Pennsylvania Cases April 26, 2022: Hill v. Perry

Case Description

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BRANN, C.J.

REPORT & RECOMMENDATION

William I. Arbuckle U.S. Magistrate Judge

I. INTRODUCTION

On April 18, 2022, Jeffrey D. Hill (“Plaintiff”) lodged this case, in which he alleges that Scott Perry (“Defendant”) should not be permitted to run for congress and should be removed from the May 2022 primary ballot. In his pleading, Plaintiff asserts a federal quo warranto claim and a claim for mandamus relief. Plaintiff also attempts to challenge Defendant's nomination petition under state law.

To the extent that the 2011 sanction is still enforceable, I DECLINE to certify this action for filing because Plaintiff lacks standing to bring a federal quo warranto claim, and because this Court does not have the authority to grant the mandamus relief Plaintiff requests. In the alternative, it is RECOMMENDED that:

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(1) Plaintiff's IFP motion (Doc. 2) be granted and this case should be dismissed without leave to amend pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) (failure to state a claim on which relief may be granted).

(2) If appropriate, refer this matter to me to conduct appropriate sanction proceedings and to recommend an appropriate sanction that would prohibit Plaintiff from filing future federal quo warranto claims and any future mandamus claims about elections without counsel or payment of the full civil filing fee, or the in alternative, simply close this case.

II. BACKGROUND & PROCEDURAL HISTORY

A. PLAINTIFF'S LITIGATION HISTORY IN THE MIDDLE DISTRICT OF PENNSYLVANIA

It appears that Plaintiff initiated his first civil action in this Court in 1988. All cases were filed pro se and Plaintiff sought leave to proceed in forma pauperis . By September 1996, Plaintiff had filed approximately 42 separate actions in the Middle District of Pennsylvania. Hill v. Gates , 940 F.Supp. 108, 109 (M.D. Pa. 1996). On September 3, 1996, United States District Judge James McClure issued an Order directing Plaintiff to show cause as to why sanctions should not be imposed. Id. In that Order, the court “indicated that it would consider as an appropriate sanction the issuance of an order rendering Hill subject to the same restrictions with respect to litigation under § 1915 as are applied for prisoners.” Id. On September 18, 1996, which ‘sanction[ed] Hill by requiring him to receive certification from a magistrate judge prior to filing a future civil action within the Middle district of Pennsylvania' - fails to comport with our direction that it ‘impose more tailored sanctions against him.'”).

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Judge McClure imposed a series of restrictions (explained in 51 paragraphs at the conclusion of his 1996 order) on Plaintiff's ability to file cases in this district, including (but not limited to):

(1) requiring Plaintiff to pay an initial partial filing fee of $5.00 and to deposit $5.00 per month until the full filing fee was paid in each civil action filed (failure to pay, and keep making payments would result in dismissal), id at 113-114; and

(2) barring Plaintiff from bringing any further civil actions if he has “on 3 or more occasions after the date of [the September 18, 1996 order], brought an action or appeal in a court of the United States that was dismissed pursuant to this order on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. at 114.

In April 2008, Plaintiff ran afoul of the 1996 sanction by filing his third frivolous lawsuit. On April 4, 2008, Judge McClure issued an order that states as follows:

4. Pursuant to our September 18, 1996 order in M.D. Pa. Civ. No. 96-1572 and our authority to impose sanctions under Rule 11 of the Federal Rules of Civil Procedure, plaintiff's complaint is dismissed based on his filing at least three civil actions in the courts of the United States since the date of that order that were dismissed as frivolous, malicious, or for failure to state a claim. Alternatively, the complaint is dismissed on the merits under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim.

5. Plaintiff is ordered not to bring any civil action in the Middle District of Pennsylvania. We warn plaintiff that a failure to comply with this court order may result in contempt proceedings being brought against plaintiff.

Hill v. Carpenter , No. 4:08-CV-591, 2008 WL 936927 at *4 (M.D. Pa. Apr. 4, 2008).

