Petition for Writ of Certiorari — Asia Johnson, Petitioner v. Rothschild

Date Filed: 11/06/2018

Case: 18-2349 Document: 003113079342 Page: 1

NOT PRECEDENTIAL

ALD-012

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 18-2349

ASIA JOHNSON,

Appellant

hy

ROTHSCHILD

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2-18-cv-00606)

District Judge: Honorable Mark R. Hornak

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 18, 2018

Before: MCKEE, SHWARTZ, and BIBAS, Circuit Judges

(Opinion filed: November 6, 2018)

OPINION*

PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Case: 18-2349 Document: 003113079342 Page: 2

Date Filed: 11/06/2018

Asia Johnson appeals the District Court's dismissal of her civil action and denying

her application to proceed in forma pauperis as moot. For the reasons below, we will

summarily affirm the District Court's order with a modification.

Johnson initiated the lawsuit by filing a motion for leave to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915, together with a complaint naming "Rothschild" as

the lone defendant. As a resident of Pennsylvania, Johnson asserted federal court

diversity of citizenship jurisdiction under 28 U.S.C. § 1332, identifying Rothschild as a

resident of the United Kingdom. In the complaint, Johnson alleged that "Pittsburgh air is

the most polluted in the nation our climate is based on our behavior and how the

Rothschild control our weather and what released in our air" [sic]. (Complaint, ¶111

Statement of Claim.) As relief, Johnson requested "clean air better control on our

climate." (Id., ¶TV Relief.)'

The assigned Magistrate Judge issued a report and recommendation to dismiss the

action under § 1915(e)(2)(B) of the in forma pauperis statute. The Magistrate Judge

determined that Johnson's claims and the relief embraced an inarguable legal conclusion,

presented fanciful factual allegations, and was based on a "fantastic or delusional" factual

scenario. (See May 14, 2018 Report and Recommendation at 3, citing Neitzke v.

Williams, 490 U.S. 319, 327-28 (1989).) Thus, the Magistrate Judge concluded that the

As an exhibit to the complaint, Johnson attached a letter and a certificate dated April 25,

2018, written on behalf of President Donald J. Trump, concerning Johnson's inclusion in

the Republican Presidential Honor Roll.

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Date Filed: 11/06/2018

complaint was frivolous within the meaning of § 1915(e)(2)(B), and that granting leave to

amend the complaint would be futile. The Magistrate Judge further recommended

denying Johnson's in forma pauperis application as moot. Johnson filed objections. The

District Court considered Johnson's objections but adopted the report and

recommendation, dismissed the action, and denied the in forma pauperis motion as moot.

Johnson appeals. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

We may affirm for any reason supported by the record. $çç Brightwell v. Lehman, 637

F.3d 187, 191 (3d Cir. 2011).

We first address the District Court's disposition of Johnson's in forma pauperis

motion. A district court's determination of whether to grant a motion to proceed in forma

pauperis should focus on the applicant's financial eligibility. See Sinwell v. Shapp,

536 F.2d 15, 19 (3d Cir. 1976). An analysis of the complaint under 28 U.S.C.

§ 1915(e)(2)(B) is appropriate only after a litigant is granted leave to proceed pursuant to

the in forma pauperis statute. See Deutsch v. United States, 67 F.3d 1080, 1084 n.5 (3d

Cir. 1995) (discussing procedure of determining in forma pauperis status, followed by

consideration of whether a complaint is "frivolous or malicious" under former

§ 1915(d)). Here, the District Court erred in denying Johnson's in forma pauperis motion

as moot. Instead, the District Court should have addressed the motion before subjecting

the complaint to the screening provisions of the in forma pauperis statute. Johnson

indicated in her motion filed in the District Court that she had income of $653 per month

Case: 18-2349 Document: 003113079342 Page: 4

Date Filed: 11/06/2018

and $200 in cash or savings, while her expenses totaled approximately $536 per month.

A litigant need not be "absolutely destitute" or contribute his or her "last dollar" in order

to qualify for in forma pauperis status. See Adkins v. E.I. DuPont de Nemours & Co.,

335 U.S. 331, 339 (1948). On this record, we conclude that Johnson was financially

eligible to proceed in forma pauperis when she filed her complaint.

