United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. Rau, U.S. Magistrate Judge
Raphael Mendez - a civilly committed detainee at FMC
Rochester - filed a complaint alleging retaliation under
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). Mendez did not pay a filing fee for this case, but
instead filed an application seeking leave to proceed in
forma pauperis (“IFP”). See ECF
Nos. 2-3. His IFP application is now under consideration by
the Court. For the reasons outlined below, the Court
recommends that the application to proceed IFP be denied and
this action be dismissed for failure to state a claim.
is an active litigant in the federal courts. A search for his
name on Westlaw reveals a dizzying array of cases and
challenges to both the conditions of his confinement and the
confinement itself. Over the years, he has left no legal
stone unturned. He has alleged judicial bias and has brought
freestanding lawsuits against judges in this District
alleging that they “violated his constitutional rights
by dismissing his . . . lawsuit.” Mendez v.
Rosenbaum, 2011 WL 3438493 (D. Minn. 2011); Mendez
v. Federal Bureau of Prisons, 2010 WL 4628978
(8thCir. 2010). He objects to orders and opinions
at every turn. For example, recently, he objected when the
Court ordered him to amend to clarify his confusing
allegations and list of defendants. See Mendez v.
LaRiva, 16-cv-4002 (ADM/BRT), ECF No. 4 (D.Minn. 2016).
When the District Judge overruled his objections, he sought
an interlocutory appeal, which was denied by the Eighth
Circuit, and then sought to have the District Judge removed
from his case for denying his claims. Mendez v.
LaRiva, 16-cv-4002 (ADM/BRT), ECF Nos. 7, 12 (D.Minn.
2016). He has appealed orders denying his motion for free
photocopies, to remove his attorney and to transfer his case
to another district. U.S. v. Mendez, 2014 WL
2925162, 577 Fed.Appx. 166 (4th Cir. 2014); U.S. v.
Mendez, 2016 WL 1638238, 647 Fed.Appx. 201 (4th Cir.
2016); U.S. v. Mendez, 2007 WL 2031449, 238
Fed.Appx. 951 (4th Cir. 2007); In re Mendez, 2008 WL
5531192 (D.C. Cir. 2008).
has filed writs of mandamus repeatedly even though he has
been informed that they are a “drastic remedy.”
In re Mendez, 653 Fed.Appx. 158, 159 (3d Cir. 2016);
In re Mendez, 2005 WL 1530220, 137 Fed.Appx. 502 (3d
Cir. 2005). He has filed petitions that very few people have
ever heard of such as a “petition for a writ of quo
warranto, ” which is apparently a suit against a public
official that can only be brought by the U.S. Attorney or
Attorney General. Mendez v. Members of the U.S.
Gov't, 2011 WL 1215128 (D.D.C. 2011). And he has
challenged his ongoing civil commitment through habeas
petitions and writs of mandamus. See e.g. In re
Mendez, 137 Fed.Appx. 502 (3d Cir. 2005); Mendez v.
Hadden, 1994 WL 83775 (4th Cir. 1994);
Mendez v. BOP, 2009 WL 3856925 (D. Minn. 2009);
Mendez v. Craven, 2008 WL 5640104 (E.D. N.
Carolina); U.S. v. Mendez, 85 F.3d 618
(4th Cir. 1996). These scorched earth tactics are
not successful but Mendez remains undeterred.
time, Mendez has filed a federal lawsuit because a phone
conversation with his brother was disconnected. Mendez's
claims are unclear but he appears to be alleging that a group
of defendants called “Minnesota Employees and Office
Titles AS” and “SIS communication MONITORING
System et al” (as well as FMC Rochester itself)
retaliated against him by cutting off a phone call with his
brother. ECF No. 1 at 3. He alleges that he was not provided
information about the violation that he committed in order to
have his phone conversation terminated or the name of the
employee who disconnected the call. On that basis, it
appears, he “believe[s] that these defendants are
retaliatory in their wrong doings.” ECF No. 1 at 4. He
further alleges that he is “pretty sure that FMC
Rochester . . . is ... obstructing [his] means of
communication to the outside world on subject of [his] false
imprisonment.” ECF No. 1 at 4. As relief, he seeks to
have the Court process all of his communications with the
outside world so that the news media and Congress “can
get their attention focused on Federal Government Corruption
on [his] false imprisonment claim at FMC Rochester.”
