80 F.R.D. 686 | W.D. Mo. | 1978
MEMORANDUM AND ORDER DISMISSING CAUSE UNDER 28 U.S.C. § 1915(d)
Under the provisions of Section 636, Title 28, United States Code, and in accordance with the provisions of the Special Order of the Court en banc of December 22, 1976, and Local Rule 26 of this Court, the above-styled civil rights action was referred to the United States magistrate for the hearing and determining of all pretrial and prehearing matters under Subsection (b)(1)(A) of Section 636, supra, and the making of proposed findings of fact and recommendations with respect to the disposition of actions and the taking of other actions under Subsection (b)(1)(B) of Section 636, supra. Following that reference, the United States magistrate, on November 10, 1978, entered his Report and Recommendation that the cause be dismissed as “malicious” under the provisions of Section 1915(d), Title 28, United States Code.
The Report and Recommendation of the United States magistrate should be and is adopted and the cause should be dismissed under Section 1915(d), supra. A review of the entire case file in this cause, including all pleadings and other documents, convinces the Court that the United States magistrate would, in all proper cases, grant a hearing upon colorably valid claims raised by any litigant. But here, however, the plaintiff has had a long established pattern of harassment and bad faith. See Green v. Wyrick, 428 F.Supp. 732, 735-36 (W.D.Mo.1976). And, it is readily determinable from the files herein that this cause has been initiated in bad faith, apparently for the purposes of harassment. For example, in the instant cause plaintiff sets forth a number of miscellaneous-type claims, many, if not all, of which have previously been presented in prior actions. Moreover, the factual allegations supporting these asserted claims set forth little or no detail so as to give the Court any opportunity to really determine if a civil rights violation has occurred. And finally, it is noteworthy that this cause is one of seven filed by plaintiff within a period of approximately one month, each naming as defendants various and diverse persons.
Upon careful, independent consideration of the case file herein, it is completely clear that once again plaintiff is not presenting in good faith any civil rights claim not unsuccessfully previously presented. The record in this case affirmatively shows
For all of the foregoing reasons, it is therefore
ORDERED and ADJUDGED that the above-styled cause should be, and it is hereby, dismissed as “malicious” under the provisions of Section 1915(d), Title 28, United States Code.
APPENDIX
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE THAT THE CAUSE BE DISMISSED AS “MALICIOUS” UNDER THE PROVISIONS OF 28 U.S.C. § 1915(d)
RICHARD H. RALSTON, Magistrate.
Plaintiff, a state prisoner at the Missouri State Penitentiary at Jefferson City, Missouri, and perhaps the most prolific “writ-writer” in the nation, has provisionally filed in forma pauperis a complaint under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its corresponding jurisdictional statute, 28 U.S.C. § 1343(3), seeking to litigate some sixteen (16) diverse claims concerning the conditions of his confinement,-the majority of which he has presented in prior pleadings and actions. He seeks declaratory and injunctive relief and damages in the amount of $1,000,000. Named as parties defendant are Donald R. Jenkins, Director of the Missouri Division of Corrections, and Donald W. Wyrick, Warden of the Missouri State Penitentiary. Following the provisional filing of this cause in forma pauperis, it was referred to the undersigned United States magistrate for processing in accordance with the provisions of 28 U.S.C. § 636; the Special Order of the Court en banc of December 22,1976, providing for the reference of such actions; and Local Rule 26 of the United States District Court for the Western District of Missouri. This action is one of seven filed by plaintiff within a period of approximately one month.
While plaintiff has been granted provisional leave to proceed in forma pauperis,
It is quite clear that Congress, while intending to extend to poor and meritorious*689 suitors the privilege of having their wrongs redressed without the ordinary burdens of litigation, at the same time intended to safeguard members of the public against an abuse of the privilege by evil-minded persons who might avail themselves of the shield of immunity from costs for the purpose of harassing those with whom they were not in accord, by subjecting them to vexatious and frivolous legal proceedings.
Quoted with approval in Duhart v. Carlson, 469 F.2d 471, 478 (10th Cir. 1972), cert. den. 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692 (1973). Subsection (d) of Seciion 1915, supra, thus “empowers the court to monitor the action to the end of avoiding or minimizing abusive prosecutions of civil actions in forma pauperis by indigent defendants who seek to exploit or to abuse the generous purposes of the statute.” Mann v. Leeke, 73 F.R.D. 264, 265 (D.S.C.1974), aff’d 551 F.2d 307 (4th Cir. 1977). See, generally, Note, Petitioner to Sue in Forma Pauperis: Standards and Procedures for the Exercise of Judicial Discretion, 56 Boston L.Rev. 745, 746, 747 (1976).