We now turn to the District Court's analysis of Johnson's complaint. We exercise

plenary review over the District Court's dismissal of the case as frivolous or legally

without basis. See Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). We agree with

the District Court's assessment of the allegations contained in Johnson's complaint. See

Neitzke, 490 U.S. at 325 (a complaint is frivolous if it "lacks an arguable basis either in

law or in fact"). Moreover, while generally a plaintiff should be given leave to amend a

complaint subject to dismissal, we discern no error in the District Court's determination

here that allowing Johnson leave to amend would have been futile. See Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm

the District Court's judgment but direct that it modify its order to grant Johnson's

application to proceed in forma pauperis. See 3d Cir. LAR 27.4; I.O.P. 10.6.

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Case: 18-2349 Document: 003113079347 Page: 1

ALD-012

Date Filed: 11/06/2018

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 18-2349

ASIA JOHNSON,

Appellant

ROTHSCHILD

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2-18-cv-00606)

District Judge: Honorable Mark R. Hornak

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 18, 2018

Before: MCKEE, SHWARTZ, and BIBAS, Circuit Judges

JUDGMENT

This cause came to be considered on the record from the United States District

Court for the Western District of Pennsylvania and was submitted for possible dismissal

pursuant to 28 U.S.C. § 1915(e)(2)(B) and for possible summary action pursuant to Third

Circuit LAR 27.4 and I.O.P. 10.6 on October 18, 2018. On consideration whereof, it is

now hereby

ORDERED and ADJUDGED by this Court that the judgment of the District Court

entered May 30, 2018 be and the same hereby is affirmed with a modification. All of the

above in accordance with the opinion of this Court.

Case: 18-2349 Document: 003113079347 Page: 2

Date Filed: 11/06/2018

ATTEST:

sl Patricia S. Dodszuweit

Clerk

DATED: November 6, 2018

Case 2:18-cv-00606-MRH-MPK Document 2 Filed 0/14/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ASIA JOHNSON,

Plaintiff,

Civil Action No. 18-606

Judge Mark R. Hornak

Chief Magistrate Judge Maureen P. Kelly

V.

ROTHSCH ILD.

Re: ECF No. I

Defendant.

REPORT AND RECOMMENDATION

I.

RECOMMENDATION

Presently before the Court Is a Motion for Leave to Proceed informa pauperis filed by

Plaintiff Asia Johnson. ECF No. l For the reasons that follow, it is respectfully recommended

that this case be dismissed with prejudice and that the Motion be denied as moot.

H. REPORT

The in forma pauperis statute, 28 U.S.C. § 1915, "is designed to ensure that indigent

litigants have meaningful access to the federal courts." .Douris v. Middletown T., 293 F. App'x

130, 131 (3d Cir. 2008) (quoting Neitzkc v. Williams, 490 U.S. 319, 324 (1989)).

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. Neitzke, 490 U.S. at 324; Deutsch v, United States, 67 F.3d 1080,

1084 (3d Cir.1995).

Accordingly, the Court must take two determinations when reviewing an informapauperis

application: (1) whether Plaintiff is eligible for pauper status under 28 U.S.C. § I915(e(2)(A); and

Case 2:18-cv-00606-MRH-MPK Document 2 Filed 05/14/18 Page 2 of 5

(2) the Court must review the complaint and determine whether it is frivolous, malicious, fails to

state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune

from such relief pursuant to 28 U.S.C. § 1915(e)(2)(B).

Plaintiff has tiled 13 cases in this Court in the last two months in which she has requested

informa pauperis status, one of which appears to have been against the same Defendant as in the

instant case.' In at least three of these cases, Civil Action Nos. 18-495, 18-610 and 18-611, the

Court, having screened Plaintiff's pro se Complaints pursuant to 28 U.S.C. § 1915(e)(2)(B),

dismissed her requests for in forina pauperis status because of her frivolous Complaints which

could not be amended. It is recommended that the Court do the same with regard to the instant

matter.

Section 1915 provides:

Notwithstanding any filing fee, or any portion thereof; that may have been

paid, the court shall dismiss the case at any time if the court determines

that—

the allegation of poverty is untrue; or

the action or appeal—

is frivolous or malicious;

fails to state a claim on which relief may be granted; or

seeks monetary relief against a defendant who is

immune from such relief'.

28 U.S.C. § 1915 (e)(2).

The United States Supreme Court in Neitzke held that dismissal based on 28 U.S.C.

§ 1915(e)(2) is appropriate when the action is "based on an indisputably meriticss legal theory"

andwhen it posits "factual contentions [that] are clearly baseless." 490 U.S. at 327. The Supreme

Court specifically stated that 28 U.S.C. § 1915(e)(2)(B)'s term "frivolous," when applied to a

Johnson v. Rothschild. Civil Action No. 18-606

2

Case 2:18-cv-00606-MRH-MPK Document 2 Filed 05/14/18 Page 3 of 5

Complaint, "embraces not only the inarguable legal conclusion, but also the fanciful factual

allegation," such that a claim is frivolous within the meaning of Section 191 5(e)(2)(B) if it "lacks

an arguable basis either in law or in fact[.]" Id. at 325. Plaintiffs Complaint, herein, thus to present

any sort of cognizable legal claim nor any relief which this Court could grant.