ECF No. 1 at 4-5.
application will be denied, and the action will be dismissed,
when an IFP applicant has filed a complaint that fails to
state a cause of action on which relief may be granted.
See 28 U.S.C. § 1915(e)(2)(B)(ii); Atkinson
v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (per
curiam). In reviewing whether a complaint states a claim on
which relief may be granted, this Court must accept as true
all of the factual allegations in the complaint and draw all
reasonable inferences in the plaintiff's favor. Aten
v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir.
2008). Pro se complaints are to be construed liberally, but
they still must allege sufficient facts to support the claims
advanced. See Stone v. Harry, 364 F.3d 912, 914 (8th
the factual allegations in the complaint need not be
detailed, they must be sufficient to “raise a right to
relief above the speculative level . . . .” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
complaint must “state a claim to relief that is
plausible on its face.” Id. at 570. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Court must be able to infer more than a
“mere possibility of misconduct” from the
complaint. Iqbal, 556 U.S. at 679. Rather, a
plaintiff must “nudge his claims . . . across the line
from conceivable to plausible.” Iqbal, 556
U.S. at 680 (citing Twombly). This determination of
whether the complaint states a plausible claim for relief is
“a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 678; see also
Magee v. Trustees of the Hamline University, 747 F.3d
532, 535 (8th Cir. 2014). “Labels and
conclusions” and “'naked assertion[s] devoid
of ‘further factual enhancement'” are
insufficient for a complaint to survive screening for failure
to state a claim. See Iqbal, 556 U.S. at 678.
“[b]ecause vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676; see
also Beck v. LaFleur, 257 F.3d 764, 766 (8th Cir. 2001)
(upholding summary dismissal of civil rights claims because
plaintiff's complaint “failed to allege sufficient
personal involvement by any of defendants to support such a
has not alleged sufficient facts in his complaint to nudge
his retaliation claim from conceivable to plausible. Mendez
implies retaliation based on his conclusion that there is no
other explanation for the termination of his phone call.
These vague allegations are too “indeterminate”
for the Court to infer anything illegal occurred. Braden
v. Wal-Mart Stores, 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678).
it is unclear who Mendez seeks to name as defendants and he
has failed to provide sufficiently specific allegations
against them for the Court to determine who they are let
alone what they each did to him that was illegal.
Mendez's caption describes the defendants as
“Minnesota Employees and Office Titles AS” and
“SIS communication MONITORING System et al.”
These titles are indecipherable and do not meet the
requirement of Rule 8 of the Federal Rules of Civil Procedure
that his allegations be “plain” and
“simple, concise, and direct.” Finally, the
substantive allegations “of retaliation [are]
speculative and conclusory” and Mendez does not
adequately “allege that defendants were involved in or
affected by his previous litigation, [or] allege sufficient
facts upon which a retaliatory animus could be
inferred.” Atkinson v. Bohn, 91 F.3d 1127,
1129 (affirming dismissal of retaliation claim by a prisoner
under the more lenient pleading standard of Conley v.
Gibson, 355 U.S. 41 (1957)). Mendez seeks to have the
Court imply retaliation by unknown defendants
because he has filed other lawsuits. At this
juncture, however, Mendez's other lawsuits make his
allegations less, not more, plausible. He has been informed
of the pleading requirements before and has once again
presented the Court with vague allegations against a baffling
list of defendants. See Mendez v. LaRiva, 16-cv-4002
(ADM/BRT), ECF No. 3 (D.Minn. 2016).
past, the Court has provided Mendez with the opportunity to
amend his complaint when he failed to state a claim but
Mendez relentlessly challenged the order that provided him
with that opportunity. See Mendez v. LaRiva,
16-cv-4002 (ADM/BRT), ECF No. 4 (D.Minn. 2016). Mendez has
been informed of the pleading requirements before and has
nonetheless filed another complaint that does not meet them.
In the interests of judicial economy, the Court will
therefore proceed directly to recommending dismissal. The
federal in forma pauperis statute “is designed
to ensure that indigent litigants have meaningful access to
the federal courts.” Neitzke v. Williams, 490
U.S. 319, 324 (1989) (citing Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 342-43 (1948). The flip
side of that coin, however, is that “a litigant whose
filing fees and court costs are assumed by the public, unlike
a paying litigant, lacks an economic incentive to refrain
from filing frivolous, malicious, or ...