United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER DISMISSING CASE
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
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. 6.
Rossman has failed to file anything with this Court within
that timeframe. For the reasons explained, Rossman's case
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 FPS systems. Doc. 1
at ¶¶ 5, 41-42. Consequently, Rossmann
claims that he is unable to obtain a passport, travel, or go
to any federal facility protected by the FPS 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. Doc. 1 at ¶¶ 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 ¶ 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.
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 cannot afford the costs of a
lawsuit. Id. However, federal courts are empowered
to screen unwarranted suits. The Supreme Court articulated
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 frivolous 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 frivolous 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." Mayard v. Tallarico, No. CTV. 13-661
DWF/JJK, 2013 WL 2470243, at *2 (D. Minn. 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).
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
al., 2:17-cv-04332-ESW; Rossmann v. Duke et al.
17-cv-02839-GPG: Rossmann v. Duke et al..
5:17-cv-00467-KKC; Rossmann v. Duke et al..
5:17-cv-01274-HE; Rossmann v. Duke et al..
4:17-mc-03124; Rossmann v. Duke et al.
2:17-cv-01227-CW; Rossmann v. Duke et al..
l:17-cv-00199-SWS. The primary difference between each of
these filings is that Rossmann 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.
has empowered the federal courts to dismiss frivolous 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 frivolous 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
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.
reasons stated above, it is hereby
that Rossmann's complaint is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) as a ...