Carlsen v. Carlsen

JEFFREY P. CARLSEN, Plaintiff, v. CARI A. CARLSEN, Defendant.

CIVIL ACTION NO. 11-11650-GAO

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DATED: September 22, 2011

MEMORANDUM AND ORDER

O'TOOLE, D.J.

For the reasons set forth below: (1) Plaintiff Jeffrey P. Carlsen's request to proceed in forma pauperis (contained in the Petition for Civil Relief) is DENIED; (2) the Petition for Civil Relief is DENIED; (3) this action is DISMISSED in its entirety; and (4) Plaintiff is PROHIBITED from filing any further pleadings or requests for relief (in any form), or any new civil actions, that assert matters alleged in his prior litigation in this Court stemming from the New Hampshire Protective Order or his Massachusetts criminal conviction arising out of that Order.

BACKGROUND

This action is Carlsen's fourth attempt to seek relief from his Massachusetts state conviction based on his violation of a New Hampshire Protective Order. The relevant litigation background is set forth below.

I.. Prior Related Litigation

A. Carlsen v. DiPaola, Civil Action No. 11-11100-RWZ

On June 13, 2011, Plaintiff Jeffrey Carlsen ("Carlsen"), a convicted prisoner in custody at the Billerica House of Correction in Billerica, Massachusetts, filed two self-prepared pleadings entitled Ex Parte Request for Federal Injunctive Relief seeking an immediate hearing.See Carlsen v. DiPaola, Civil Action No. 11-11100-RWZ. Carlsen alleged that his present incarceration was unlawful, and challenged his state conviction in Massachusetts for violation of a New Hampshire Protective Order (restraining order) obtained by his ex-spouse, Cari Carlsen.

The relevant background, as found by Judge Zobel, is as follows. In May, 2009, Cari Carlsen ("Cari") sought an extension of an abuse prevention Protective Order against Carlsen in the Lowell District Court in Massachusetts pursuant to Mass. Gen. Laws § 209A, but her request for an extension was denied. Carri also sought a Protective Order in the State of New Hampshire (Docket No. 2010-0542), because Carlsen allegedly resided in New Hampshire. The New Hampshire Court granted the request and issued a Protective Order on July 16, 2009. That Protective Order later was extended on August 4, 2010 through July 2011. At some point thereafter, Carlsen was criminally charged in Massachusetts with violating the New Hampshire Protective Order. A jury trial was held on July 7, 2011, and he was found guilty. On June 22, 2011, Judge Zobel issued a Memorandum and Order (Docket No. 4) construing Carlsen's pleadings as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction. Carlsen was directed to show cause why the habeas petition should not be dismissed for failure to exhaust state remedies.

On June 15, 2011, Judge Zobel issued a Memorandum and Order For Dismissal (Docket No. 7), dismissing the habeas petition for failure to exhaust state remedies.

B. Carlsen v. Carlsen, Civil Action No. 11-11119-MLW

On the heels of the dismissal of the habeas petition, on June 20, 2011, Carlsen filed a civil action against his ex-wife. He alleged that on May 9, 2007, Cari knowingly provided false information to a police officer, claiming abuse of her and her children. Carlsen also alleged thata week later, Cari provided false information to the New Hampshire Superior Court in Nashua, claiming abuse. He further contended that on May 22, 2007, she knowingly provided false information to the Lowell District Court, again claiming abuse of her and her children. Next, Carlsen contended that she committed acts of fraud by seeking a protective order in New Hampshire because New Hampshire was not the proper venue to seek such relief. Finally, Carlsen alleged a conspiracy to commit fraud (generally) as well as mail fraud against the United States, by providing the false information to the state court. As a result, Carlsen claims he was improperly sentenced and incarcerated. He sought to have a criminal complaint against Cari Carlsen to answer for perjury, fraud, conspiracy, and mail fraud.

On July 1, 2011, Chief Judge Wolf issued a Memorandum and Order for Dismissal (Docket No. 2), dismissing the action sua sponte because a private citizen may not bring a criminal action against another.