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Plaintiff appealed Judge McClure's April 2008 Order to the Third Circuit Court of Appeals. On April 22, 2009, the Third Circuit affirmed Judge McClure's dismissal of Plaintiff's complaint, but vacated the imposition of sanction. Hill v. Carpenter , 323 Fed.Appx. 167, 168 (3d Cir. 2009). In doing so the Circuit explained:

The District Court clearly was within its discretion to impose sanctions against Hill, as his filings in this case contained wholly inappropriate language and showed a complete lack of respect for the Court and the judicial process. Moreover, the instant case is but one of many non-meritorious actions Hill has filed over the years, and it is not the first instance in which Hill has used disrespectful and abusive language. Nonetheless, there is no indication that the Court gave Hill adequate notice and an opportunity to respond before imposing sanctions. See Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993) (“If the circumstances warrant the imposition of an injunction [restricting a litigant's ability to file future law suits], the District Court must give notice to the litigant to show cause why the proposed injunctive relief should not issue.”); see also In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982) (“[The litigant] should have been provided with an opportunity to oppose the court's order [enjoining him from filing future cases] before it was instituted.”) The imposed sanctions, which bar Hill from ever bringing another lawsuit in the district, were also overly broad. See In re Packer Ave. Assocs., 884 F.2d 745, 748 (3d Cir. 1989) (“There simply is no support in the law for permitting an injunction prohibiting a litigant from ever filing a document in federal court.”); see also Brow, 994 F.2d at 1038 (“[T]he scope of the injunctive order must be narrowly tailored to fit the particular circumstances of the case before the District Court.”). Thus, we must vacate the Court's injunction barring Hill from bringing any future civil suit in the Middle District of Pennsylvania.

In lieu of the vacated injunction, we recommend that the District Court-after providing notice and an opportunity to respond-consider adopting an order requiring Hill to obtain certification from a United States Magistrate Judge before bringing any future action in the Middle District of Pennsylvania. Such an approach has been endorsed by Courts of Appeals, see, e.g., Baum v. Blue Moon Ventures, LLC,

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513 F.3d 181, 186-94 (5th Cir. 2008) (upholding an injunction preventing an abusive litigant from filing claims in any federal district court, bankruptcy court, or agency without court permission); Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir. 1996) (“[I]t is permissible to require one who has abused the legal process to make a showing that a tendered lawsuit is not frivolous or vexatious before permitting it to be filed.”); In re Packer Ave. Assoc., 884 F.2d at 748 (requiring a litigant to obtain leave of the district court before filing any action relating to a particular bankruptcy case); Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990) (“[D]istrict courts in this circuit may issue an injunction to require litigants to obtain the approval of the court before filing further complaints.”), and it would prevent Hill from pursuing frivolous actions without denying him access to the courts.

In addition, it may be appropriate to impose contempt sanctions against Hill for his blatant violation of the order prohibiting him “from filing any document which is replete with offensive, derogatory material.” Order at 10, Hill v. Gates, 940 F.Supp. 108 (M.D. Pa. 1996). Hill's complaint and appellate filings are brimming with vile and outrageous remarks that demean the judiciary and warrant a strong rebuke.

Id. at 171-172.

In December of 2010, Plaintiff's case was reassigned to United States District Judge Yvette Kane, following the death of Judge McClure. On January 6, 2011, Judge Kane issued an order directing Plaintiff to show cause why sanctions (in the form of requiring Plaintiff to obtain certification from a Magistrate Judge before filing any new civil case) should not be imposed. Order to Show Cause, Hill v. Carpenter , No. 4:08-CV-591 (M.D. Pa. Jan. 6, 2011), ECF No. 16. On January 19, 2011, Plaintiff filed a response. Response, Hill v. Carpenter , No. 4:08-CV-591 (M.D. Pa. Jan. 19, 2011), ECF No. 17. On February 16, 2011, Judge Kane issued an order imposing a sanction that Plaintiff be “required to obtain certification from a

