ALD-157 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-3306

___________

SHAUN ROSIERE,

Appellant

v.

UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3:16-cv-00341)

District Judge: Honorable Brian R. Martinotti

____________________________________

Submitted by the Clerk 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, and on 

Appellee’s Motion for Summary Affirmance

March 23, 2018

Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges

(Opinion filed June 7, 2018)

_________

OPINION*

_________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Shaun Rosiere appeals pro se from the order of the United States District Court for 

the District of New Jersey (“the DNJ”) dismissing his civil action as malicious pursuant 

to 28 U.S.C. § 1915(e)(2)(B)(i). We will summarily affirm that order. 

I.

Because we write primarily for the parties, who are familiar with the background 

of this case, we discuss that background only briefly. Between November 2015 and May 

2016, Rosiere initiated eight civil actions against the Government in seven different 

federal district courts, seeking to obtain a host of documents under the Freedom of 

Information Act (“FOIA”), 5 U.S.C. § 552. Each of these pro se cases included FOIA

requests that related to two criminal proceedings brought against Rosiere in the DNJ in 

2008 and 2009, respectively.1

By mid-2017, all of Rosiere’s FOIA cases except the one proceeding in the DNJ 

had been resolved. Three of his cases had been dismissed as malicious under 

§ 1915(e)(2)(B)(i), another had been dismissed as duplicative, and the other three had 

been dismissed due to improper venue.2 On October 12, 2017, the DNJ dismissed his 

remaining FOIA case, concluding that it, too, was malicious under § 1915(e)(2)(B)(i). 

 

1

In Rosiere’s 2008 criminal case, he pleaded guilty to conspiracy to commit mail and 

wire fraud. In his 2009 case, he pleaded guilty to conspiracy to commit wire fraud. In 

2010, the DNJ imposed concurrent 73-month prison terms for those offenses.

2 Rosiere’s appeals in those cases were unsuccessful.
3

Rosiere timely appealed from that dismissal order, and the Government now moves to 

summarily affirm that ruling. 

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review 

the DNJ’s dismissal order for abuse of discretion, see Denton v. Hernandez, 504 U.S. 25, 

33 (1992), except that our review of the underlying legal issues is plenary, see Deutsch v. 

United States, 67 F.3d 1080, 1083 (3d Cir. 1995). We may take summary action if this 

appeal fails to present a substantial question. See 3d Cir. I.O.P. 10.6.

When, as here, a district court has granted a plaintiff leave to proceed in forma 

pauperis pursuant to 28 U.S.C. § 1915, that court shall dismiss the plaintiff’s complaint if 

it is “malicious.” See 28 U.S.C. § 1915(e)(2)(B)(i). To determine whether an action is 

malicious, a court must “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, 67 F.3d at 1086. Here, Rosiere filed his DNJ 

lawsuit on the same day that he filed a nearly identical lawsuit in the United States 

District Court for the District of Colorado, and by that time he had already submitted

another nearly identical lawsuit in the United States District Court for the District of 

Nevada.

3

 Rosiere would go on to file five more FOIA cases within the next few months

 

3 A FOIA action may be brought in (1) the district where the complainant resides, (2) the 

district where the agency records are situated, or (3) the District of Columbia. See 5 

U.S.C. § 552(a)(4)(B). It appears that Rosiere resides in Nevada, and that some of the 
4

(all of which included requests related to his DNJ criminal cases), and he also proceeded 

to inundate the Government with various motions in his DNJ case. These circumstances 

certainly support a finding that, at the time Rosiere initiated his DNJ case, his intent in 

filing the case was to harass the Government. Accordingly, we cannot conclude that the 

DNJ erred in dismissing this case as malicious. 

Because this appeal does not present a substantial question, we hereby grant the 

Government’s motion for summary affirmance, and we will summarily affirm the DNJ’s 

October 12, 2017 order. Rosiere’s request for appointment of counsel is denied. See

Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). 

 

requested FOIA documents were situated in New Jersey and Colorado, respectively.