MARIN v. THE U.S. ECONOMIC DEVELOPMENT ADMINISTRATION et al

Filing 2

MEMORANDUM 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,
)
)
v.
)
)
THE U.S. ECONOMIC
)
DEVELOPMENT ADMINISTRATION, )
ANDREW REIRD, director of the
)
Philadelphia regional office of the U.S.
)
Economic Development Administration,
)
in his individual and official capacity,
)
and THE SECRETARY OF THE
)
DEPARTMENT OF
)
ENVIRONMENTAL PROTECTION
)
OF THE COMMONWEALTH OF
)
STATE OF PENNSYLVANIA
)
)
Defendants.
)

2:15cv0792
Electronic Filing

MEMORANDUM OPINION
Mel M. Marin (“plaintiff”) filed a motion to proceed in forma pauperis on June 17, 2015,
and submitted with it a "complaint" seeking declaratory and injunctive relief against the
Secretary of the Pennsylvania Department of Environmental Protection and the Director of the
Philadelphia regional office of the United States Economic Development Administration based
on asserted administrative actions these agencies took against Ford City, Pennsylvania.1 For the

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); 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), Marinkovic v.
Sinnott, et al., 1:13cv185 (Doc. Nos. 2 & 3) and Marin v. Ford City, 2:15cv791 (Doc. No.s 6, 8).
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.

reasons set forth below, the motion will be granted and the Clerk will be directed to file the
complaint. Further, the complaint will be dismissed for lack of standing and otherwise failing to
state a claim upon which relief can be granted.

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 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-Trial 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 address he has provided for the
particular case (which includes any change of address upon proper notification to the Clerk).

2

Plaintiff seeks to enjoin or otherwise obtain relief from 1) an enforcement action initiated
by the Pennsylvania Department of Environmental Protection against Ford City for "failure to
'file a feasibility study with costs associated for the new water treatment program'" arising out of
its efforts to enforce "the Safe Drinking Water Act," 42 U.S.C. § 300f et seq., and 2) an action by
the United States Economic Development Administration seeking to collect on the default of a
grant awarded to Ford City in 2000. Complaint (Doc. No. 1-1) at ¶¶ 4, 13, 15, 19-37 and 38-44.
Plaintiff admits that the two agency actions do not involve a common obligation, but instead
merely seek to collect money from Ford City. Id. at ¶ 16. According to plaintiff, "this action is
proper because plaintiff as a taxpayer of Ford City may be personally liable for state and federal
claims against the borough general fund and has a right to join parties claiming that city fund to
determine validity or priority of the claims, . . . and avoid enforcement of multiple claims against
the borough fund directly and against this plaintiff indirectly . . . ." Id. at ¶ 12.
Plaintiff reasons that the proceeding initiated against Ford City by the Pennsylvania
Department of Environmental Protection "is a punitive damage award by the state agency against
Ford City" and "the state has no power to assess a punitive damages award against a
municipality" because to do so violates public policy. Id. at ¶ 19. Similarly, the supposed
default of Ford City under the federal grant was due to extenuating circumstances regarding
environmental remediation that created an impossibility of performance for Ford City and Ford
City council neglected to raise these circumstances as a defense. Id. at ¶¶ 39-40, 44.
Plaintiff seeks a judgment declaring that "it would be inequitable for the United States to
enforce the strict terms of the grant under the circumstances and an injunction barring the
[Pennsylvania Department of Environmental Protection] from doing so . . . ." Id. at 45.
Embedded within the complaint is a contention that plaintiff is entitled to injunctive relief for
3

alleged violations of the Freedom of Information Act, specifically 5 U.S.C.§ 552, because the
requests plaintiff made to the Economic Development Administration seeking records pursuant
to the Freedom of Information Act have not been produced and according to plaintiff this court
may order the production of those records. Id. at ¶¶ 4-10.
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.2 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