As indicated by Judge Elmo B. Hunter, in Green v. Wyrick, 428 F.Supp. 732, 735 (W.D.Mo.1976), and Green v. Garrott, 71 F.R.D. 680 (W.D.Mo.1976), and by a substantial number of other federal jurists, plaintiff has “a continuing history of engaging in gross abuse of the judicial process which is impeding the ability of the judiciary to carry out its proper functions.” This willful abuse of process has also been conducted in the state courts, as illustrated by a recent state court characterization of plaintiff’s activities as “a calculated abuse of process of the same or similar nature as that condemned by the federal district court.” Clovis Carl Green, Jr. v. State of Missouri, Civil Action No. 78 2824 (Mo.Cir.Ct., 8/24/78, unpublished opinion). A partial catalogue of the literally “hundreds” of lawsuits initiated by plaintiff, involving both the trial and appellate courts of the state and federal judicial systems, appears in Green v. Garrott, 71 F.R.D. 680, 685-92 (W.D.Mo.1976), and Green v. Wyrick, 414 F.Supp. 343, 353 (W.D.Mo.1976). To that list should be added the thirty-four additional actions plaintiff has filed in this Court since the compilation of that listing: Clovis Carl Green, Jr. v. Donald Wyrick, Civil Action No. 76 CV 158-C (W.D.Mo.1976); Clovis Carl Green, Jr. v. Donald Wyrick, Civil Action No. 76 CV 173-C (W.D.Mo.1976); Clovis Carl Green, Jr. v. Donald Wyrick, Civil Action No. 76 CV 180-C (W.D.Mo.1976); Clovis Carl Green, Jr. v. Donald Wyrick, Civil Action No. 76 CV 183-C (W.D.Mo.1976); Clovis Carl Green, Jr. v. Donald Wyrick, Civil Action No. 76 CV 186-C (W.D.Mo.1976); Clovis Carl Green, Jr. v. Donald Wyrick, Civil Action No. 76 CV 206-C (W.D.Mo.1976) ; Clovis Carl Green, Jr. v. Edward Haynes, et al., Civil Action No. 76 CV 205-C (W.D.Mo.1976); Clovis Carl Green, Jr. v. Edward Haynes, Civil Action No. 77 4106 CV-C (W.D.Mo.1977); Clovis Carl Green, Jr. v. Carl White, et al., Civil Action No. 77 4026 CV-C (W.D.Mo.1977) ; Clovis Carl Green, Jr. v. Missouri Board of Probation and Parole, Civil Action No. 77 4306 CV-C (W.D.Mo.1977); Clovis Carl Green, Jr. v. Director, Missouri Division of Corrections, et al., Civil Action No. 77 4315 CV-C (W.D.Mo.1977); Clovis Carl Green, Jr. v. State of Missouri, et al., Civil Action No. 78 4027 CV-C (W.D.Mo.1978); Clovis Carl Green, v. Donald W. Wyrick, et al., Civil Action No. 78 4028 CV-C (W.D.Mo.1978); Clovis Carl Green, Jr. v. Donald W. Wyrick, et al., Civil Action No. 78 4055 CV-C (W.D.Mo.1978); Clovis Carl Green, Jr. v. Donald W. Wyrick, Civil Action No. 78 4056 CV-C (W.D.Mo.1978); Clovis Carl Green, Jr. v. Missouri Division of Corrections, Civil Action No. 78 4057 CV-C (W.D.Mo.1978); Clovis Carl Green, Jr. v. Donald W. Wyrick, Civil Action No. 78 4058 CV-C (W.D.Mo.1978); Clovis Carl Green, Jr. v. United States of America, et al., Civil Action No. 78 0055 CV-4-R (W.D.Mo.1978); Clovis Carl Green, Jr. v. Director, Missouri Division of Corrections, Civil Action No. 78 4106 CV-4-R (W.D.Mo.1978); Clovis Carl Green, Jr. v. Donald W. Wyrick, et al., Civil Action No. 78 4107 CV-C (W.D.Mo.1978); Clovis Carl Green, Jr. v. Donald W. Wyrick, et al., Civil Action No. 78 4148 CV-C (W.D.Mo.1978);
In Green v. Wyrick, Misc. No. 76-8096 (8th Cir., June 3, 1976, unpublished opinion), the United States Court of Appeals stated, “[T]here is strong reason to believe that [Clovis Carl Green, Jr.,] may'be seriously abusing his right to access to the courts for redress for grievances . . As evidenced by the foregoing, that belief is a reality. As stated by Judge Donald P. Lay, in Green v. Garrott, Misc. No. 76-8184 (8th Cir., Nov. 2, 1976, unpublished opinion):
[T]hrough gross abuse of the legal process, Green’s situation runs parallel with the epic story of the boy who yelled “wolf” too many times — when he actually needed help nobody would believe him. It may be that within the multitude of claims Mr. Green has filed, he has somewhere alleged a legitimate grievance. Notwithstanding the meticulous efforts of busy federal district and appellate*693 judges to find a real grievance, one may nonetheless have been overlooked. Mr. Green has only himself to blame for this. In addition, primarily due to abusive writ writing by prisoners such as Green, the Supreme Court unfortunately in my opinion, has begun to place substantive and procedural restrictions on prisoners’ rights previously recognized under the Great Writ. Cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) * * * It is common sense that conscientious recognition of prison rights can continue only as long as the process is not abused by prisoners to the extent that renders it meaningless. We are coming dangerously close to that time.
