Rossmann v. Duke et al

Filing 8

MEMORANDUM OPINION AND ORDER DISMISSING CASE. Motions terminated: 3 MOTION for Leave to Proceed in forma pauperis filed by Brud Rossmann. Signed by U.S. District Judge Roberto A. Lange on 1/24/18. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

BRUD ROSSMANN,

4:17-CV-4163-RAL

Plaintiff,
OPINION AND ORDER

vs.

DISMISSING CASE

KIRSTJEN NIELSEN, SECRETARY OF
HOMELAND SECURITY; L. ERIC
PATTERSON,DIRECTOR OF THE
FEDERAL PROTECTIVE SERVICE; JOSEPH
MAHER,DEPARTMENT OF HOMELAND
SECURITY DEPUTY GENERAL COUNSEL;
and JOHN DOES ONE THROUGH THREE,
Defendants;

Plaintiff Brud Rossman(Rossmann) filed this pro se complaint against Elaine Duke,' the
Acting Secretary of the Department of Homeland Security(DHS), L. Eric Patterson, Director of
the Federal Protective Service (FPS), Joseph Maher, DHS General Counsel, and John Does One,
Two, and Three, alleging that the government had effected "an unlawful and eternal false arrest"

of Rossmann. Doc. 1 at ^ 4. Rossmann did not pay any filing fee, but rather submitted a motion
to proceed in forma pauperis. Doc. 3. On December 14, 2017, this Court entered an Opinion
and Order that directed Rossman to show cause within thirty days as to why this filing should not

be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as a frivolous and malicious filing. Doc.

'Pursuant to Fed. R. Civ. P. 25(d), a public officer's successor is automatically substituted as a
party. Kirstjen Nielsen was confirmed by the United States Senate as the Secretary of Homeland
Security on December 5, 2017.

6. Rossman has failed to file anything with this Court within that timeframe. For the reasons
explained, Rossman's case is dismissed.
I.

Background

The allegations in Rossmann's complaint are somewhat difficult to decipher. In essence,
Rossmann alleges that the state of Alabama falsely issued an arrest warrant for Rossmann as a

terrorist threat, and cc'd unknown "@jsu.edu" email addresses. Doc. 1 at ^ 41. The warrant
purportedly was either dismissed by a local United States Attorney, Doc. 1 at

9, or criminal

proceedings were never initiated. Doc. 1 at ^ 43. However, this false arrest warrant allegedly
was spread—via a series of hacks perpetrated by government contractors and perhaps the
unknown email addresses—across many federal computer systems, including the DHS and EPS

systems. Doc. 1 at

5, 41^2. Consequently, Rossmann claims that he is unable to obtain a

passport, travel, or go to any federal facility protected by the EPS without being unlawfully
arrested. Doc 1 at

11-13, 37. Rossmann asserts that he has spoken with individuals within

DHS about removing the unlawful warrant from their system to no avail. Doe. 1 at m 33-36.
As a result of the DHS's failure to remove the warrant, Rossmann claims his limited resources

are being consumed. Doc. 1 at Tf 57. Rossmann seeks $10,000,000.00 in damages from the
named defendants, injunctive relief in the form of the deletion of the false arrest warrant from the

relevant government systems, declaratory relief that the "cretins" responsible are found to be
"contemptible human scum," and any other relief that the Court deems proper. Doc. 1 at 25.
II.

Discussion

The United States Supreme Court explained that the federal in forma pauperis statute "is

designed to ensure that indigent litigants have meaningful access to the federal courts." Neitzke
V. Williams. 490 U.S. 319, 324(1989)(internal citation omitted). To that end, it allows a litigant

to file a claim if they eannot afford the costs of a lawsuit. Id However, federal courts are
empowered to screen unwarranted suits. The Supreme Court articulated this principle:
Congress recognized, however, that a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an. economic incentive to refrain

