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Marks v. Torres

September 18, 2008

ANTOLIN ANDREW MARKS, PLAINTIFF,
v.
JOHN P. TORRES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on Defendants' Motion to Dismiss Complaint as Frivolous or Malicious Or, in the Alternative, Motion to Transfer, and to Stay Further Proceedings Pending Disposition of the Motion. For the reasons stated herein, the Court will transfer this action to the United States District Court for the Western District of Washington.

I. BACKGROUND

Plaintiff is detained by U.S. Immigration and Customs Enforcement ("ICE") at the Northwest Detention Center ("NWDC") in Tacoma, Washington. See Compl. at 1 (first ¶ 1). According to ICE's website (http://www.ice.gov/pi/dro/facilities/tacoma.htm), NWDC is a temporary detention center operated under contract with The GEO Group Inc. for individuals awaiting either a determination of their immigration status or repatriation.

On or about February 2, 2007, plaintiff prepared for copying and mailing "a letter to the members of Congress who are Democrats, a copy of the Visa Application for Rudder, Wayne,*fn1 a scan of four pictures showing the Plaintiff at the age of 19, one document showing Rudder at the age of 14, and the exact same documents to the Senators who are Democrats and Independents." Compl. ¶ 14. Plaintiff "presented 285 letters to [Michael] Melendez to be mailed to Congress."*fn2

Id. Through these letters, plaintiff sought "a private bill to his benefit for assistance in his immigration case[.]" Id. ¶ 10.

After 120 days had passed without "one single response . . . from those letters," Compl. ¶ 14, plaintiff came "to believe that [Mr.] Melendez did not mail the letters as he stated he did." Id. Plaintiff then prepared 285 "follow-up letters" and submitted them for mailing. Id. ¶ 16. According to plaintiff, Mr. Melendez refused to mail the letters on the ground that they were "special correspondence" subject to a limit of five items per week.*fn3 Id. Legal mail was not subject to such limits. Rather, according to plaintiff, regulations provided that "[i]ndigent detainees will be permitted to mail . . . at government expense . . . [a]ll correspondence related to a legal matter, including correspondence to a legal representative, potential legal representative and any court." Compl. ¶ 22. Mailing the 285 letters at the rate of five per week "mean[t] that it would take Plaintiff a full year, one month and one week to send all the letters to Congress." Id.

Plaintiff contends that his follow-up letters to Congress qualified as legal mail because they are related to the "legal matter" of his immigration case. See Compl. ¶¶ 39-42. He asserts that he has a right to petition Congress and that defendants' refusal to mail the follow-up letters at government expense violates his First Amendment right to petition Congress and his Fifth Amendment right to due process. See id. ¶ 41. Plaintiff brings this action against John Torres for his alleged failure to train and supervise his subordinates, Jack Bennett and Neil Clark, with respect to the due process rights of detainees and compliance with national detention standards on the handling of detainees' mail.*fn4 See Compl. ¶¶ 1-4, 42-43. He further alleges that defendants unlawfully opened legal and confidential mail, see id. ¶¶ 63-94, copied legal documents, see id. ¶¶ 95-101, and improperly returned legal mail to sender, see id. ¶¶ 102-116.

In vague terms, plaintiff also alleges that defendants "failed to provide the Plaintiff with a copy of . . . documents in violation of the Freedom of Information Act and the Privacy Act." Id. ¶ 117. He demands declaratory and injunctive relief. See id. at 36-39 (Remedy).

Prior to the filing of the instant civil action, in June 2007, plaintiff filed a civil action in the United States District Court for the Western District of Washington. Memorandum in Support of Defendants' Motion to Dismiss Complaint as Frivolous or Malicious or, in the Alternative, Motion to Transfer, and to Stay Further Proceedings Pending Disposition of Motion ("Defs.' Mot."), Ex. D (Marks v. Garman, Civ. No. C07-5282 KDB/KLS (W.D. Wash. filed June 4, 2007) (Complaint)). In addition to claims against the federal government under the Freedom of Information Act, the Privacy Act and the Federal Tort Claims Act, plaintiff alleged that "he ha[d] been subjected to mental torture in violation of the Eighth Amendment under the hands of Neil Clark, Gary Garman and Michael Melendez," id. ¶ 38, who "saddled the Plaintiff with the name[] Wayne Rudder where that name is not the Plaintiff's name." Id. ¶ 46. Ultimately the court dismissed plaintiff's FOIA claims without prejudice, dismissed the constitutional claims with prejudice, and re-referred the Federal Tort Claims Act claim to a Magistrate Judge. Marks v. Garman, No. C07-5282 KDB/JKA, 2008 WL 3540177 (W.D. Wash. Aug. 11, 2008).

In July 2007, plaintiff filed another civil action in the United States District Court for the Western District of Washington naming Jack Bennett and Neil Clark as defendants. See Defs.' Mot., Ex. B (Marks v. Bennett, Civ. No. C07-5372 RBL/JKA (W.D. Wash. filed July 23, 2007) (Complaint)). Generally, plaintiff alleged that, on July 17, 2007, defendant Bennett "denied the Plaintiff the ability to send letters to Congressional Representatives [and] Senate Representatives of the Plaintiff's Party." Id., Ex. B ¶ 11. In language that is practically identical to that set forth in paragraphs 10-18 of the instant complaint, plaintiff alleged that defendants refused to mail 285 follow-up letters to Congress at the same time, and, instead, declared the letters special correspondence subject to a limit of five items per week. See id. ¶¶ 12-20. Adopting the Magistrate Judge's Report and Recommendation, the court dismissed this action because plaintiff neither qualified for in forma pauperis status and nor paid the filing fee. See id., Ex. C (Order of Dismissal and Judgment in a Civil Case).

Plaintiff has been declared a "vexatious litigant" against whom the United States District Court for the Western District of Washington has imposed sanctions. See Marks v. United States of America, No. C07-5679 FDB, 2008 WL 803150, *1 (W.D. Wash. Mar. 24, 2008) (order imposing sanctions and removing "his ability to proceed in forma pauperis . . . unless he can show he is in imminent danger of serious bodily harm or death"). Since plaintiff's transfer to NWDC in 2005, he had filed 24 civil actions "show[ing] a pattern of harassing duplicative litigation and abuse of process." Id.; see id. (Magistrate Report and Recommendation setting forth histories of plaintiff's 24 civil actions).

II. DISCUSSION

Defendants move to transfer this action to the United States District Court for the Western District of Washington pursuant to 28 U.S.C. ยง ...


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