Filed: Jul. 09, 2013
Latest Update: Feb. 12, 2020
Summary: GLD-297, 298, 299, 300 and 301 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2123 _ ROY A. DAY, Appellant v. DETECTIVE DANIEL TONER; DONNA H. NEWTON; PASCO COUNTY SHERIFF'S DEPARTMENT _ No. 13-2124 _ ROY A. DAY, Appellant v. DEBRA ROBERTS; CHRIS SPROWLS; LYNDA BARACK; SABRINA FARIDES; ELAINE HORNE; LAURIE NOURSE; STANLEY R. MILLS; ELIZABETH KOVACHEVICH; SUSAN H. BLACK; J.L. EDMONDSON _ No. 13-2125 _ ROY A. DAY, Appellant v. DANIEL DISKEY; BRIAN AUNGST, JR.; MARY
Summary: GLD-297, 298, 299, 300 and 301 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2123 _ ROY A. DAY, Appellant v. DETECTIVE DANIEL TONER; DONNA H. NEWTON; PASCO COUNTY SHERIFF'S DEPARTMENT _ No. 13-2124 _ ROY A. DAY, Appellant v. DEBRA ROBERTS; CHRIS SPROWLS; LYNDA BARACK; SABRINA FARIDES; ELAINE HORNE; LAURIE NOURSE; STANLEY R. MILLS; ELIZABETH KOVACHEVICH; SUSAN H. BLACK; J.L. EDMONDSON _ No. 13-2125 _ ROY A. DAY, Appellant v. DANIEL DISKEY; BRIAN AUNGST, JR.; MARY F..
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GLD-297, 298, 299, 300 and 301 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2123
___________
ROY A. DAY,
Appellant
v.
DETECTIVE DANIEL TONER; DONNA H. NEWTON; PASCO COUNTY
SHERIFF'S DEPARTMENT
___________
No. 13-2124
___________
ROY A. DAY,
Appellant
v.
DEBRA ROBERTS; CHRIS SPROWLS; LYNDA BARACK;
SABRINA FARIDES; ELAINE HORNE; LAURIE NOURSE;
STANLEY R. MILLS; ELIZABETH KOVACHEVICH;
SUSAN H. BLACK; J.L. EDMONDSON
___________
No. 13-2125
___________
ROY A. DAY,
Appellant
v.
DANIEL DISKEY; BRIAN AUNGST, JR.; MARY FLANERTY
___________
No. 13-2126
___________
ROY A. DAY,
Appellant
v.
WAL-MART STORES INC.; JAMES SCHRODER
___________
No. 13-2127
___________
ROY A. DAY,
Appellant
v.
SHERIFF BOB WHITE; PASCO COUNTY SHERIFF'S DEPARTMENT; MAJOR
BRIAN HEAD
__________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Nos. 1:12-cv-01715; 1:12-cv-01716; 1:12-cv-01717;
1:12-cv-01718; 1:12-cv-01719)
District Judge: Honorable Leonard P. Stark
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 27, 2013
Before: FUENTES, FISHER and VANASKIE, Circuit Judges
(Opinion filed: July 9, 2013)
_________
OPINION
_________
2
PER CURIAM
Pro se Appellant Roy A. Day appeals the District Court’s order dismissing his
complaints as frivolous and malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). For the
reasons set forth below, will summarily affirm the District Court’s judgment. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
Because we primarily write for the parties, we will recite only the facts necessary
for our discussion. Day has a history of vexatious and abusive litigation. See In re Roy
Day Litigation, 976 F. Supp. 1455 (M.D. Fla. 1995). By 1995, he had filed over sixty
lawsuits.
Id. at 1456. Accordingly, the District Court ordered that all actions filed by
Day be screened by a Magistrate Judge to determine whether the filing was frivolous. If
the Magistrate Judge concluded that they were frivolous, Day would be subject to a
sanction of not less than $1,000 per case. See In re Roy Day Litig.,
976 F. Supp. 1460
(M.D. Fla. 1995).1 Thereafter, a $4,000 sanction was imposed against Day for four
frivolous filings. See In re Roy Day Litigation, No. 95-143,
2011 WL 550207, at *1
(M.D. Fla. Feb. 9, 2011). Undeterred, Day continued to submit complaints, resulting in
an order directing the Clerk of Court to not accept any further filings by Day until he
satisfied the monetary sanctions.
