2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 208 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 11

- 1791

____________ JERRY A. HURST, Appellant,

v. *BENTON COUNSELMAN; JEFFREY HORVATH; STEVEN GETEK; WALTER SPEAKMAN; SAMUEL COOPER; KEITH BAN KS; COLLETTE SUTHERLAND; PAUL PARSONS; JAIME RIDDLE; MICHAEL ARMSTRONG; BONNIE LADD; ERIC GLASCO; NICOLE

REYNOLDS; JOHN WOTHERS; TAMMIE MORRISON; MERRILL TRADER; LINDA WHITE; JUSTICE OF THE PEACE MCKENZIE; RN WHITTLE; HUBERT PEY; DR. BURNS; P. HARRIS ON; B.A. GUNTER, M.D.; VERONICA FAUST; CHRISTINE TUNNEL; KIM AYVAZIAN; COLIN SHALK; KEVIN CONNORS; DANIEL GRIFFITH; STUART DROWOS; MICHAEL TUPMAN; LAURA GERARD; RICK KEARNEY; JAMES LUPINETTI; MICHAEL TIGUE; BRYAN HURD; SEAN MILLER; RICK PEREZ, All of the foregoing defendants are sued in their personal as well as their official or representative capabilities; CITY OF REHOBOTH BEACH; CITY OF DOVER; SUSSEX COUNTY CORRECTIONAL INSTITUTION; CORRECTIONAL MEDICAL SERVICES; THE ATLANTIC

SANDS HOTEL & CON FERENCE CENTER; DOES 1

- 20 *(Amended as per the Clerk's 05/18/2011 Order)

__________________________________ On Appeal from the United States District Court for the District of Delaware (D.C. Civ. No. 1

- 10

- cv - 00899) District Judge: Honorable Gregory M. Sleet

__________________________________2 Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 9, 2011 Before: RENDELL, FUENTES and SMITH, Circuit Judges (Opinio n filed : July 7, 2011 )

____________ OPINION

____________
PER CURIAM In this, his latest, civil rights action, appellant Jerry Hurst has once again sued

numerous city officials, police officers, hotel employees, attorneys, judges, and Delaware Departmen t of Correction ( “ DOC ” ) employees , claiming that they violated his constitutional rights. With respect to his arrest and resulting criminal convictions , Hurst allege d that he had obtained exculpatory materials, including internal affairs transcripts and o ther documents , that would render his convictions void ab initio . Hurst alleged numerous constitutional violations, including abuse of process, false arrest, false imprisonment, malicious prosecution , and deprivation of medical treatment, among other clai ms. He sought to invalidate his conviction and to obtain money damages. Hurst was convicted in February, 2002, following a jury trial, of resisting arrest, falsely reporting an incident, and disorderly conduct. See Hurst v. State , 832 A.2d 1251 (Del. 200 3) (order). He was sentenced on the resisting arrest conviction to 30 days at Level V, suspended for six months at Level 1 probation. See id. His appeal to the3 Superior Court was dismissed for lack of jurisdiction , and the state supreme c ourt affirmed t he judgment of the Superior Court. See id. In the instant action, t he District Court granted Hurst’s in forma pauperis application, and, in an order entered on February 28, 2011, dismissed the complaint as malicious under 28 U.S.C. § 1915(e)(2)(B)(i). T he District Court further determined that any amendment would be futile. Noting that a complaint is malicious where it is abusive of the judicial process and merely repeats pending or previously litigated claims, see Crisafi v. Holland , 655 F.2d 1305, 130 9 (D.C. Cir. 1981); Pittman v. Moore , 980 F.2d 994, (5th Cir. 1993), the District Court reasoned that Hurst’s latest action was duplicative of, and related to, the same nucleus of operative facts that formed the basis of his two prior cases, both of which were dismissed as meritless. Hurst appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted him leave to appeal in forma pauperis and advised him that the appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and he has done so. We will dismiss the appeal as frivolous. We review the D istrict C ourt ’ s decision to dismiss an in forma pauperis complaint as frivolo us or malicious for an abuse of discretion. Denton v. Hernandez , 504 U.S. 25, 33 (1992). An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the appeal at any time if the Court determines that it is “frivolous or malicious,” 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is4 frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989). We conclude that Hurst’s appeal is frivolous.

“ A court that considers whether an action is malicious must, in accordance with the definition of the term “malicious,” engage in a subjective inquiry into the litigant ’ s motivations at the time of the filing of the lawsui t to determine whether the action is an attempt to vex, injure or harass the defendant. ” Deutsch v. United States , 67 F.3d 1080, 1086 (3d Cir. 1995). The District Court properly dismissed Hurst’s latest action as malicious. Cf. Chi pps v. U.S. District Court for Middle District of Pa. , 882 F.2d 72 (3d Cir. 1989) (d istrict court may issue injunction under the All Writs Act, 28 U.S.C. § 1651(a) to require litigants who have engaged in abusive, groundless, and vexatious litigation to ob tain prior court approval b efore filing further complaints )

. Hurst appealed both of his prior actions in this Court. In Hurst v. Trader , 223 Fed. Appx. 128 (3d Cir. 2007), we observed that “[t]he allegations in Hurst ’ s complaint originated with his misdem eanor criminal convictions for one count each of resisting arrest, falsely reporting an incident, and disorderly conduct (and an imposition of fines and term of supervision) in the Court of Common Pleas, Sussex County, Delaware. ” Id. at 129. We described the facts giving rise to his second case, Hurst v. City of Rehoboth Beach , 288 Fed. Appx. 20 (3d Cir. 2008), as follows: Sitting in his room at the Atlantic Sands Hotel in Rehoboth Beach, Delaware, Jerry Hurst needed a massage. So, he called 9

- 1

- 1. The police arrived and explained that they did not provide massage services. After they left, Hurst dialed 9

- 1

- 1 again, requesting medical personnel instead of the police. When Hurst did not respond to a police dispatcher who remained on the line or to polic e officers at the door, the police obtained a hotel card key to enter Hurst ’ s room. In the ensuing interaction, the police5 arrested Hurst. Complaining of his treatment during the police visits and in the course of his arrest, Hurst sued more than twenty defendants for tens of millions of dollars in compensatory and punitive damages for alleged violations of federal and state law. Id. at 22. We went on, in painstaking detail, to explain why each and every claim could not proceed. See id. at 24

- 26. On F ebruary 23, 2009, the United States Supreme Court denied Hurst’s motion to proceed in forma pauperis and dismissed his petition for writ of certiorari. The latter unsuccessful appeal should have brought an end to the litigation surrounding Hurst’s 2002 mi sdemeanor case, but, on October 20, 2010, he returned to federal district court in Delaware to file his third civil rights complaint

– the instant action

-- against many of the same defendants. We have carefully reviewed this 71

- page complaint, and we agr ee with the District Court that it is duplicative of, and related to, the same nucleus of operative facts as Hurst’s two prior , meritless cases. “ A complaint plainly abusive of the judicial proce ss is properly typed malicious.” Crisafi , 655 F.2d at 1309. The District Court looked to its own records, see Van Meter v. Morgan , 518 F.2d
366 , 368 (8th Cir. 1975), and properly determined that Hurst’s purpose in filing the third lawsuit was to vex and harass the defendant s, see Deutsch , 67 F.3d at 1086 . We con clude that the District Court’s determination that Hurst’s most recent complaint was abusive of the judicial process and thus malicious was not an abuse of discretion. W e also agree that6 any amendment to the complaint would have been futile, see Foman v. Davis , 371 U.S. 178, 182 (1962) (district court may deny leave to amend when amendment is futile). 1 For the foregoing reasons, we will dismiss the appeal as frivolous pursuant t o 28 U.S.C.§1915(e)(2)(B)(i).

1 In the margin, the District Court noted that dismissal would also be proper under the Rooker

- Feldman doctrine, Rooker v. Fidelity Trust Co. , 263 U.S. 413, (1923); District of Columbia Court of Appeals v. Feldman , 460 U.S. 462 (1983), and the doctrine of issue preclusion. Because we agree with the Di strict Court that the complaint was malicious under 28 U.S.C. § 1915(e)(2)(B)(i), we need not reach the court’s other bases for decision.