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United States Magistrate Judge prior to filing a future civil action within the Middle District of Pennsylvania.” Hill v. Carpenter , No. 4:08-CV-591, 2011 WL 676810 at *2 (M.D. Pa. Feb 16, 2011). In doing so, Judge Kane explained:

On January 6, 2011, pursuant to the recommendation of the Third Circuit, the Court issued an order on Hill to show cause why he should not be required to obtain certification from a United States Magistrate Judge prior to filing a future civil action within the Middle District of Pennsylvania. (Doc. No. 16 at 4-5); see also Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990) ([D]istrict courts in this circuit may issue an injunction to require litigants to obtain the approval of the court before filing further complaints.”). On January 19, 2011, Hill filed a twenty-one page document, with exhibits, entitled “Response to ‘Judge' Kane's 1-6-11 Rule to Show Cause.” (Doc. No. 17). Although this document is docketed as a response, it is wholly unresponsive to the Court's January 6, 2011 Order, contains vitriolic and unwarranted language, and continues the long pattern of abusive posturing by Hill.

The Court has provided Hill with notice “to show cause why injunctive relief should not issue.” Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987). In this notice, the Court informed Hill that he faced potential sanctions in the form of having to obtain certification from a magistrate judge prior to filing a future civil action within the Middle District of Pennsylvania. (Doc. No. 16 at 4-5). Hill has failed to adequately respond to this notice. Therefore, pursuant to the recommendation of the Third Circuit, the Court will sanction Hill by requiring him to receive certification from a magistrate judge prior to filing a future civil action within the Middle District of Pennsylvania.

Id. at 1-2.

Since that sanction was imposed Plaintiff filed several new cases in the Middle District of Pennsylvania in which he requested leave to proceed in forma pauperis .

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In one such case, filed on March 24, 2015, Plaintiff alleged, in large part, “a conspiracy between municipal officials that resulted in his prosecution and incarceration for 5 ½years on sundry ‘trumped-up' criminal charges, all of which occurred decades ago.” Report & Recommendation, Hill v. Umpstead, No. 4:15-CV-587 (M.D. Pa. Mar. 27, 2015), ECF No. 3. The complaint also concerned a dispute between Plaintiff and the “borough officials related to snow removal over the recent winter months.” Id. On March 27, 2015, United States Magistrate Judge Karoline Mehalchick issued a report explaining that Plaintiff's claims related his criminal convictions (which occurred more than a decade before the complaint was filed) were barred by the applicable statute of limitations, and Plaintiff's claims related to the snow removal were insufficient to support a plausible RICO or civil rights claim. Id. Judge Mehalchick declined to certify Plaintiff's complaint for filing because it was “legally and factually frivolous” and recommended that the complaint be dismissed pursuant to the February 2011 sanction order. Id. On June 25, 2015, United States District Judge Matthew W. Brann adopted Judge Mehalchick's recommendation and dismissed Plaintiff's case. Order, Hill v. Umpstead, No. 4:15-CV-587 (M.D. Pa. June 25, 2015), ECF No. 6. Plaintiff appealed. On February 2, 2016, the Third Circuit Court of Appeals issued an opinion affirming the dismissal of Plaintiff's lawsuit because the claims alleged had no merit. However, in doing so, the Circuit remarked:

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District Courts in this Circuit may issue an injunction to require litigants who have engaged in abusive, groundless, and vexatious litigation to obtain approval of the court before filing further complaints. See Chipps v. U.S. Dist. Ct. for Middle Dist. of Pa. , 882 F.2d 72, 73 (3d Cir. 1989). We have recognized, however, that a pre-filing injunction is an extreme remedy which must be “narrowly tailored and sparingly used.” Abdul-Akbar v. Watson , 901 F.2d 329, 332 (3d Cir. 1990) (quoting In re Packer Ave. Assocs ., 884 F.2d 745, 747 (3d Cir. 1989)). “Narrowly tailored” means fitting the language of the injunction to the particular circumstances of the case. Brow v. Farrelly , 994 F.2d 1027, 1038 (3d Cir. 1993). Thus, we have approved of an order “directing that the litigant not file any section 1983 claims without leave of court and that in seeking leave of court, the litigant certify (1) that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal courts, (2) that he believes the facts alleged in his complaint to be true, and (3) that he knows of no reason to believe his claims are foreclosed by controlling law.” Abdul-Akbar , 901 F.2d at 333. Here, the District Court's pre-filing injunction - which “sanctioned] Hill by requiring him to receive certification from a magistrate judge prior to filing a future civil action within the Middle District of Pennsylvania” - fails to comport with our direction that it “impose more tailored sanctions against him.” Hill , 323 Fed.Appx. at 172. Despite this failure, however, the District Court properly dismissed Hill's complaint because, for the reasons provided below, his claims lack merit.

Mandate of USCA, Hill v. Umpstead, No. 4:15-CV-587 (M.D. Pa. Mar. 14, 2016), ECF No. 9-2.

Recently, Plaintiff filed a case concerning a 2004 tax assessment. Hill v. Lycoming County Government , No. 4:20-CV-2397 (M.D. Pa.). On December 23, 2020, I issued a Report recommending that Plaintiff's complaint in that case not be certified, or in the alternative that it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Id. at ECF No. 7. Plaintiff did not file objections to that Report &

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Recommendation, and it was adopted. The case was then referred back to me to impose a sanction. On March 24, 2021, I issued a Report recommending that Plaintiff be enjoined from filing any further lawsuits specifically about the 2004 Lycoming County tax assessment without counsel or without paying the full civil filing fee. Id. at ECF No. 13. It was adopted by the District Court, and upheld on appeal by the Third Circuit. Id. at ECF Nos. 25, 31-1.

B. PLAINTIFF'S ALLEGATIONS IN THIS CASE

On April 18, 2022, Plaintiff lodged a document titled “Petition for Disqualification from Ballot & Public Office-Writ of Quo Warranto / Prohibition / Mandamus / Error.” (Doc. 1). in this document, Plaintiff alleges:

Pursuant to Amendment 14, section 3-Pa Constitution, Pennsylvania congressman scott Perry from the 10th Congressional District of Pennsylvania (York, Dauphin, & Cumberland counties), should be barred from running for congress in 2022 for violating his solemnly-sworn oath of public office and failing to support the Constitution of the United states having engaged in the multi-pronged effort to overturn the lawful 2020 presidential election that involved the 1-6-21 insurrection incited by Donald Trump and his loyalist cult members that included extremist Freedom caucus member and leader scott Perry which resulted in 140 Capitol police and Metro DC police injured and 5 killed officers.

(Doc. 1, p. 1). Although Plaintiff cites to the Pennsylvania Constitution in the body of his pleading, he attaches a document titled “judicial notice” in which he asks the court to take judicial notice of quotes by sinclair Lewis and samuel Johnson, a federal criminal statute criminalizing treason (18 U.s.C. § 2381), and section 3 of

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the Fourteenth Amendment to the United States Constitution. Section 3 of the Fourteenth Amendment to the United States Constitution provides that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be a vote of two-thirds each House, remove such disability.

In support of his position that Defendant should be barred from running for re-election, Plaintiff alleges:

(1) Scott Perry has been one of Trump's most ardent supporters since 2016 and became more radical as time went by having been elected the head of the Republican House extremist Freedom Caucus (aka Treason Caucus) in 2020.

(2) Scott Perry objected to the ratification of the certified electoral votes of the 2020 presidential election after 1-6-21 insurrection voting against certification.

(3) Perry voted against awarding medals to the Capitol and DC Metro police who defending congresspeople from violent insurrectionists on 1-6-21 risking their lives that resulted in 140 cops injured and 5 cops dead.

(3) Scott Perry refused to cooperate with the 1-6-21 committee investigating the violent insurrections at the Capitol that resulted in injuries to 140 Capitol and DC Metro police and deaths of 5 of them freely choosing to not appear and give testimony or provide requested documents-he was the 1st congressperson asked to provide information on the 1-6-21 insurrection but refused.

