Opinion
CIVIL ACTION NO. 4:17-CV-00268
04-09-2019
FRANCIS JOSEPH CARETTI JR., Plaintiff, v. THOMAS J. DOERR, et al., Defendants.
(BRANN, J.)
() REPORT AND RECOMMENDATION
The plaintiff, Francis Joseph Caretti Jr., filed his original pro se complaint on or about February 14, 2017. He filed an amended complaint as a matter of right on or about April 21, 2017. In essence, he claims that he is entitled to an award of damages from the defendants in excess of $78 million for their roles in his incarceration, which began in 2006 after his conviction on 297 counts of possession of child pornography.
Caretti appears to subscribe to the specious "redemptionist" theory, common among individuals in the sovereign citizen, militia, and tax protestor movements. Adherents to this "redemptionist" theory believe
that a person has a split personality: a real person and a fictional person called the "strawman." The "strawman" purportedly came into being when the United States went off the gold standard in [1933], and, instead, pledged the strawman of its citizens as collateral for the country's national debt. Redemptionists claim that government has power only over the strawman and not over the live person, who remains free.Monroe v. Beard, 536 F.3d 198, 203 n.4 (3d Cir. 2008). Other hallmarks include the characterization of laws of general applicability and court rulings as "contracts" between the government and the litigant, see, e.g., Roche v. Attorney Gen., 420 Fed. App'x 124, 125 n.2 (3d Cir. 2011) (per curiam), and the use of "copyrighted" personal names, see Monroe, 536 F.3d at 203 & n.2. Here, the plaintiff has referred to himself in the caption and body of his pleadings as two separate parties: "FRANCIS JOSEPH CARETTI JR.," which is a "registered trade name / business entity," and "Caretti, Francis Joseph Jr.," a natural person and the registered trade name holder and real party in interest in the fictional "FRANCIS JOSEPH CARETTI JR." entity. He has signed his pleadings as "Francis Joseph Caretti Jr., non-negotiable autograph[,] Private American; agent without recourse, Beneficial Owner and First Lien Holder of CARETTI FRANCIS JOSEPH JR. Estate, d/b/a FRANCIS JOSEPH CARETTI JR.[,] in Exclusive Equity within a Non-Militariliy Occupied Private Estate Without the Jurisdiction of the United States Under military occupation since 1933" and as "Caretti, Francis Joseph Jr., non-negotiable autograph[,] Private American; agent without recourse, heir and beneficiary of FRANCIS JOSEPH CARETTI JR. Legal Estate." He has attached documents in support of his complaint which he has signed as "Francis Joseph Jr. of the family Caretti[,] Title holder to 'FRANCIS JOSEPH CARETTI JR.[,]' All Rights Reserved Without Prejudice," and which characterize himself as the "Common Law Copyright/Trade Name Copyright Holder" of his all-caps name. The Court declines to participate in this exercise and has docketed this case simply as having been brought by Francis Joseph Caretti Jr., the plaintiff's real and legal name. The style or capitalization of his name in the caption of this or other documents is of no legal significance in any event, but merely identifies Caretti as the party bringing this action. See Jaeger v. Dubuque Cty., 880 F. Supp. 640, 643-44 (N.D. Iowa 1995).
The original complaint was received by the Court and filed on February 14, 2017, but it was signed and dated on January 11, 2017. The reason for the delay is unclear from the papers, but it exceeds that typically attributable to time spent in transit in the mails.
For the reasons stated herein, we recommend that the action be dismissed as frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1).
I. BACKGROUND
At the time of filing, Caretti was a convicted state inmate incarcerated at SCI Benner Township, a state prison located in Centre County, Pennsylvania, where he was incarcerated pursuant to a state criminal judgment. On February 28, 2006, following a jury trial, Caretti was convicted of 297 counts of felony possession of child pornography and 3 counts of misdemeanor possession of obscene materials in the Court of Common Pleas of Butler County, Pennsylvania. Commonwealth v. Caretti, Docket No. CP-10-CR-0000565-2005 (Butler Cty. (Pa.) C.C.P.). On May 18, 2006, he was sentenced to serve an aggregate term of nine to twenty-seven years in prison. Commonwealth v. Caretti, Docket No. CP-10-CR-0000565-2005 (Butler Cty. (Pa.) C.C.P.). (See also Doc. 8-1, at 63-65.) On October 19, 2017, the Superior Court of Pennsylvania affirmed Caretti's conviction and sentence in part and reversed it in part. Commonwealth v. Caretti, 943 A.2d 309 (Pa. Super. Ct. 2007) (table decision). Caretti sought discretionary review by the Pennsylvania Supreme Court, which denied allocatur on May 30, 2008. Commonwealth v. Caretti, 952 A.2d 674 (Pa. 2007) (table decision). On September 12, 2008, the trial court reaffirmed and re-imposed its prior sentence in its entirety on remand. Commonwealth v. Caretti, Docket No. CP-10-CR-0000565-2005 (Butler Cty. (Pa.) C.C.P.).
