property in
compliance with local codes. All of the claims in that case were resolved pursuant to an Opinion
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and Order entered into the docket on March 26, 2014. See Opinion and Order of March 25, 2014
(Doc. No.s 21, 22) in 1:12cv139.
By plaintiff's own admission the instant complaint is predicated on the same events that
gave rise to the litigation at 1:12cv139. See Statement attached to the complaint (Doc. No. 1-2 in
1:13cv185) at 34. The difference merely is that plaintiff dropped Magisterial District Judge
Robie from the complaint, expressly added the Commonwealth of Pennsylvania to the caption
and added as additional defendants the members of the Erie County Council in their individual
and official capacities. Compare id. at 1-33 with Complaint (Doc. 1-1) in 1:12cv139.
The court issued a through opinion addressing the substance of plaintiff's claims and
providing various reasons why they lack merit or are beyond the proper exercise of this court's
jurisdiction in 1:12cv139. The reasoning and disposition that followed from that opinion applies
with equal force to the claims advanced in this case. Accordingly the court will adopt that
opinion as the appropriate rationale for the disposition of the claims in this case and enter a
substantially similar order 1) dismissing plaintiff's claims against the Commonwealth, 2)
dismissing plaintiff's claims predicated on the inability to challenge and/or seek review of an
adverse ruling on the citation for violation of a city ordinance as meritless; 3) dismissing claims
against the members of the City Council for failure to state a claim and 4) dismissing plaintiff's
claims predicated on a grossly disproportionate and/or unequal property reassessment for lack of
subject matter jurisdiction and without prejudice to plaintiff seeking review of the assessment
through the avenues available pursuant to state law.
Although a portion of plaintiff's claims must be dismissed without prejudice, the court
finds that plaintiff's pursuit of the instant litigation is without foundation. Plaintiff has
experience in the legal field and has filed numerous § 1983 cases. He is well aware of the need
to explore the avenues of relief available to him before raising constitutional issues and to
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research matters in good faith before filing suit. Against this backdrop his pursuit of this lawsuit
is vexatious and filed for vindictive and obstructive purposes. Doing so is an attempt to exploit
the ability to proceed in forma pauperis and the taxpayers are not obligated to fund further
aspects of his fanciful escapade.
An appropriate order will follow.
Date: September 29, 2016
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Mel M. Marinkovic
3900 Dawnshire Drive
Parma, OH 44134
(Via United States Postal Service Mail)
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