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(4) Perry communicated with Trump's chief of staff Mark Meadows on the signal encrypted messaging app about overturning the 2020 presidential election and won't answer 1-6-21 committee is illegitimate as an excuse for refusing to give testimony or provide documents.

(5) Perry falsely claims the 1-6-21 committee is illegitimate as an excuse for refusing to give testimony or provide documents.

(6) Perry strategized and participated with Trump and his minions in numerous schemes to illegally overturn the 2020 legally certified presidential election.

(7) He voted against impeaching Trump twice siding with Putin over Zelensky and Mueller over our CIA.

(8) He played a significant role in advising Trump in ways to subvert the 2020 presidential election, the most egregiously despicable scheme was to have acting U.S. Attorney Gen Jeffrey Rosen filed and replaced by Trump loyalist Jeffrey Clark which was unsuccessful because of the promise of mass resignations throughout the U.S. Dept. of Justice by U.S. Attorneys which would cause a major newsworthy scandal-this eventually produced an avalanche of calls for Perry's resignation and him being labelled as a Domestic Enemy of the U.S. (Perry and Clark intended to send letters to 7 battle ground states starting with Georgia to overturn the 2020 presidential election results illegally by threatening criminal prosecutions of election officials and subjecting them to death threats by Trump's base supporters.)

(9) Scott Perry was 1 of 6 congressional representatives who voted against HR 7276 authorizing investigation into Russian war crimes in Ukraine to Putin's advantage.

(10) As the chairman of the Republican House Freedom Caucus (aka Treason Caucus) Perry ludicrously lied about his willingness to work across the aisle with Biden and the Congressional Democrats for the good of the American people.

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(11) Scott Perry zealously supported Trump's BIG LIE long after it was discredited, and he did the same with Trump's conspiracy theories

(12) Perry wholeheartedly embraced Trump's BIG LIE litigation and still does after 60 out of 61 courts rejected his lawsuits challenging the election outcome for lack of evidence and failure to present any evidence of fraud.

(13) Perry called for delay to certify electoral college count on 1-5-21 for non-existent “irregularities, and he did so after 1-6-21 insurrection at the capitol in DC on the House floor objecting to Pa's election results.

(14) He continued to aggressively amplify Trump's BIG LIE and STOP THE STEAL lie knowing Trump was lying and inciting lies his loyal cult followers while others close to Trump were backing off due to failure to produce any evidence of election fraud.

(15) Scott Perry enthusiastically peddled Trump's BIG LIE, STOP THE STEAL lie, and other conspiracy theories that were factually baseless and misinformation and right-wing propaganda about the 2020 presidential election on social media that furthered Trump's scheme to overturn the election and overthrow the will of the voters and democracy he solemnly swore to protect.

(16) Perry supported lies about this inaccuracy of Dominion Voting machines.

(17) Perry was instrumental in spreading Trump's BIG LIE that the 2020 presidential election, a discredited lie.

(18) Perry played a major role in introducing Trump to Jeffrey Clark to help Trump intimidate Georgia election officials (see of state Brad Raffensperger, et al) to overturn the 2020 election. (Mark Meadows and Lindsay Graham also help Trump pressure Georgia election officials to overturn the election results. Rudy Giuliani and Boris Epshteyn did too with fake electors and falsified electoral college documents) (The 1-6-21 committee

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voted to hold asst A.G Jeffrey Clark in contempt of congress for refusing to comply with their subpoena.

(19) Perry put his political ambitions above the will of voters for months and months and months and the interests of the country selfishly and disgracefully by spreading lies and inciting insurrection.

(20) Numerous political supporters of ultraconservative representative extremist Pa. Congressman Scott Perry and cult members and worshippers of president Donald Trump were indicted for the violent, criminal, seditionist insurrection of 1-621 at the U.S. Capitol in Washington, DC because they had been groomed by Trump and Perry almost a year in advance with lies about non-existent election fraud and a stolen election which they knew were lies.