2

Plaintiff's long-running practice of buying distressed properties throughout Western
Pennsylvania at tax or sheriff's sales and placing them in his "family trust" for the benefit of
himself and his sister raises a sound inference that he is far from indigent. See, e.g., Motion to
Proceed In Forma Pauperis (Doc. No. 1) at p.2; Complaint in M. Marinkovic v. Mayor Joseph
Sinnott, et al., 1:12cv139 (Doc. No. 7) at ¶ 1; Complaint in Mel M. Marin v. Joseph Fragel, et
al., 2:09cv1333 (Doc. No. 4) at ¶ 3; Complaint in M. Marinkovic v. Mercer County Tax Claim
Bureau, Pennsylvania, 2:16cv292 (Doc. No. 1-1) at ¶ 1.
4

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).
Notwithstanding plaintiff's concerns regarding the propriety of Ford City's council's fiscal
decisions and the sound administration of Ford City's municipal business, plaintiff lacks standing
to pursue the claims presented in the complaint and they are not ripe for adjudication. The
doctrines of standing and ripeness prevent courts from "entangling themselves in abstract
disagreements." Presbytery of New Jersey of 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 seeks relief only as a taxpayer and property owner in Ford City. He has not
advanced allegations demonstrating the potential fiscal calamity actually has manifested itself in
concrete terms. Nor has he set forth factual allegations that plausibly indicate he himself has
5

suffered a threatened or actual injury resulting from the purported illegal action by the state
and/or federal agencies. This is particularly pertinent to ripeness here, where plaintiff seeks to
raise factually-based matters to impugn the decisions of Ford City council in response to the
agency actions. Cf. id. at 1463-64 (the need for concreteness in a declaratory judgment setting is
more substantial where the claim is fact-dependent as opposed to predominately legal).
Consequently, plaintiff lacks standing to pursue relief in this court based on the identified
"harms" and the allegations fail to present a controversy that is ripe for adjudication in any event.
Plaintiff also lacks standing to the extent he seeks to pursue a claim brought under 5
U.S.C. § 552(a)(4)(B). The purpose of this statute is to safeguard "the public from unwarranted
collection, maintenance, use and dissemination of personal information contained in agency
records . . . by allowing an individual to participate in ensuring that his records are accurate and
properly used, and by imposing responsibilities on federal agencies to maintain their records
accurately." Powell v. Internal Revenue Service, 255 F. Supp.3d 33, 41 (D.D.C. 2017) (quoting
Mobley v. CIA, 806 F.3d 568, 585 (D.C. Cir. 2015) and Bartel v. FAA, 725 F.2d 1403, 1407
(D.C. Cir. 1984)). It does so by “allowing individuals on whom information is being complied
and retrieved the opportunity to review the information and request that the agency correct any
inaccuracies.” Id. (quoting Mobley, 806 F.3d 586).3

3

Of course, an individual has to exhaust all administrative remedies under the Privacy Act
and/or the Freedom of Information Act before recourse to federal court is proper. Hidalgo v.
F.B.I., 344 F.3d 1256, 1258 (D.C. Cir. 2003) (“Exhaustion of administrative remedies is
generally required before filing suit in federal court so that the agency has an opportunity to
exercise its discretion and expertise on the matter and to make a factual record to support its
decision.”) (quoting Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir.
1990) and citing McKart v. United States, 395 U.S. 185, 194 (1969)).
6

Here, plaintiff is seeking records relating to a grant given to Ford City which was about to
be enforced by the United States in a federal collection action. The information he requested had
nothing to do with his own personal information. Therefore, neither the Privacy Act nor the
Freedom of Information Act afforded any individual rights to plaintiff in conjunction with his
request(s) for information. And of course, plaintiff was not in a legal position to demand
information pertaining to the actions and activities of Ford City. Consequently, plaintiff lacks
standing to purse relief under these statutes as well.4
For the reasons set forth above, plaintiff’s complaint will be dismissed for lack of
standing and otherwise failing to state a claim upon which relief can be granted. Appropriate
orders will follow.
Date: September 27, 2018

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

cc:

Mel M. Marin
824 4th Ave., #3
Ford City, PA 16226

(Via United States Postal Service Mail)

4

Even a cursory review of plaintiff's submissions likewise makes clear that he has failed to
exhaust administrative remedies in any event.
7