Plaintiff indicates that the basis for jurisdiction is a diversity of citizenship, as she is a

resident of Pennsylvania and Defendant Rothschild is a resident of the United Kingdom and the

amount in controversy exceeds $75,000. ECF No. 1-1. At first blush these statements would seem

to support this Court's jurisdiction; however, a review of Plaintiffs "Statement of Claim" section,

quickly illustrates how this Court lacks jurisdiction.

Plaintiffs Statement of Claim reads as follows:

Pittsburgh air is the most polluted in the nation our climate is based on our

behavior and how the Rothschild control our weather and what released in

our air

ECF No. 1-1 at 4.

With respect to the relief sought, Plaintiff writes:

Clean air better control on our climate.

Id.

Based on the above, the Court finds that this claim and the relief sought by Plaintiff in the

instant matter "embrace not only [an] inarguable legal conclusion, but also [present] fanciful

factual allegation[s]," such that her claim is frivolous within the meaning of Section 191 5(e)(2)(B).

As noted in Neitzke, this Cowl is also dismissing this claim because it is based on a "fantastic or

delusional" factual scenario. Id. at 327-28; see also Wilson v. Rackmill, 878 F.2d 772, 774 (3d

Cir. 1989).

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Case 2:18-cv-00606-MRH-MPK Document 2 Filed 05/14/18 Page 4 of 5

Generally, before dismissing a claim for failing the screening, the Court must grant a

plaintiff leave to amend the complaint, unless it would be inequitable, utile or prejudiced. Hughes

v. Allegheny County Airport Authority, Civ. A. No. 11-1006 (W.D Pa. Jan. 13, 2012), 2012 WL

464700 at * 2 (citing Grayson v. Mayview Slate Hosp., 293 F.3d 103, 114 (3d Cir. 2002)).

Ifa prose plaintiff can cure the factual allegations in order to state a claim, this Court must

give her an opportunity to do so. However, if an amendment cannot cure the deficiencies, the

Court may dismiss the Complaint without leave to amend. hi

Based on the foregoing legal authority and given the statements set forth in Plaintiffs

Complaint, it is recommended that this Court dismiss this action and deny the info?-ma pauperis

request as moot. It is further recommended that Plaintiff not be granted leave to amend this

Complaint as such would be futile.

In accordance with the Magistrate Judges Act. 28 U.S.C. § 636(h)(1), and Local Rule

72.D.2, the parties are permitted to file written objections in accordance with the schedule

established in the docket entry reflecting the filing of this Report and Recommendation. Failure

to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193

n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within

fourteen (14) days thereafter in accordance with Local Civil Rule 72.D2.

Dated: May 14, 2018

Respectfully submitted,

MA EE .KFLY.

CHIEF UNITED STATES MAGIST ATE JUDGE

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Case 2:18-cv-00606-MRH-MPK Document 2 Filed 05/14/18 Page 5 of 5

cc:

The Honorable Mark R. Hornak

United States District Judge

Asia Johnson

1 807 West Street

Munhall,PA 15120

Case 2:18-cv-00606-MRH-MPK Document 4 Piled 05/30/18 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ASIA JOHNSON,

Plaintiff,

Civil Action No. 18-606

Judge Mark R. Hornak

Chief Magistrate Judge Maureen P. Kelly

V.

ROTHSCHILD,

Defendant.

ORDER

AND NOW, this 30th day of May, 2018, after Plaintiff Asia Johnson filed a Motion for

Leave to Proceed in forma pauperis in the above-captioned case, ECF No. I, after a Report and

Recommendation was filed by the Chief United States Magistrate Judge, ECF No. 2, and

Objections thereto having by filed by the Plaintiff and considered by the Court, and upon

independent review of the record, and upon consideration of the Magistrate Judge's Report and

Recommendation, which is adopted as the opinion of this Court,

IT IS HEREBY ORDERED that this action is DISMISSED with prejudice and the

Motion for Leave to Proceed infor,napau

is DENIED as moot.

Mark R. Hornak

United States District Judge

cc:

The Honorable Maureen P. Kelly

Chief United States Magistrate Judge

Asia Johnson

1807 West Street

Munhall, PA 15120

All counsel of record via CM-ECF