Caretti filed his original complaint in this matter on or about February 14, 2017. (Doc. 1.) He filed an amended complaint as a matter of right on or about April 21, 2017. (Doc. 8.) The amended complaint names four defendants: (1) The Commonwealth of Pennsylvania; (2) the Butler County Court of Common Pleas; (3) Thomas J. Doerr, the President Judge of the Butler County Court of Common Pleas, in his personal capacity only; and (4) Richard A. Goldinger, the District Attorney for Butler County, in his personal capacity only. Generally, Caretti appears to claim that the state court lacked jurisdiction to prosecute him, and that the individual defendants are liable for damages pursuant to a contractual agreement of a sort. For relief, the plaintiff appears to seek injunctive relief—his release from incarceration—and an award of $78 million in damages.
We note that Judge Doerr does not appear to have presided over Caretti's trial or post-conviction proceedings. He appears to have been named by the plaintiff based solely on his role as the titular head of the county court of common pleas.
We note that there is nothing in the complaint or the publicly available state court dockets to suggest that Attorney Goldinger played any direct role in Caretti's prosecution. He too appears to have been named by the plaintiff based on his role as the titular head of the county district attorney's office.
II. LEGAL STANDARD
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The Court must dismiss the complaint if it is "frivolous" or "fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). See generally Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation screening procedures and standards).
An action is "frivolous where it lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Thomas v. Barker, 371 F. Supp. 2d 636, 639 (M.D. Pa. 2005). To determine whether it is frivolous, a court must assess a complaint "from an objective standpoint in order to determine whether the claim is based on an indisputably meritless legal theory or clearly baseless factual contention." Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995) (citing Denton v. Hernandez, 504 U.S. 25, 34 (1992)); Thomas, 371 F. Supp. 2d at 639. Factual allegations are "clearly baseless" if they are "fanciful," "fantastic," or "delusional." See Denton, 504 U.S. at 32-33. "[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. at 33. A district court is further permitted, in its sound discretion, to dismiss a claim "if it determines that the claim is of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch, 67 F.3d at 1089.
The legal standard for dismissing a complaint for failure to state a claim under § 1915A(b)(1) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); Banks, 568 F. Supp. 2d at 588. "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks, 568 F. Supp. 2d at 588-89.
III. DISCUSSION
It is clear from the plaintiff's pleadings that he is an adherent
to the belief that even though he was born and resides in the United States, he is his own sovereign and is therefore not a United States citizen. This belief is the hallmark of the sovereign citizen movement. So-called sovereign citizens believe that they are not subject to government authority and employ various tactics in an attempt to, among other things, avoid paying taxes, extinguish debts, and derail criminal proceedings.Gravatt v. United States, 100 Fed. Cl. 279, 282 (2011) (footnote omitted). See generally Charles E. Loeser, From Paper Terrorists to Cop Killers: The Sovereign Citizen Threat, 93 N.C. L. Rev. 1106, 1120-29 (2015) (describing the common beliefs and tactics of sovereign citizens).
The tactic adopted by Caretti here was the preparation of a document styled as a Criminal Complaint & Affidavit of Obligation for Claim Upon Public Hazard Bonds Demand for Release ("Affidavit of Obligation"), dated September 6, 2016, by which Caretti purported to advise Judge Doerr and Attorney Goldinger that he was a sovereign "living man" ("Francis Joseph Caretti Jr.") distinct from the "nom de guerre" defendant ("FRANCIS JOSEPH CARETTI JR.") subject to criminal proceedings, and that he was therefore not subject to the jurisdiction of the state court. The Affidavit of Obligation further provided that, unless they provided a "point-for-point response sworn under full commercial liability, with supporting evidence attached," the individual defendants' failure to respond would constitute silent assent to a contract under which they would be liable to Caretti for contractual damages in excess of $78 million.
