MARIN v. FORD CITY PENNSYLVANIA et al

Filing 6

OPINION resolving 1 plaintiff's motion to proceed in forma pauperis. Signed by Judge David S. Cercone on 9/27/18. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MEL M. MARIN,
Plaintiff,
vs.
FORD CITY,
FORD CITY COUNCIL MEMBERS,
in their personal capacities, jointly
and severally,
Defendants.

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2:15cv791
Electronic Filing

OPINION
Mel M. Marin (“plaintiff”) filed a motion to proceed in forma pauperis on June 17, 2015,
and submitted with it a complaint seeking redress for the alleged violation of his First and
Fourteenth Amendment rights in conjunction with a shut-off of water service at a house in Ford
City.1 The real estate is owned by a family trust and plaintiff and his sister are the beneficiaries

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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),
Marin v. La Paloma Healthcare Center, et al., 1:11cv230 (Doc. No.s 2 & 3), and Marinkovic v.
Sinnott, et al., 1:13cv185 (Doc. Nos. 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 attended Harvard University and has a law degree from Oxford

under the trust. Presently before the court is plaintiff's motion to proceed in forma pauperis. For
the reasons set forth below, the motion will be granted and the Clerk will be directed to file the
complaint. Further, plaintiff's claims will be dismissed for failure to state a claim upon which
relief can be granted and a final judgment in the form of dismissal will be entered.
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,

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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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 regarding the connection and termination of water service
at a house he acquired by tax sale. Motion to Proceed in forma pauperis (Doc. 1) at p.2;
Complaint (Doc. No. 1-1) at ¶¶ 5-16. Ownership of the house is in a family trust. Motion to
Proceed in forma pauperis (Doc. 1) at p.2. Plaintiff and his sister are the beneficiaries of that
trust. Id.
Plaintiff arranged to have the water turned on at the house and gave an address in
Hermitage, Pennsylvania, as the billing address. Complaint at ¶ 5. The water authority workers
were unable to activate service because a water leak was discovered during the connection
process. Id. One of the workers informed another that plaintiff would not have to pay for the
failed attempt. Id. Two months later a water service charge subsequently was generated and
sent to the Hermitage address provided by plaintiff. Id. at ¶ 8. Plaintiff claims to have received
the bill three months after the failed effort to connect service. Id. at ¶ 10.

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Upon receiving the bill plaintiff contacted the water authority because he had not used any
water. Id. at ¶¶ 8-9. Plaintiff then requested a change of address for the billing, and gave the
water authority a mailing address in Ford City. Id. at ¶ 10.
Plaintiff had the water successfully turned on at the house on February 5, 2015. Id. at ¶
11. On April 13, 2015, plaintiff received a bill which included a late charge from the previous
month and a notice of intent to disconnect on a date that had already past. Id. at ¶ 13. Of course,
the bill was sent to the Hermitage address instead of the Ford City address. Id. at ¶ 13. It
included late fee charges. Id. at ¶ 13.
On April 15, 2013, plaintiff discovered a posted notice on the door of the property
indicating the service would be terminated and re-connection fees would be assessed in the event
water service was restored. Id. at ¶ 14. The bill also contained a basic service charge, which was
not based on actual water usage. Id. at ¶¶ 15, 22(a). When the meter was actually read, it
revealed that only a small amount of water had been used. Id. at ¶ 16. The water service was
terminated and with it plaintiff lost the ability to use the sewage service. Id. at ¶ 16.
The bills received by plaintiff contained numerous charges for various events or services,
such as generation of a work order for shut off, completing a shut-off, final meter reading,
posting a shut-off notice and so forth. Id. at ¶ 18, 21-22; Ordinance 696 (Doc. No. 1-2). Plaintiff
received a copy of the schedule of fees pertaining to the termination of services. Id. at ¶ 14.
Plaintiff inquired with borough staff about the fact that he did not receive notice in a
timely manner but was told the fees were the result of a local ordinance and he would have to
pay them. Id. at ¶ 21. Plaintiff wrote a letter to the borough asking for leeway to pay the charges
over time based on "indigence," but the borough did not respond to plaintiff's inquiry. Id. at ¶¶
29-30.

