ALD

- 157 NOT PRECEDENTIAL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

___________ No. 1 7

- 3306

___________ SHAUN ROSIERE ,

Appellant

v.
UNITED STATES OF AMERICA

____________________________________ On Appeal from the United States Dis trict 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 Sum mary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 , and on

Appellee’s Mo tion 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 C ourt 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). W e will summarily affirm that order

. I.
Becaus e 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 d istrict 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 FOI A requests that relate d to two criminal proceedings bro ught 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. T hree of his cases had been dismissed as malicious under § 1915(e)(2)(B)(i) , another had been dismissed as duplicative, and the other t hree had
been dismissed due to improper venue. 2 O n Octob er 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 fra ud. 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 mov es 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 , s ee 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. S ee 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 “eng age 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 t he sam e day that he filed a nearly identical lawsui t in the United States
District Court for the District of Colorado, and by that time he had already submitted another nearly identical lawsuit in th e United States District Court for the District of
Nevada

. 3 Rosiere would go on to file f ive more FOIA cases within the next few months

3 A FOIA action may be brought in (1) the dist rict 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 the4

(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 dismiss ing this case as malicious. Because this appeal does n ot 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 situat ed in New Jersey and Colorado, respectively.