In support, the Affidavit of Obligation provided an itemized list of the various components to this demand for damages. Caretti sought $10,000 for each of 34 enumerated violations of federal criminal law pursuant to 18 U.S.C. § 241 ($340,000), plus $300,000 in compensatory damages for each of twelve years of unlawful incarceration ($3.6 million), plus $1.2 million in punitive damages for each of twelve years of unlawful incarceration ($14.4 million), plus $5 million in damages for each of twelve years of tortious false imprisonment ($60 million).
A. Injunctive Relief
One form of relief requested by the plaintiff in his complaint is his immediate release from prison. But this form of injunctive relief is simply not cognizable in a federal civil rights action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) ("[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release . . . .") (citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)); Thomas v. Morganelli, Civil Action No. 16-2161, 2016 WL 7116011, at *5 (E.D. Pa. Dec. 7, 2016) (finding federal district court lacked jurisdiction to invalidate plaintiff's state conviction because "a federal court may not 'compel a state court to exercise a jurisdiction entrusted to it' or 'review a decision of a state tribunal'") (quoting In re Grand Jury Proceedings, 654 F.2d 268, 278 (3d Cir. 1981)). Requesting such relief in a non-habeas civil action is clearly frivolous. See Mundy v. City of Philadelphia, Civil Action No. 13-5045, 2013 WL 4766542, at *1 (E.D. Pa. Sept. 4, 2013).
Accordingly, it is recommended that the plaintiff's claim for injunctive relief be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915A(b)(1).
B. Damages Claims Against the Commonwealth Entities
The first two defendants named by the plaintiff are the Commonwealth of Pennsylvania and the Butler County Court of Common Pleas. But the Commonwealth and all courts in Pennsylvania's unified judicial system are entitled to Eleventh Amendment immunity from suit. See Haybarger v. Lawrence Cty. Adult Probation & Parole, 551 F.3d 193, 198 (3d Cir. 2008). In light of this clear and absolute immunity defense, any claims against the Commonwealth or the state trial court are clearly based on an indisputably meritless legal theory and thus should be dismissed as legally frivolous. See Neitzke, 490 U.S. at 327 (noting that claims against defendants who are clearly immune from suit are "based on an indisputably meritless legal theory"); McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991) (affirming dismissal for frivolousness of claims barred by the Eleventh Amendment); Pinkney v. Commonwealth, No. CIV. A. 93-1292, 1993 WL 120338, at *1 (E.D. Pa. Apr. 16, 1993) (dismissing claims against the Commonwealth of Pennsylvania as frivolous).
Accordingly, it is recommended that all claims against the Commonwealth of Pennsylvania and the Butler County Court of Common Pleas be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915A(b)(1).
C. Federal Damages Claims Against Individual Defendants
In his amended complaint, the plaintiff expressly disclaims any federal question jurisdiction based on 42 U.S.C. § 1983 or other civil rights statutes. (See Doc. 8, at 2 ("This complaint does not fit within the scope of the DISTRICT COURT's form for civil rights violations as the Complainant is not [a] statutory citizen, and I am not claiming jurisdiction under such statutes.").) If accepted on such terms, we—or any other federal district court—would lack subject matter jurisdiction altogether over this action, making dismissal necessary. See Shorb v. Josephine Cty. Cir. Ct., Civ. No. 1:17-cv-00449-AA, 2017 WL 4553410, at *3 (D. Or. Oct. 11, 2017) (finding no subject matter jurisdiction where diversity was lacking and pro se plaintiff disclaimed federal question jurisdiction using identical words).
We note that the original complaint expressly referenced 42 U.S.C. §§ 1983 and 1985(3) as the basis for his claims, and 28 U.S.C. § 1343(a)(3) as the basis for our exercise of jurisdiction.
But as a pro se litigant, we are obliged to liberally construe Caretti's amended complaint and consider whether he has stated a colorable claim under 42 U.S.C. § 1983, the appropriate statute for remedy of civil rights by state actors. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants). "A party does not need to plead specific legal theories in the complaint, as long as the opposing party receives notice as to what is at issue in the lawsuit." Elec. Constr. & Maint. Co., Inc. v. Maeda Pac. Corp., 764 F.2d 619, 622 (9th Cir. 1985); accord Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005); King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civil Action No. 2:06-cv-1797, 2014 WL 982848, at *7 n.11 (E.D. Pa. Mar. 13, 2014) (quoting Maeda Pac. Corp.). Further, the review of a pro se complaint focuses on whether the facts alleged state a claim under any legal theory, not just those explicitly named in the complaint. Small, 398 F.3d at 898; Ohuche v. Merck & Co., Inc., 903 F. Supp. 2d 143, 150 (S.D.N.Y. 2012); Thiel v. Nelson, 422 F. Supp. 2d 1024, 1028 (W.D. Wis. 2006).