Id. Despite this order, in 2011, Day attempted to file
five civil complaints in the Middle District of Florida arising from his 2009 conviction
1
The United States Supreme Court and the District Court of Appeal of Florida, Second
District, have also concluded that Day is a vexatious litigant. See Day v. Day,
510 U.S. 1
(1993); Day v. Vinson,
713 So. 2d 1016 (Fla. Dist. Ct. App. 1998).
3
for criminal misdemeanor stalking. Id. at *2.2 Four of these five complaints were found
to be frivolous.
Id. at **2-4.3
In an apparent attempt to avoid the Florida sanctions, Day filed the same five
complaints he tried to file in the Middle District of Florida in the United States District
Court for the District of Delaware, which dismissed sua sponte his complaints as
frivolous and malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).4 The District Court
also ordered Day to show cause why he should not be enjoined from filing any lawsuits
related to his 2009 conviction for criminal misdemeanor stalking in the United States
District Court for the District of Delaware.5 This appeal followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 129. We review a district court’s
decision to dismiss a complaint as frivolous or malicious for abuse of discretion. See
Denton v. Hernandez, 504 U.S. 25, 33 (1992). We may summarily affirm if the appeal
2
A co-worker at Wal-Mart accused Day of stalking her, after which he was terminated,
and as a result of the conviction, he was sentenced to 300 days in the Pasco County
Detention Center. See In Re Roy Day Litigation,
2011 WL 5500207, at * 2.
3
While the Court concluded that the fifth complaint contained potentially non-frivolous
allegations and, thus, was amendable to amendment, it held that Day could not file an
amended complaint due to the outstanding unpaid sanctions. See In Re Roy Day
Litigation,
2011 WL 5500207, at * 4.
4
Day also filed two additional complaints in the United States District Court for the
District of Delaware arising from his 2009 conviction for criminal misdemeanor stalking.
See Day v. Ibison, Civ. No. 12-1566-LPS and Day v. State of Florida, Civ. No. 12-1567-
LPS. Their appeals are pending in this Court. See C.A. No. 13-2122 and C.A. No. 13-
2123.
4
does not present a substantial question, and may do so on any basis supported by the
record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
III.
The District Court dismissed four of the five complaints on the basis of
maliciousness because they are identical to the lawsuits the United States District Court
for the Middle District of Florida found to be frivolous.6 See In re Roy Day, 2011 WL
550207, at ** 2-4. Because 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),
we agree with the District Court that the complaints were properly dismissed in this
instance.
Regarding the fifth case, Civ. No. 1719-LPS, we agree with the District Court that
the claims are time-barred. Day brought claims against Sheriff Bob White, Pasco
County’s Sheriff’s Department, and Major Brian Head, pursuant to 42 U.S.C. § 1983 and
42 U.S.C. § 1985, challenging the conditions of confinement while he was detained at the
Pasco County Detention Center in Land O’Lakes Florida, from October 9, 2009 through
5
To date, Day has not filed any pleadings in the United States District Court for the
District of Delaware in response to this order, and the District Court has not issued an
injunction foreclosing Day from filing any lawsuits in its court.
6
The four cases are Civ. Nos. 12-1715-LPS, 12-1716-LPS, 12-1717-LPS, and 12-1718-
LPS.
5
August 6, 2010.7 Day filed the complaint in the United States District Court for the
District of Delaware on December 17, 2012. A complaint pursuant to § 1983 is
“characterized as a personal injury claim and thus is governed by the applicable state’s
statute of limitations for personal-injury claims.” Dique v. N.J. State Police, 603 F.3d
181, 185 (3d Cir. 2010) (citing Cito v. Bridgewater Twp. Police Dep’t,
892 F.2d 23, 25
(3d Cir. 1989). In Delaware, § 1983 claims are subject to Delaware’s two-year statute of
limitations on personal injury actions. Johnson v. Cullen,
925 F. Supp. 244, 248 (D. Del.
1996); see also Del. Code Ann. tit. 10, § 8119. Therefore, because Day filed his
complaint over two years after he was released from the Pasco County Detention Center,
his complaint was properly dismissed and we find no basis in the record to invoke the
doctrine of equitable tolling.
IV.
For the foregoing reasons, no substantial question is presented and we will affirm
the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.8 Appellant’s
outstanding motions are denied.
7
This is the complaint about which the United States District Court for Middle District of
Florida concluded that it was “not prepared to say that [it] lacks non-frivolous
allegations.” In Re Roy Day Litigation, 2011 WL 5500207, at * 4.
8
We agree with the District Court that amendment to Day’s complaints would be futile.
See Grayson v. Mayview State Hosp.,
293 F.3d 103, 114 (3d Cir. 2002).
6
