Semiani v. United States of America

Filing 13

ORDER ACCEPTING 7 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge Sam A Lindsay on 4/19/2017) (aaa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LARBI SEMIANI,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL NO. 3:17-CV-0080-L-BK

ORDER
Before the court is Plaintiff’s Complaint (“Complaint”) (Doc. 2), filed January 9, 2017.
This pro se action was referred to Magistrate Judge Renee Harris Toliver, who entered the
Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) on
January 31, 2017, recommending that the court dismiss the action. The Report determined that
the Complaint alleged substantially the same facts and events, and includes the same defendant as
Plaintiff’s most recent previous lawsuits in the Eastern District of Kentucky and Southern District
of New York. See Semiani v. United States, No. 2:16-CV-1724, 2016 WL 6879574 (citing Semiani
v. United States, No. 5:16-CV-00160 (E.D. Ky. May 25, 2016); Semiani v. United States, No. 1:16CV-2850 (S.D.N.Y. Apr. 21, 2016)). Accordingly, the Report concluded that this action is
duplicative and should be dismissed as frivolous and malicious. The Report also recommended,
in light of Plaintiff’s abusive filing history and the frivolous nature of the claims asserted in the
case, that Plaintiff be warned that if he persists in filing frivolous or baseless cases, the court may
impose monetary sanctions and/or bar him from bringing any further actions. Specifically, the

Order – Page 1

Report noted that Plaintiff has filed over a dozen actions in seven district courts nationwide seeking
essentially the same relief based on the same facts. Plaintiff has filed an objection to the Report.
A.

Plaintiff’s Objection
Plaintiff’s objection does not identify the part of the Report to which he raises an objection.

Instead, he continues to allege claims that are duplicative of those asserted by Plaintiff in his prior
lawsuits. Moreover, the court notes that Plaintiff’s objection is not signed in accordance with
Federal Rule of Civil Procedure 11(a), and it was submitted using the Assist Team’s e-mail
address, not through the mail or the Electronic Case Filing (ECF) system. Accordingly, the
objection is overruled, as it does not properly identify the portion of the Report to which it is
objecting.
B.

Abusive and Improper Filings
Although he is a registered ECF user, Plaintiff has repeatedly disregarded court procedures

and submitted unsigned pleadings and correspondence directly to the Assist Team’s e-mail address
in contravention of court procedures. Consequently, on February 3, 2017, the Magistrate Judge
ordered the Clerk’s Office to refuse “further filings from Plaintiff unless received through the mail
or electronically filed through ECF.” Doc. 10. Plaintiff, however, continues to submit numerous
pleadings and correspondence to the Assist Team’s e-mail address. In the past two months, he has
sent over seven submissions. See Doc. 11 (compiling e-mails received since February 3, 2017).
On April 2, 2017, Plaintiff filed a new, unsigned complaint with a motion to appoint
counsel through the emergency filing e-mail address. See Case No. 3:17-CV-0932. In essence,
Plaintiff reiterates the allegations in the January complaint and seeks the appointment of counsel.
Since the new action arises from the same course of events as the January 2017 complaint, the new
case was transferred to the undersigned and consolidated with Case No. 3:17-CV-0080.
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A review of the Public Access to Courts Electronic Records (PACER) reflects Plaintiff
recently filed a similar complaint with a motion to appoint counsel in the Eastern District of
Kentucky. See In re Semiani, No. 5:17-CV-00142 (E.D. Ky. Mar. 21, 2017) (pending screening).
As in this case, the complaint and motion were submitted for filing through the ECF emergency
filing e-mail address. Plaintiff also tendered through e-mail a petition seeking access to the court
for justice, which repeats his assertions. See Semiani v. United States, No. 5:16-CV-0160 (E.D.
Ky. Feb. 18, 2017).
The plaintiff has been advised that filings cannot be submitted to this and other courts by
e-mail and that he must sign all of his pleadings. See Semiani v. United States, No. 16-5765 (6th
Cir. Aug. 2, 2016) (dismissing appeal in No. 5:16-CV-0160 for failure to submit a signed notice
of appeal and noting that Plaintiff had been repeatedly notified that pleadings could not be filed by
e-mail); Semiani v. United States, No. 5:16-CV-0160 (E.D. Ky. 2016) (numerous docket entries
and notices from clerks notifying the plaintiff that filings must contain an original signature and
cannot be filed through e-mail).
III.