The gist of Caretti's complaint is that he was convicted and sentenced by a state court that lacked personal jurisdiction over him, which we construe as a claim that he was deprived of his federal due process rights, made actionable under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
We note that, in addition to § 1983, the plaintiff's original complaint referenced 42 U.S.C. § 1985(3). We have declined to construe his amended complaint to include a § 1985(3) claim, however, because Caretti has failed to plead any wrongful conduct by the defendants that was allegedly motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus," a necessary element to establish a § 1985(3) claim. See United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 835 (1983); Bell v. City of Milwaukee, 746 F.2d 1205, 1233 (7th Cir. 1984), overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005). We further note that the Affidavit of Obligation, upon which Caretti's contractual claims against Judge Doerr and Attorney Goldinger rest, bases its claim for liquidated damages in part on 34 violations of 18 U.S.C. § 241. But it is well established that this federal criminal statute does not give rise to a private cause of action. See Abou-Hussein v. Gates, 657 F. Supp. 2d 77, 81 (D.D.C. 2009), aff'd, 2010 WL 2574084 (D.C. Cir. June 11, 2010) (per curiam); Shahin v. Darling, 606 F. Supp. 2d 525, 538 (D. Del. 2009), aff'd, 350 Fed. App'x 605 (3d Cir. 2009) (per curiam); Figueroa v. Clark, 810 F. Supp. 613, 615 (E.D. Pa. 1992); Dugar v. Coughlin, 613 F. Supp. 849, 852 n.1 (S.D.N.Y. 1985); Brunwasser v. Strassburger, 490 F. Supp. 959, 964 (W.D. Pa. 1980).
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Here, the complaint names two individual defendants—Judge Doerr and Attorney Goldinger. Both appear to be named solely in their roles as titular heads of the county court of common pleas and the county district attorney's office, respectively. Neither is alleged to have had any direct role in the prosecution or adjudication of Caretti's criminal case.
It is well-established that "[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown . . . to have been personally involved in the events or occurrences which underlie a claim." Millbrook v. United States, 8 F. Supp. 3d 601, 613 (M.D. Pa. 2014) (citation omitted). "A defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved." Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). Typically, personal involvement may be established through: (1) personal direction or actual participation by the defendant in the misconduct; or (2) knowledge of and acquiescence in the misconduct. Id. As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The complaint makes no such allegations with respect to either Judge Doerr or Attorney Goldinger, and the public record of Caretti's criminal case reveals that Judge Doerr did not preside over the case and Attorney Goldinger did not prosecute it.
Alternatively, § 1983 liability may result if a supervising defendant caused a subordinate to violate another's constitutional rights through the execution of an official policy or settled informal custom. See Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989).
[T]o hold a supervisor liable because his policies or practices led to [a constitutional] violation, the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1) the existing policy or practice created an unreasonable risk of the [constitutional] injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury
resulted from the policy or practice.Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample, 885 F.2d at 1118). But the complaint here fails to allege the existence of a policy, practice, or custom of any sort that caused Caretti's alleged constitutional injury.
Accordingly, it is recommended that the plaintiff's federal civil rights claims against Judge Doerr and Attorney Goldinger be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1). It is further recommended that, based on the allegations of the amended complaint, these claims be dismissed without leave to amend as any further amendment is clearly futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
D. State Law Claims Against Individual Defendants
What remains, then, is a simple—and fundamentally flawed—breach of contract claim against the individual defendants in their personal capacities.
