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Carlone v. Heat and Frost Insulators and Allied Workers Local 34

United States District Court, D. Minnesota

October 23, 2014

Patrick A. Carlone, Plaintiff,
v.
Heat and Frost Insulators and Allied Workers Local 34, Defendant.

Patrick A. Carlone, 377 Toronto Street, St. Paul, MN 55102, pro se Plaintiff.

Brendan D. Cummins, Cummins & Cummins, PLLP, 1245 International Centre, 920 Second Avenue South, Minneapolis, MN 55402, on behalf of Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

Before the undersigned United States District Court Judge are Plaintiff Patrick A. Carlone's Objections [Doc. No. 10] to the June 2, 2014 Order and Report and Recommendation ("Order/R & R") issued by Magistrate Judge Janie S. Mayeron [Doc. No. 9]. For the reasons set forth below, Plaintiff's Objections are overruled, and the Court adopts the Order/R & R in its entirety.

I. BACKGROUND

Plaintiff filed this lawsuit on March 3, 2014, alleging "Black List, Conspiracy, Trade Infringements, Discrimination, Fraud, Terroristic Threats, and Malicious Prosecution" against Defendant Heat and Frost Insulators and Allied Workers Local 34 ("Local 34"). (Compl. at 1 [Doc. No. 1].) The allegations arise out of a number of incidents concerning Carlone's membership in Local 34 and employment with Heat and Frost Insulators. (Id.) On March 3, 2014, Plaintiff also filed an Application to Proceed in District Court without Prepaying Fees or Costs [Doc. No. 2]. Shortly thereafter, the magistrate judge ordered that all actions in this case be stayed pending the resolution of a related case, Carlone v. Asbestos Workers Local 34, 13-CV-783 (SRN/JSM) (D. Minn.) (hereafter "No. 13-783"). (Order of 3/14/14 [Doc. No. 4].)

In the Order/R & R, Magistrate Judge Mayeron lifted the stay, and recommended that Plaintiff's application for leave to proceed in forma pauperis ("IFP") [Doc. No. 2] be denied and that the action be summarily dismissed. (Order/R & R at 6-7 [Doc. No. 9].) Carlone subsequently filed the instant Objections with the Eighth Circuit Court of Appeals, styling the filing as "Appeal to Court Order and Report/Recommendation." [Doc. No. 10]. The Eighth Circuit reviewed Carlone's submission and dismissed the appeal as premature. (8th Cir. Judgment [Doc. No. 17].) Following the Eighth Circuit's issuance of a mandate, this Court now has jurisdiction to entertain Plaintiff's Objections. Carlson v. Hyundai Motor Co. , 222 F.3d 1044, 1045 (8th Cir. 2000) (observing that issuance of a mandate formally ends appellate jurisdiction and returns jurisdiction to the court to which the mandate is directed).

As the magistrate judge noted in the Order/R & R, the present lawsuit is not the first lawsuit that Plaintiff has initiated against Defendant Local 34 and persons or entities associated with it. (Order/R & R at 1-3 [Doc. No. 9].) Plaintiff has filed similar lawsuits on numerous occasions in both federal and state court, including No. 13-783, a case in which Plaintiff sued Defendant Local 34 alleging "intentional negligence." (Id. at 2.) Magistrate Judge Mayeron recommended that No. 13-783 be dismissed with prejudice because the complaint failed to state a viable claim for relief. (Id.) In that case, this Court adopted the magistrate judge's recommendation and dismissed No. 13-783 with prejudice on April 24, 2014. (Id.)

In the Order/R & R to which Plaintiff objects in this case, the magistrate judge recommended the denial of Plaintiff's application for leave to proceed in forma pauperis because the underlying action is both frivolous and malicious. (Id. at 4, 6.) For the same reason, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), the magistrate judge recommended the dismissal of Plaintiff's action. (Id. at 6-7.)

II. DISCUSSION

A. Standard of Review

A party "may file and serve specific written objections to a magistrate judge's proposed findings and recommendations." D. Minn. L. R. 72.2(b)(1). The district court reviews de novo those portions of a report and recommendation relating to a dispositive motion and to which an objection is made and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); accord D. Minn. LR 72.2(b). Because Plaintiff objects only to the dispositive recommendations in the Order/R & R - the recommendations concerning his IFP status and the dismissal of his lawsuit - the de novo standard of review applies.

B. Objections

Plaintiff raises numerous objections to the Order/R & R which this Court construes as follows: (1) Plaintiff's application to proceed in forma pauperis was wrongfully denied, (2) the Order/R & R reflects bias and prejudice, (3) Plaintiff was wrongfully denied his right to conduct discovery, (4) Plaintiff disputes the magistrate judge's finding that Plaintiff has filed many frivolous cases against the Defendant; and (5) Plaintiff reasserts many of the claims alleged in his Complaint. In light of Plaintiff's pro se status, the Court construes his objections liberally. See Williams v. Carter , 10 F.3d 563, 567 (8th Cir. 1993) (noting that pleadings and other documents filed by pro se litigants should ...


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