(21) Pa Attorney General Josh Shapiro warned Perry about violating Amendment 14, Section 3-US Constitution's Disqualification clause pertaining to his acting in concert with Trump and his BIG LIE inciting violent political insurrection to further Trump's effort to undermine the peaceful transfer of power on 1-6-21, defraud the US, subvert the legitimacy of the 2020 election, and damage representative democracy in an attempt to promote fascism. Shapiro called for Perry's resignation.

(22) Pa Governor Tom Wolf called for Perry's resignation for trying to overturn the 2020 election with Trump's BIG LIE labeling Perry a disgrace for putting his personal political ambitions ahead of the will of the voters for months, lying about the integrity of the 2020 election, and violating his solemnly sworn oath to protect the democracy from all enemies domestic and foreign.

(23) The NY Times, Washington Post, Guardian, and major television networks except Fox news propaganda, OANN, and other fascist misinformation sources called for Perry's resignation, especially over the Jeffrey Clark fiasco.

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(Doc. 1, pp. 1-4). I also note that Plaintiff's mailing address is not located in the 10th congressional district, where Defendant seeks to be elected.

With this background, I turn to the appropriate legal standard to be applied.

III. LEGAL STANDARD FOR SCREENING COMPLAINTS FILED BY LITIGANTS PROCEEDING IN FORMA PAUPERIS , GENERALLY

This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis . See Atamian v. Burns , 236 Fed.Appx. 753, 755 (3d Cir. 2007) (“the screening procedures set forth in 28 U.S.C. § 1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners alike.”). Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:

(2) 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 -

(A) the allegation of poverty is untrue; or

(B) the action or appeal--

(i) is frivolous or malicious;

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

(iii) seeks monetary relief against a defendant who is immune from such relief.

In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the

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Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that “pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). “[A] complaint must do more than allege the plaintiff's entitlement to relief.” Id. at 211. It also “has to ‘show' such an entitlement with its facts.” Id.

To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.

Santiago v. Warminster Tp. , 629 F.3d 121, 130 (3d Cir. 2010).

A complaint filed by a pro se litigant is to be liberally construed and ‘“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( quoting

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Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc. , 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are enough to raise the Plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.

IV. ANALYSIS

Plaintiff's pleading in this case boils down to a challenge to Defendant's suitability to appear on the ballot for the Pennsylvania primary in May 2022. Plaintiff alleges that Defendant should be disqualified from holding office because he engaged in insurrection or rebellion against the United States, and/or gave aid and comfort to the enemies of the United States. In the title of his pleading he used the phrases “Writ Quo Warranto” and “Mandamus.” I construe Plaintiff's pleading as alleging a federal quo warranto claim, and requesting mandamus relief pursuant to 28 U.S.C. § 1361. As explained in detail below, Plaintiff lacks standing to bring a federal quo warranto claim, and the Court lacks the authority to grant mandamus relief against a member of the legislative branch under 28 U.S.C. § 1361.

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A. PLAINTIFF'S FEDERAL QUO WARRANTO CLAIM SHOULD BE DISMISSED

A federal writ quo warranto may be sought only by the United States, and not by a private individual, like Plaintiff. As explained in Cizek v. Davis:

Historically, the federal quo warranto action has been available only in connection with proceedings over an individual's right to hold an office or position. See, e.g., Johnson v. Manhattan Ry. Co., 289 U.S. 479, 502 (1933); Newman v. Frizell, 238 U.S. 537 (1915); Barany v. Buller, 670 F.2d 726, 735 (7th Cir. 1982). Moreover, “[i]t appears from case law that in federal court, the writ may be sought only by the United States, and not by private individuals.” Allah v. Robinson, 2007 WL 2220258, at *2 (W.D. Wash. July 31, 2007) (citing Johnson v. Manhattan Ry. Co., 289 U.S. at 502 (1933)); see also Bhambra v. County of Nev., 2010 WL 3258836 (E.D. Cal. 2010); United States v. Machado, 306 F.Supp. 995, 1000 (N.D. Cal. 1969).