Fundamentally, Caretti's claim is a state-law claim for breach of contract. He claims that state authorities have no authority to incarcerate him because he is a natural person or sovereign citizen, distinct from "FRANCIS JOSEPH CARETTI JR.," the nom de guerre defendant named in the state criminal judgment, and thus not subject to the laws of the Commonwealth of Pennsylvania—a patently frivolous claim. See Yun v. New Jersey, Civ. No. 18-cv-1804 (KM) (SCM), 2019 WL 913155, at *5 (D.N.J. Feb. 22, 2019); Commonwealth v. Williams, No. 2089 EDA 2014, 2015 WL 6458000, at *4 (Pa. Super. Ct. Oct. 7, 2015). In September 2016, after a decade of incarceration, he claims to have unilaterally contracted with Judge Doerr and Attorney Goldinger by means of an Affidavit of Obligation, which states that the defendants' failure to respond to it will be construed as consent, a process purportedly authorized by the common law of equity or some collection of pre-1933 federal statutes—the ultimate basis for the plaintiff's legal theories is not altogether clear—a claim that is "simply incorrect as a matter of black-letter contract law." Smithson v. York Cty. Court of Common Pleas, Civil Action No. 1:15-cv-01794, 2016 WL 4521854, at *4 (M.D. Pa. Aug. 3, 2016), report and recommendation adopted by 2016 WL 4523985 (M.D. Pa. Aug. 29, 2016); Brown v. Aponte, Civil Action No. 06-2096, 2006 WL 2869524, at *4 (E.D. Pa. Oct. 3, 2006).
For example, among other purported sources of authority cited by the plaintiff, we note that he references the Clearfield doctrine, mischaracterizing it as a common law doctrine holding that statutes can only be enforced by contract, upon which he has based his claim that the state court lacked jurisdiction over him because he never entered into a contract subjecting himself to the state court's jurisdiction. This assertion is simply incorrect as a matter of law. In Clearfield Trust Co. v. United States, 318 U.S. 363 (1943), the Supreme Court held that "[t]he rights and duties of the United States on commercial paper which it issues are governed by federal rather than [state] law." Id. at 366. The Clearfield doctrine is simply inapplicable in the circumstances presented here, as Caretti's criminal proceedings had nothing whatsoever to do with commercial paper—e.g., a check or bank draft—or the United States as a party. See Yun v. Pennsylvania, Civil No. 3:18-CV-01248, 2018 WL 3717213, at *6 (M.D. Pa. June 27, 2018), report and recommendation adopted by 2018 WL 3715722 (M.D. Pa. Aug. 3, 2018). Moreover, the state court's exercise of jurisdiction was not dependent upon the plaintiff's consent to a contract of any sort. It was based on his commission of criminal acts within the borders of Butler County. See Washington v. Sobina, 475 F.3d 162, 165 (3d Cir. 2007) (per curiam); Commonwealth v. McNeil, 665 A.2d 1247, 1251 (Pa. Super. Ct. 1995). This jurisdictional argument, upon which this entire action is founded, is legally frivolous.
Based on the amended complaint and its attachments, neither of the individual defendants signed the purported contract or otherwise responded to it. Under Pennsylvania law, "[t]o be a contract, the offer must be accepted. An offeree has a right to make no reply to offers, and his silence and inaction cannot be construed as an assent to the offer." In re Baum's Estate, 117 A. 684, 685 (Pa. 1922); see also Smithson, 2016 WL 5421854, at *5 (citing Baum's Estate); Cohen v. Johnson, 91 F. Supp. 231, 236 (M.D. Pa. 1950) (same).
To form an enforceable contract, both parties must manifest an intention to be bound by its terms. The "decisive inquiry in contract formation is the 'manifestation of assent of the parties to the terms of the promise and to the consideration paid for it.'" Silence will not constitute acceptance of an offer in the absence of a duty to speak. Merely sending an unsolicited offer does not impose upon the party receiving it any duty to speak or deprive the party of its privilege of remaining silent without accepting.Smithson, 2016 WL 5421854, at *5 (quoting Brown, 2006 WL 28869524, at *3). Caretti's unilateral attempt to impose a contractual obligation did not create a duty on the part of these defendants to respond, and their mere silence, in the absence of any intent by them to be bound, could not create a valid contract. Indeed, it is clear that Caretti's claim is based on an indisputably meritless legal theory, and thus it is legally frivolous.
IV. PLRA "THREE STRIKES" WARNING
The plaintiff is hereby notified that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915,
if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
If this recommended disposition is adopted by the presiding United States District Judge, the dismissal of this action as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1) will constitute a "strike" under 28 U.S.C. § 1915(g), and the accumulation of additional strikes may bar the plaintiff from proceeding in forma pauperis in later cases absent a showing of imminent danger. See generally Byrd v. Shannon,715 F.3d 117, 126 (3d Cir. 2013) (articulating Third Circuit standard for application of § 1915(g) "three strikes" rule).
V. RECOMMENDATION
Based on the foregoing, it is recommended that:
1. The plaintiff's amended complaint (Doc. 8) be DISMISSED as frivolous and for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1); and
2. The Clerk be directed to CLOSE this case. Dated: April 9, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated April 9, 2019. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: April 9, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge