2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-7-2011

Hurst v. Benton Counselman

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1791

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Recommended Citation

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CLD-208 NOT PRECEDENTIAL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 BANKS; 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. HARRISON; 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 & CONFERENCE 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

__________________________________
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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

(Opinion 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 

Department of Correction (“DOC”) employees, claiming that they violated his 

constitutional rights. With respect to his arrest and resulting criminal convictions, Hurst 

alleged that he had obtained exculpatory materials, including internal affairs transcripts 

and other 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 

claims. 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. 2003) (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 the 
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Superior Court was dismissed for lack of jurisdiction, and the state supreme court 

affirmed the judgment of the Superior Court. See id.

In the instant action, the 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). The 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, 1309 (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 District Court’s decision 

to dismiss an in forma pauperis complaint as frivolous 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 is 
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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 lawsuit 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. Chipps v. U.S. District Court for Middle District of Pa., 882 F.2d 72 (3d 

Cir. 1989) (district 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 obtain prior court approval before 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 misdemeanor 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 police officers at the door, the police obtained a 

hotel card key to enter Hurst’s room. In the ensuing interaction, the police 
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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 February 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 misdemeanor 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 agree 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 process 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 defendants, see Deutsch, 67 F.3d at 1086. We conclude 

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. We also agree that 
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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 to 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 District 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.