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Plaintiff seeks declaratory and injunctive relief on the ground that Ordinance 696 and the
defendant's enforcement of it violate his rights to due process. Id. at ¶¶ 34-39. It does so by
failing to 1) allocate cost proportionally with the specific amount of water used; 2) provide for
timely and adequate notice; and 3) draw distinctions based on the financial and economic
abilities of the consumer. Id. at ¶¶ 34-39. It also violates the Fourteenth Amendment by
imposing fees that are irrational and arbitrary. Id. at ¶ 17.
Plaintiff likewise claims that his rights under the First Amendment have been violated. Id.
at ¶¶ 60-78. Plaintiff notified the Ford City Borough Council of his challenge to Ordinance 696
directly after receiving the posted notice that his water service was being terminated. Id. at ¶ 60.
He first informed the council of his challenge in person and again in writing on April 16, 2015,
by providing a draft copy of his complaint. Id. at ¶ 60. He asked the borough to forgo
termination of service and to give him additional time to pay the assessed fees. Id. at ¶ 60. He
also made council aware of two acts of negligence by the borough that were occurring which
would result in the borough's residents having to pay claims in excess of $500,000.00. Id. at ¶¶
67-69.2 His requests were acknowledged and thereafter denied in a formal letter dated May 9,
2015. Id. at ¶ 61. His water service was disconnected on May 19, 2015. Id. at ¶ 61.
Plaintiff having advised the council that 1) the Ordinance was illegal and 2) the borough
was engaging in malfeasance purportedly were acts of protected speech, and council's informed
decision to permit termination to occur thereafter assertedly was an act of retaliation. Id. at ¶¶
64-65, 67-69. The act of retaliation, i.e., the loss of water service, resulted in the loss of quiet
enjoyment of the residence. Id. at ¶ 76. It likewise has resulted in plaintiff's inability to live and

These events underlie plaintiff's lawsuit filed at Marin v. U.S. Economic Development Admin.,
et al., 2:15cv792.
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work in Ford City. Id. at ¶ 76. All of these actions have violated plaintiff's rights as secured by
the First and Fourteenth Amendments.
Finally, plaintiff seeks declaratory relief enjoining the borough from enforcing an
ordinance that prohibits a real estate owner from letting the grass grow over one-foot high. Id. at
¶ 43. Plaintiff was informed of the ordinance by borough police. Id. at ¶ 43. The ordinance can
be enforced by posting notice on the property and does not require notification by mail. Id. at ¶
43. Failure to comply may lead to an arrest. Id. at ¶ 43.
Plaintiff does not know if his property has been cited for violation of un-kept property. Id.
at ¶ 45. After termination of his water service, plaintiff left his house and does not have the
funds to travel back and forth to cut the grass. Id. at ¶ 42. But the mere threat that he will be
cited, receive notice only by posting and be subject to arrest for failure to comply is an unlawful
form of extortion. Id. at ¶ 47. It likewise is based on Pennsylvania law that has been repealed
and not replaced. Id. at ¶¶ 48-49. Because the borough does not follow the current procedure,
enforcement of the ordinance purportedly violates the Fourth and the Fourteenth Amendments.
Id. at ¶¶ 52-56. Accordingly, plaintiff asserts he is entitled to a declaration finding the rule to
constitute extortion by threat of arrest and unlawful imprisonment and an injunction barring the
borough from enforcing it. Id. at ¶ 57.
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. A § 1983 claim provides a vehicle for
vindicating a violation of federal rights. Groman v. Township of Manalapan, 47 F.3d 628, 633
(3d Cir. 1995). A cause of action under §1983 has two elements: a plaintiff must prove (1) a
violation of a right, privilege or immunity secured by the constitution or laws of the United
States (2) that was committed by a person acting under color of state law. Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996); Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir.

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1997); Berg v. Cty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000) (“The Plaintiff must
demonstrate that a person acting under color of law deprived him of a federal right.”) (citing
Groman, 47 F.3d at 633)).
In order to establish that a defendant violated a constitutional right, “the exact contours of
the underlying right said to have been violated” must be determined. Berg, 219 F.3d at 268
(citing City of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)). While plaintiff generally
asserts that he was denied his rights to due process and equal protection and subjected to
retaliation with regard to the fees for termination of water service in conjunction with the family
trust's ownership of real property in Ford City, when the complaint is stripped of its hyperbole
and generalized conclusions it fails to set forth little factual detail from which to determine
whether plaintiff's rights plausibly have been violated. Nevertheless, the court will afford
plaintiff the most favorable reading possible in light of his pro se status and proceed with the
issues raised.
Plaintiff's interweaving of Fourteenth Amendment due process and First Amendment
retaliation claims in his complaint is unavailing. These claims are founded on two areas of
§1983 jurisprudence. First, plaintiff must be able to satisfy the substantive or procedural due
process component of his claim that the forms of notice employed and fees charged by the
borough in conjunction with providing municipal water service violate the Fourteenth
Amendment.
"The touchstone of due process is the protection of the individual against arbitrary action
of government." Miller v. City of Philadelphia, 174 F.3d 368, 374 (3d Cir. 1999) (citing Wolff
v. McDonnell, 418 U.S. 539, 558 (1974)). Where a member of the executive branch is alleged to
have engaged in abusive action, “only the most egregious official conduct can be said to be

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arbitrary in the constitutional sense.” Id. at 375 (quoting County of Sacramento v. Lewis, 523
U.S. 833, 845 (1998)). To generate liability the conduct "must be so ill-conceived or malicious
that it 'shocks the conscience.'" Id.
The “shocks the conscience” standard is not self-executing. Lewis, 523 U.S. at 845. It
nevertheless serves as “the beginning point in asking whether or not the objective character of
[the conduct in question] is consistent with our traditions, precedents, and historical
understanding of the Constitution and its meaning.” Id. at 857 (citing Lewis, 523 U.S. at 1722
(Kennedy, J., concurring)).
Beyond plaintiff's bald and unsubstantiated conclusions, the complaint does not contain
any facts to support plaintiff's contention that the fees were part of a diabolical scheme to
hoodwink taxpayers and artificially increase their taxes. And even assuming the fees were
grossly disproportionate to actual water consumption and/or the human recourses needed to
complete the service tasks at hand, such executive action simple cannot arise to the level of
malfeasance or intentional conduct that shocks the judicial conscience.
Second, plaintiff's reliance on the procedural component of the Due Process Clause of the
Fourteenth Amendment likewise is wide of the mark. Where a state provides a system of notice
and opportunity to challenge the deprivation of property, it affords the process that is required by
the Fourteenth Amendment. The record sufficiently indicates that plaintiff has been afforded due
process.
"[A] state provides constitutionally adequate procedural due process when it provides
reasonable remedies to rectify a legal error by [an entity charged with fulfilling a constitutional
or congressionally imposed mandate]." DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 597
(3d Cir.1995), overruled on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of

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Warrington, 316 F.3d 392 (3d Cir.2003). In other words, when a state "affords a full judicial
mechanism with which to challenge the [] decision" in question, the state provides adequate
procedural due process, whether or not the plaintiff avails him or herself of the provided appeal
mechanism. Id. (quoting Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 682 (3d
Cir.1991)).
Here, plaintiff admits that the borough did attempt to provide him notice both by mail and
posting. Plaintiff admittedly provided one address and then changed to another, and complains
that the notice was sent to the first address provided and not the more recent one given. Plaintiff
is no stranger to complaining about confusion created by these types of arrangements and always
seeks to lay fault for delay at a governmental entity's doorstep. See footnote 1, supra. Whatever
else should be noted about the events in question, it cannot be said that the allegations set forth a
plausible showing that the defendant has adopted a system of notification that is not reasonably
calculated to provide actual notice and/or has implemented a system designed to prevent an
aggrieved party from seeking administrative and/or judicial redress.
Moreover, plaintiff clearly could have received advanced notice of the termination fees
before deciding to sign up for the service. He likewise could have availed himself of a number
of avenues to challenge any colorable grievance that arose. The record does not imply that he
pursued any of these. Consequently, a procedural due process claim has not plausibly been set
forth.
Plaintiff's attempt to seek shelter in the First Amendment fairs no better. In order to plead
a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally
protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from
exercising his constitutional rights, and (3) a causal link between the constitutionally protected

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conduct and the retaliatory action. Id. at 793 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977); Latessa v. New Jersey Racing Comm'n, 113 F.3d 1313, 1319
(3d Cir.1997)).
Plaintiff cannot plead facts that plausibly show the second element of a First Amendment
retaliation claim can be satisfied. No facts are alleged that make it plausible that either the notice
of termination and/or the fees assessed in conjunction therewith or for restoration of service were
predicated on an improper purpose. Saying it is so in a conclusive fashion does not supply the
facts necessary to make such a claim plausible. Furthermore, plaintiff has not been barred from
pursuing relief ordinarily available to those who have grievances with public utility service
providers. The complaint is devoid of facts which identify an improper impediment to such a
review.
Plaintiff likewise has not set forth facts that plausibly show he has been impeded in an
improper manner from seeking review of the billing statements and/or restoration of service.
Plaintiff merely quarrels with those who have insisted that he comply with the predetermined
costs and responsibilities of availing oneself of such services. Even assuming the shortcomings
identified by plaintiff, his difficulties are not of a constitutional dimension. In short, the
allegations of the complaint make clear that plaintiff cannot allege the presence of a form of
retaliatory action sufficient to deter a person of ordinary fitness from seeking relief from a notice
of termination and/or obtaining restoration of municipal water service. Consequently, plaintiff's
attempt to invoke the First Amendment is without merit.
Plaintiff's claims based on his concern that he might get cited for failing to keep the
property properly maintained are not ripe for adjudication. The doctrine of ripeness prevents
courts from "entangling themselves in abstract disagreements." Presbytery of New Jersey of

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Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994) (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 148 (1967)). "[R]uling on federal constitutional matters in
advance of the necessity of deciding them [is to be avoided]." Id. (quoting Armstrong World
Indus., Inc. v. Adams, 961 F.2d 405, 413 (3d Cir.1992)). Consideration must be given to "both
the fitness of the issues for judicial decision and the hardship to the parties of withholding court
consideration." Id. at 1462-63 (quoting Abbott Labs., 387 U.S. at 149). In order to satisfy these
requirements a case must present "'a real and substantial controversy admitting of specific relief
through a decree of a conclusive character, as distinguished from an opinion advising what the
law would be upon a hypothetical state of facts.'" Id. at 1463 (quoting North Carolina v. Rice,
404 U.S. 244, 246 (1971) (quotation omitted). "A federal court's jurisdiction therefore can be
invoked only when the plaintiff himself has suffered 'some threatened or actual injury resulting
from the putatively illegal action . . . .'" Id. (citing Warth v. Seldin, 422 U.S. 490, 499 (1975).
Plaintiff's challenges to the potential enforcement of the lawn ordinance are not ripe.
Plaintiff admits that the property in trust and upon which he basis this lawsuit has never been
cited by defendant's code enforcement officers. His predictions about what might happen are
based on pure speculation and conjecture. In other words, they are a purely hypothetical state of
affairs. Such predictions do not suffice to establish an injury in fact giving rise to an ability to
fashion concrete and meaningful relief. Consequently, plaintiff's attempts to ease his
apprehensions about being an absentee real estate owner do not satisfy the requirements for
initiating a lawsuit.
For the reasons set forth above, the Clerk will be directed to file plaintiff's complaint,
plaintiff's claims will be dismissed for failure to state a claim and a final judgment order will be

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entered. An appropriate order will follow.
Date: September 27, 2018

s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge

cc:

Mel M. Marin
3900 Dawnshire Dr.
Parma, OH 44134

(Via CM/ECF Electronic Mail)

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