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Salem v. State

United States District Court, D. Kansas

March 26, 2015

SKYLAR HESSON SALEM, Plaintiff,
v.
THE STATE OF KANSAS, Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
COMPASS, SOUTHWEST CASE, and THE STATE OF KANSAS, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
GRAY COUNTY KANSAS SHERIFF and THE STATE OF KANSAS, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
GRAY COUNTY SHERIFF DEPARTMENT, JEFF SHARP, and THE STATE OF KANSAS, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
ERIC HARMAN and THE STATE OF KANSAS, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
JOSEPH SALEM and H.E. SALEM CORPORATION, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
SHAWNEE POLICE DEPARTMENT and JOHNSON COUNTY SHERRIFF DEPARTMENT, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
MEADE COUNTY JAIL and THE STATE OF KANSAS, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
TIFFONY GASSELING, THE STATE OF KANSAS, and KDOC, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
JOSEPH E. SALEM, and H.E. SALEM CORPORATION, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
FRED BALTHAZOR, THE STATE OF KANSAS, KDOC, R.J. COOK, and TIFFONY GASSELING, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
KANSAS CITY, MISSOURI, POLICE DEPARTMENT, Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
WALMART, Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
JOSEPH SALEM and H.E. SALEM CORPORATION, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
JIM KRAMER and THE STATE OF KANSAS, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
DORALYN DAY and STATE OF MISSOURI, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
STACY PYLE and NATHAN PYLE, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
JUDITH WALDRON, Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
VALLEY VIEW BANK and BANCABILITY, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
McDONALDS, Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
SHAWNEE POLICE DEPARTMENT, Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
CHEX SYSTEMS, INC. Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
CAPITAL ONE, Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
VALLEY VIEW BANK and BANCABILITY, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
JOSEPH SALEM and H.E. SALEM CORPORATION, Defendants. SKYLAR HESSON SALEM, Plaintiff,
v.
KANSAS BUREAU OF INVESTIGATION, Defendant. SKYLAR HESSON SALEM, Plaintiff,
v.
MERRIAM POLICE DEPARTMENT, Defendant.

REPORT AND RECOMMENDATION

JAMES P. O'HARA, Magistrate Judge.

The pro se plaintiff, Skylar Hesson Salem, has filed twenty-seven cases (captioned above) in just the first three months of this year. The form complaints contain very little information and largely consist of nothing more than single words separated by commas. The defendants in many of the cases overlap. In order to gain some clarity into plaintiff's alleged harms and discuss with plaintiff the possibility of consolidating his complaints, the undersigned U.S. Magistrate Judge, James P. O'Hara, conducted a status conference on March 3, 2015. Despite the extraordinary steps taken by the undersigned to procure plaintiff's presence at the conference, plaintiff did not attend. Plaintiff's claims therefore remain unintelligible to the court and appear to lack a basis for relief.

In the eighteen cases pending on the date of the status conference, the undersigned entered an order directing plaintiff to show cause by March 18, 2015, "why the cases should not be dismissed with prejudice to refiling any case based on the same set of circumstances, based on plaintiff's lack of prosecution and participation."[1] Plaintiff did not respond to the show cause order. During the response period, however, plaintiff did file nine additional cases that suffer from the same defects as the original eighteen cases. As discussed below, the undersigned recommends that the eighteen original cases be dismissed for lack of prosecution and failure to respond to the show cause order, that the subsequent nine cases be dismissed under 28 U.S.C. § 1915(e)(2) for (among other things) failing to state a claim upon which relief may be granted, and that plaintiff be directed to show cause why he should not be prohibited from filing any additional cases without advance permission of the court.

I. Failure to Prosecute or Respond to Show Cause Order (Eighteen Cases)

The undersigned's order to show cause entered on March 3, 2015, in case numbers 15-2209, 15-2285, 15-2289, 15-2307, 15-2309, 15-2310, 15-2311, 15-2312, 15-2313, 15-2320, 15-2321, 15-2588, 15-2590, 15-2607, 15-2608, 15-2609, 15-2622, and 15-2627, set forth in detail the steps taken by the court to ensure plaintiff's participation in those cases (including the issuance of orders and telephoning plaintiff's residence multiple times). It also discussed the undersigned's explicit warning to plaintiff that his failure to appear for the scheduled status conference could result in dismissal of his cases. Finally, it noted that plaintiff failed to respond to a motion to consolidate filed in Case No. 15-2209. Based on "plaintiff's failure to attend the status conference despite the court's multiple warnings and reminders, plaintiff's failure to otherwise contact the court to discuss case scheduling, and plaintiff's failure to respond to the single defense motion that is now ripe, " the undersigned ordered plaintiff to show cause, in writing, by March 18, 2015, why these cases should not be dismissed with prejudice to refiling.