from filing frivolous, malicious, or repetitive lawsuits. To prevent such abusive or
captious litigation, § 1915(d)[now § 1915(e)] authorizes federal courts to dismiss a claim
filed in forma pauperis if the allegation of poverty is untrue, or if satisfied that the action
is fnvolous or malicious. Dismissals on these grounds are often made sua sponte prior to
the issuance of process, so as to spare prospective defendants the inconvenience and
expense of answering such complaints.
Id. (internal citations and quotations omitted). An action may be deemed fiivolous or malicious,

and thus subject to summary dismissal pursuant to § 1915(e)(2)(B)(i),"if it is filed in bad faith to
harass the named defendants or if it presents abusive or repetitive claims." Mavard v. Tallarico.
No. CrV. 13-661 DWF/JJK, 2013 WL 2470243, at *2(D. Mirm. June 7, 2013)(internal citations

omitted); see also Carter v. Shafer. 273 Fed. App'x. 581, 582 (8th Cir. 2008) (unpublished
opinion) (affirming dismissal of suit as malicious where plaintiff had filed 30 lawsuits in
previous five years raising same or substantially similar issues and collecting similar cases).
Rossmann's action appears to warrant dismissal as a malicious filing. He filed this action
with this Court on November 30, 2017. A review of the Public Access to Court Electronic

Records(PACER)indicates that between November 27 and November 30, Rossmann filed this

same suit in at least seven other federal district courts in Arizona, Colorado, Kentucky,
Oklahoma, Texas, Utah, and Wyoming. See Rossmann v. Duke et ah. 2:17-ev-04332-ESW;
Rossmann v. Duke et ah. 17-cv-02839-GPG: Rossmann v. Duke et ah. 5:17-ev-00467-KKC;
Rossmann v. Duke et ah. 5:17-cv-01274-HE; Rossmann v. Duke et al.. 4:17-me-03124;
Rossmann v. Duke et ah. 2:.17-cv-01227-CW; Rossmann v. Duke et al.. l:17-ev-00199-SWS.

The primary difference between each of these filings is that Rossmarm listed an address within
each district where he filed. This case alleges a Sioux Falls address, but Rossmann claims to

have residences in Chandler, Arizona; Denver, Colorado; Lexington, Kentucky; Oklahoma City,
Oklahoma; Houston, Texas; Salt Lake City, Utah; and Casper, Wyoming, among others.
Searching beyond the present case, a review of PACER indicates that Rossmann has filed over

100 cases in various federal district courts since 2010. Many of these cases are, as here,
duplicative of each other.
Congress has empowered the federal courts to dismiss fiivolous or malicious lawsuits

filed by individuals who attempt to use 28 U.S.C. § 1915 to abuse the federal court system. The
Eighth Circuit has held that the filing of multiple lawsuits alleging the same or similar claims is

malicious under that statute. Carter. 273 Fed. App'x at 582. Rossmann's complaint in this case
has all the hallmarks of a malicious suit that would typically be subject to dismissal. Because
this Court is mindful to allow legitimate pro se filers access to the courts, this Court allowed
Rpssman thirty days to show cause as to why his filing did not constitute the type of fiivolous or

malicious action that § 1915(e)(2)(B)(i) empowers this Court to dismiss. In its prior ruling, this
Court stated: "If Rossman does not respond within thirty days of sending of this order to the
address he lists in Sioux Falls or if the Sioux Falls address is phony, this Court will dismiss the
case." Doc. 6 at 4. The address Rossman listed in Sioux Falls turned out to be invalid or

insufficient. Doc. 7. That letter was returned, so the Clerk of Court resent the prior order to
I

Rossman's address in Washington, D.C., that was listed on the envelope that contained the
original complaint, on December 20, 2017. Doc. 8. In the thirty days since Rossman was sent
that prior order, he has not responded.
III.

Conclusion

For the reasons stated above, it is hereby

ORDERED that Rossmann's complaint is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) as a frivolous, malicious, or repetitive lawsuit.

DATED this

day of January, 2018.

BY THE COURT;

ROBERTO A LANGE

UNITED STATES DISTRICT JUDGE