Cizek v. Davis , No. 4:10-0185, 2010 WL 5437286, at *3 (M.D. Pa. Nov. 29, 2010), report and recommendation adopted by 2010 WL 5441969 (M.D. Pa. Dec. 28, 2010); Wilkes v. North Carolina , No. 1:19-CV-699, 2019 WL 7039631 at *4 (M.D. N.C. Nov. 19, 2019) (“quo warranto is the prerogative writ by which the Government can call upon any person to show by what warrant he holds public office or exercises a public franchise and, as such, a private individual has no standing to institute such proceeding.” (internal quotations omitted)) report and recommendation adopted by 2019 WL 7037401 (M.D. N.C. Dec. 20, 2019), affirmed by 821 Fed.Appx. 256 (4th Cir. 2020); Wright v. Magill , No. 18-1815, 2019 WL 440554 at *1 (D. Minn. Feb. 4, 2019) (“Quo warranto is an extraordinary proceeding that is only authorized to be brought by the United States.”).

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Accordingly, I find that Plaintiff's federal quo warranto claim should be dismissed because he does not have standing to initiate a federal writ quo warranto action.

B. PLAINTIFF'S CLAIM FOR MANDAMUS RELIEF SHOULD BE DISMISSED

Pursuant to 28 U.S.C. § 1361, “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” “The Third Circuit has held that, “in determining whether an individual qualifies as ‘an officer or employee of the United States of any agency thereof,' 28 U.S.C. § 1361, that ‘Congress, in enacting § 1361 . . . ‘was thinking solely in terms of the executive branch.'” Mendez v. Plaskett , 764 Fed.Appx. 201, 202 (3d Cir. 2019) (quoting Semper , 747 F.3d at 250 and Liberation News Serv. v. Eastland , 426 F.2d 1379, 1384 (2d Cir. 1970)).

In this case, the only named Defendant-Scott Perry-in a member of the United States House of Representatives. He works for the legislative branch, not the executive branch. Therefore, the Court lacks the authority to compel Defendant to withdraw his nomination petition under 28 U.S.C. § 1361. See e.g. , Mendez , 764 Fed.Appx. at 202 (holding that the Court lacked the authority to compel a representative to provide a litigant with information regarding the representative's investigation of the litigant's claim of false imprisonment).

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C. IN THE ABSENCE OF ANY FEDERAL CLAIM THE COURT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S STATE LAW CLAIM

Plaintiff includes the phrase, “Petition for Disqualification from Ballot & Public Office” in the heading of his pleading. I construe this language as an attempt to file an objection to Defendant's nomination petition under state law.

Under the United States Constitution, the power to regulate the time, place and manner of holding elections for Senators and Representatives has been delegated to the States. U.S. Const. Art. 1, § 4, Cl. 1. Pennsylvania regulates the time, place, and manner of its elections through the Pennsylvania Election Code. 25 P.S. §§ 2601 et seq. Under the Pennsylvania Election Code, each candidate must submit a nomination petition to the state board of elections, which includes an affidavit in which the candidate must certify that he or she is eligible for office. 25 P.S. § 2870. The Pennsylvania Election Code also provides a process for an individual voter, like Plaintiff, to object to nomination petition. 25 P.S. § 2397.

The relevant state statute addressing objections to a nomination petition provides that:

All nomination petitions and papers received and filed within the periods limited by this act shall be deemed valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth objections thereto, and praying that the said petition or paper be set aside .... Upon the presentation of the such a petition, the court shall make an order fixing a time for hearing which shall not be later than ten days after the last day for filing said nomination petition or paper, and

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specifying the time and matter of notice that shall be given to the candidate or candidates named in the nomination petition or paper sought to the best aside. On the day fixed for said hearing, the court shall proceed without delay to hear said objections, and shall give such hearing precedence over other business before it, and shall finally determine said matter not later than fifteen (15) days after the last day for filing said nomination paper.