C. Carlsen v. DiPaola, Civil Action No. 11-11498-RGS

Again, on the heels of dismissal of his prior action, Carlsen filed, on August 23, 2011, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his June 7, 2011 conviction, essentially on the same grounds asserted in his prior civil actions (i.e., that the trial judge improperly admitted evidence, that there was no probable cause for the criminal complaint against him to issue, and that Massachusetts law was not followed by Cari or by the Lowell District Court staff). This time, Carlsen asserted he had exhausted all of his state remedies.¹

This action was referred to Magistrate Judge Collings for a Report and Recommendation, and remains pending.

II. The Instant Action

On September 16, 2011, Carlsen filed a four-page self-prepared pleading entitled "Petition for Civil Relief." Compl. (Docket No. 1). He did not include a caption in the pleading; however, his Civil Cover Sheet attached to the pleading identifies the case as Jeffrey P. Carlsen v. Cari A. Carlsen. In the Petition for Civil Relief (which this Court construes as his Complaint for purposes of this Memorandum and Order), Carlsen purportedly seeks civil relief under 28 U.S.C. § 1441, but he fails to provide any facts or allegations supporting removal. Among other things, he asks this Court for an expedited hearing "due to being incarcerated by the State of Massachusetts." Comp. at 4. He also seeks a Declaration that the New Hampshire Protective Order issued to Cari was invalid and void (since July 16, 2009). In support of his requests, he reasserts his allegations that the New Hampshire Protective Order issued to his Cari was based on false information supplied by her. He also contends that because she could not obtain an extension of a protective order in Massachusetts, she "forum-shopped" in order to obtain one in New Hampshire. Further, he asserts that New Hampshire improperly issued the Protective Order to a non-resident. Finally, he contends that he has exhausted his state remedies to the highest court in New Hampshire, to no avail.

In the body of his petition, Carlsen asks that the filing fee be assessed against his canteen account; however, he failed to file an application to proceed without prepayment of the filing fee.

DISCUSSION

I. The Filing Fee

A party bringing a civil (non-habeas) action must either (1) pay the $350.00 filing fee, see 28 U.S.C. § 1914(a); or (2) seek leave to proceed without prepayment of the filing fee, see 28 U.S.C. § 1915 (proceedings in forma pauperis).² Where, as here, Carlsen is a prisoner, a motion for waiver of prepayment of the filing fee must be accompanied by "a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2). Additionally, any plaintiff moving to proceed without prepayment of the filing fee must submit an affidavit that "includes a statement of all assets such prisoner possesses [showing] that the person is unable to pay such fees or give security therefor" and "state[s] the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress." 28 U.S.C. § 1915(a)(1).

As noted above, Carlsen seeks to proceed in forma pauperis, but he has not complied with the requirements of the statute either in submitting his prison account statement, or in filing the required financial affidavit.³

Accordingly, this Court DENIES Carlsen's request to proceed in forma pauperis (contained in the Petition for Relief). In light of the sua sponte dismissal of this action, however, for the reasons set forth below, the Court need not afford Carlsen an opportunity to cure the defects in his in forma pauperis request.

II. The Complaint is Subject to Preliminary Screening

As noted above, Carlsen has not indicated who the adverse party is in this action.⁴ He names Cari in the Civil Cover Sheet, but his claims appear to be directed against the State of New Hampshire. Thus, to the extent that he seeks an Order vacating the New Hampshire Protective Order, the Court presumes that some unidentified governmental entity would be the proper Defendant, rather than his ex-wife Cari. In the event this action involves a governmental defendant, this Court would have authority to screen this action, under 28 U.S.C. § 1915A.⁵ In any event, no matter who the Defendant is, this Court has inherent authority to review Carlsen's action to determine if it is frivolous as that term is used in legal parlance. See Mallard v. UnitedStates District Court, 490 U.S. 296, 307-08 (1989) (courts have authority to dismiss a frivolous or malicious lawsuits even in absence of any specific statutory provision); Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) ("district courts are especially likely to be exposed to frivolous actions, and thus have an even greater need for inherent authority to dismiss such actions quickly in order to preserve scarce judicial resources" and district court properly dismissed frivolous case, even in a fee-paying case).⁶

A court may also dismiss a complaint on its own motion for failure to state a claim upon which relief may be granted. See Gaffney v. State Farm Fire and Cas. Co., 294 Fed. Appx. 975, 977 (5th Cir. 2008) (unpublished decision). Further, apart from the authority to screen cases on the merits, the Court also has an independent obligation to inquire, sua sponte, into its subject matter jurisdiction.⁷

In connection with this preliminary screening,...