Sanctions Warning
As Plaintiff has filed over a dozen actions in seven district courts nationwide, the court

determines that Plaintiff is a serial litigator. The Report forewarns Plaintiff that continued filing
of frivolous lawsuits will result in sanctions. Given the nature and frivolity of his lawsuit, the court
deems it appropriate to reiterate the warning regarding the future imposition of sanctions. If
Plaintiff files any more lawsuits in violation of this court order, he will be sanctioned monetarily,
and the court will impose any other sanctions it deems fair and just.

Order – Page 3

IV.

Conclusion
Having reviewed the Complaint, record, Report, and applicable law, the court determines

the findings and conclusions of the magistrate judge recommending the dismissal of Case No.
3:17-CV-0080 are correct, and accepts them as those of the court. The court further finds that
Case No. 3:17-CV-0932 is duplicative of the claims Plaintiff raised in Case No. 3:17-CV-0080
and the 2016 actions noted above. Even under the most deferential review, Plaintiff reasserts
claims that allege essentially the same facts, arise from substantially the same events, and involve
the same defendants as the claims he raised in Case No. 3:17-CV-0080 and unsuccessfully litigated
in the 2016 actions. Accordingly, the court dismisses the consolidated action with prejudice as
frivolous and malicious. See Roberson v. Breen, 444 F. App’x. 841, 842 (5th Cir. 2011) (per
curiam) (“An action may be dismissed as malicious and frivolous if it duplicates claims raised by
the same plaintiff in previous or pending litigation.”) (citing Pittman v. Moore, 980 F.2d 994, 994995 (5th Cir. 1993) (relating to pending litigation); and Wilson v. Lynaugh, 878 F.2d 846, 850 (5th
Cir. 1989) (addressing dismissed litigation)); 28 U.S.C. § 1915(e)(2)(b) (providing for sua sponte
dismissal of an in forma pauperis complaint if it (1) is frivolous or malicious, (2) fails to state a
claim upon which relief may be granted, or (3) seeks monetary relief against a defendant who is
immune from such relief).
Plaintiff’s motion to appoint counsel is denied. Doc. 3 in No. 3:17-CV-0932. A court may
appoint counsel for a plaintiff proceeding in forma pauperis only if the case presents “‘exceptional
circumstances.’” 28 U.S.C. § 1915(e)(1); see Castro Romero v. Becken, 256 F.3d 349, 353-354
(5th Cir. 2001) (in forma pauperis plaintiff is not entitled to court-appointed counsel as a matter
of law.) Here, Plaintiff has wholly failed to make that showing especially in light of the
duplicative, frivolous nature of his pleadings.
Order – Page 4

In addition, because Plaintiff persists in filing duplicative lawsuits and disregarding court
filing procedures, he is instructed that he may not refile this complaint or any other civil action
in this court without either paying the applicable filing fee or filing an appropriate motion for leave
to file accompanied by a proposed complaint and a motion for leave to proceed in forma pauperis.
The Clerk of Court is ordered to docket – for administrative purposes only – any future civil action
by Plaintiff that does not comply with these requirements and immediately close the case after
placing a copy of the sanction order in the file, with no other action taken on non-compliant
submissions. For purposes of this sanction, “filing” includes civil actions, documents, claims, or
requests received by the court in paper or via transfer, removal, or submission to the court’s
emergency filing account. The Clerk of Court is ordered to disregard any further attempts by the
Plaintiff to submit documents, claims, or requests for relief e-mailed to individual court staff or
teams.
The court prospectively certifies that any appeal of this action would not be taken in good
faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a)(3). In support of this certification, the court
incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir.
1997). The court concludes that any appeal of this action would present no legal point of arguable
merit and would, therefore, be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In
the event of an appeal, Plaintiff may challenge this certification by filing a separate motion to
proceed in forma pauperis on appeal with the clerk of the United States Court of Appeals for the
Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. 24(a)(5).

Order – Page 5

It is so ordered this 19th day of April, 2017.

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Sam A. Lindsay
United States District Judge

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