25 P.S. § 2937.

Where a district court has dismissed all claims over which it had original jurisdiction, the Court may decline to exercise supplemental jurisdiction over state law claims. 28 U.S.C. § 1367(c)(3). Whether the Court will exercise supplemental jurisdiction is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). That decision should be based on “the values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 350 (1988).

Ordinarily, when all federal law claims have been dismissed and only state law claims remain, the balance of these factors indicates that any remaining claims properly belong in state court. Id. at 350. This case is no exception. In the absence of any plausible federal claim, the Court should decline to exercise jurisdiction over Plaintiff's objection to Defendant's nomination petition.

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D. EFFECT OF INJUNCTIVE SANCTIONS

As noted in Section II(A) of this Report, Plaintiff is subject to two injunctive sanctions in this district. I note that Plaintiff's current lawsuit does not contain the objectional language that, in part, prompted Judge McClure to issue sanctions thirteen years ago. To the extent that the 2011 sanction requiring Plaintiff to obtain certification from a United States Magistrate Judge before filing any future civil action within the Middle District of Pennsylvania is still enforceable, I decline to certify Plaintiff's pleading in this case because Plaintiff lacks standing to bring a federal quo warranto claim, and because the Court lacks the authority to grant the mandamus relief he requests.

The sanction prohibiting Plaintiff from filing any civil action in this Court that includes a claim about his 2004 tax assessment is not applicable to the claims raised in this pleading.

E. LEAVE TO AMEND SHOULD BE DENIED

If a complaint is subject to dismissal for failure to state a claim, “a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny , 515 F.3d 224, 245 (3d Cir. 2008). If the 2011 sanction is no longer enforceable, Plaintiff's pleading should be dismissed without leave to amend because amendment is futile.

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As explained in this Report, only the United States can bring a federal quo warranto claim. Thus, amendment cannot cure the defects in Plaintiff's quo warranto claim. Similarly, pursuant to 28 U.S.C. § 1361, this Court does not have the authority to grant mandamus relief against Defendant because he is not considered a “federal official” under the mandamus statute. Amendment cannot cure this defect.

F. THE COURT MAY CONSIDER IMPOSING ADDITIONAL INJUNCTIVE SANCTIONS

As discussed in Section II(A) of this Report, Plaintiff has filed a number of civil cases in this district proceeding in forma pauperis , all of which have been dismissed as meritless. Recently, Plaintiff has filed three cases (including this case) asserting meritless federal quo warranto claims, despite being instructed by this Court that a private individual cannot assert such claims. See Hill v. Commonwealth of Pennsylvania , No. 21-CV-479 (M.D. Pa.); Hill v. Mastriano , No. 22-CV-556 (M.D. Pa.). Considering Plaintiff's history in this Court, and given his conduct of filing three cases that include federal quo warranto claims, it may be appropriate to impose a second narrow injunctive sanction that would enjoin Plaintiff from continuing to initiate any civil action that includes a federal quo warranto claim. Should the District Court find that such sanction is appropriate, it may refer this matter to me to conduct appropriate sanction proceedings and to recommend an appropriate sanction.

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V. RECOMMENDATION

To the extent that the 2011 sanction is still enforceable, I DECLINE to certify this action for filing because Plaintiff lacks standing to bring a federal quo warranto claim, and because Plaintiff cannot obtain the mandamus relief he requests from this Court. In the alternative, it is RECOMMENDED that:

(1) Plaintiff's IFP motion (Doc. 2) be granted and this case should be dismissed without leave to amend pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) (failure to state a claim on which relief may be granted).

(2) If appropriate, refer this matter to me to conduct appropriate sanction proceedings and to recommend an appropriate sanction that would prohibit Plaintiff from filing future federal quo warranto claims and any future mandamus claims about elections without counsel or payment of the full civil filing fee, or the in alternative, simply close this case.

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NOTICE OF LOCAL RULE 72.3

NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.