The court mailed the show cause order to plaintiff via certified mail, and the certified mail receipt was returned as delivered on March 5, 2015.[2] Plaintiff has not filed a response to the show cause order. Nor has plaintiff taken any further action to prosecute these cases. For example, plaintiff has failed to respond to the motion to dismiss filed in Case No. 15-2209.[3] Rule 41(b) of the Federal Rules of Civil Procedure permits the court to dismiss an action for failure to prosecute.[4] The undersigned recommends that the presiding U.S. District Judge, Carlos Murguia, dismiss with prejudice the first eighteen cases filed based on plaintiff's failure to show cause why the cases should not be dismissed for failure to prosecute.

II. Screening Under 28 U.S.C. § 1915(e)(2) (Nine Cases)

In the week following the entry of the show cause order, plaintiff filed nine new cases with the court, which were assigned case numbers 15-2637, 15-2638, 15-2641, 15-2644, 15-2645, 15-2647, 15-2648, 15-2653, 15-2654. The court granted plaintiff leave to proceed with each of these cases without prepayment of fees pursuant to 28 U.S.C. § 1915.[5]

When a party is proceeding in forma pauperis, § 1915(e) requires the court to screen the party's complaint. The court must dismiss the case if the court determines that the action (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant who is immune from suit.[6] The purpose of § 1915(e) is to "discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11."[7] The screening procedure set out in § 1915(e) applies to all litigants, prisoners and non-prisoners alike.[8]

In applying § 1915(e) to the pleadings of a pro se litigant, the court must liberally construe the pleadings and hold them to a less stringent standard than formal pleadings drafted by attorneys.[9] This does not mean, however, that the court must become an advocate for the pro se plaintiff.[10] "To state a claim, the plaintiff must provide enough facts to state a claim to relief that is plausible on its face.'"[11] The "court need not accept allegations that state only legal conclusions."[12] Dismissal is appropriate when "it is obvious that the plaintiff cannot prevail on the facts []he has alleged and it would be futile to give [him] an opportunity to amend."[13] Such is the case when, for example, a plaintiff cannot assert a basis for subject matter jurisdiction.[14]

Plaintiff's form complaints are difficult to comprehend and fail to state legal claims. In addition, some fail to assert a basis for subject matter jurisdiction. The court will address each briefly.

Salem v. Valley View Bank, et al., Case Nos. 15-2637 and 15-2647. Plaintiff sues Valley View Bank and Bancability in two of the recently filed nine cases. In Case No. 15-2637, plaintiff's statement of claim reads: "On and before March 1, 2015 including Chex Systems, Gray County Sheriff, Valley View Bank tampered with my account checking and atm/debit card, slander, harm, libel, internet, entries."[15] In Case No. 15-2647, plaintiff's statement of claim reads: "Telephone Tyler, federal lawsuit Visa, tampering, chemicals, harm, libel, slander."[16] It is unclear whether these complaints arise from the same incident. At no place in either complaint does plaintiff provide facts to clarify his claim or support his legal conclusions.

The undersigned recommends that plaintiff's complaints be dismissed for failure to state a claim. Plaintiff provides no description of the facts supporting his claims. Rather, plaintiff makes only "vague, rambling" assertions without providing any detail from which defendants might frame an answer.[17] His "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based."[18] In addition, plaintiff has not demonstrated that the court has subject matter jurisdiction over his claims. Plaintiff's complaints cannot be read to allege a violation of federal law, so the court assumes he is attempting to proceed under the court's diversity jurisdiction.[19] Plaintiff cannot establish a basis of diversity jurisdiction, however, because he alleges that both he and defendants are citizens of Kansas. For these reasons, the undersigned finds that it would be futile to give plaintiff leave to amend his complaints.

Salem v. McDonalds, Case No. 15-2638. Plaintiff's statement of claim reads: "March 2 2015 and before McDonalds has used tactics involving price game, chemicals, contamination, visa, netspend, gillum, employee, slander, harm."[20] In another section of his complaint, plaintiff adds that McDonalds "overcharged items" and had a "dirty ...


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