And, judging from his correspondence addressed to this Court, plaintiff intends to continue his abuse of process at an accelerated, continued and unabated pace. For, by letter received by the Court on November 1, 1978, plaintiff states, “I have completed the ten separate civil rights complaints that are ready to be notarized and mailed” and requests, “[pjlease send me another ten more civil rights complaint forms and five more sets for filing habeas corpus petitions at once, as I wish to file more court suits.” Moreover, plaintiff’s intentional abuse of process extends beyond the mere filing of civil actions in the state and federal courts. In virtually every case, plaintiff has made the task of orderly processing extremely difficult, if not impossible, by the submission, often ex parte, of countless motions and documents and his deliberate avoidance of compliance with procedural rules. Green v. Wyrick, 428 F.Supp. 732, 736 (W.D.Mo.1976); and Clovis Carl Green, Jr. v. Carl White, et al., Civil Action No. 77 4026 CV-C (W.D.Mo.).
Aside from the sheer quantity of plaintiff’s litigation, the quality of his claims also demonstrates the maliciousness of the legal actions which he has initiated against prison officials, court personnel, and judicial officers. For example, in the cases styled Clovis Carl Green, Jr. v. Donald Wyrick, et al., Civil Action No. 77 4315 CV-C (W.D.Mo.), and Clovis Carl Green, Jr. v. Missouri Board of Probation and Parole, et al., Civil Action No. 77 4306 CV-C (W.D.Mo.), plaintiff alleged that prison disciplinary actions had been, and were continuing to be, initiated against him by prison officials, resulting in his confinement in segregated units, in retaliation for his legal activities and for his attempts to proselytize on behalf of his newly-founded “religion.” After a full three-day evidentiary hearing, at which plaintiff was represented by able counsel, appointed by the Court, it was clearly evident that “in each instance of disciplinary action shown . . ., plaintiff [had] not been disciplined for his legal activities, but rather for clear violations of prison rules and regulations.” Id. (unpublished Report and Recommendation of May 10, 1978). And a later evidentiary hearing set in those cases, the purpose of which was to adjudicate plaintiff’s “religious” claims, was aborted by his dismissal of those actions. Another evidentiary hearing, set in the cause styled, Clovis Carl Green, Jr. v. Donald Wyrick, Civil Action No. 78 4216 CV-C (W.D.Mo.), to determine his claim that other inmates and prison supervisory personnel had physically abused him, was again dismissed by plaintiff on the morning of trial. Thus, it is clear that, in virtually every instance in which plaintiff’s claims have appeared colorably valid on the face of his pleadings, an evidentiary probing of those claims has revealed total insubstantiality. See: Green v. Wyrick, 428 F.Supp. 732, 763 (W.D.Mo.1976), and Green v. United States of America, et al., Civil Action No. 76 CV-100-C (E.D.Mo.1976).
“[N]o one, rich or poor, is entitled to abuse the judicial process.” Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975); Ex parte Tyler, 70 F.R.D. 456 (W.D.Mo.1976). Accordingly, in light of plaintiff’s history
For the reasons stated above, and pursuant to the provisions of 28 U.S.C. § 636, it is therefore
RECOMMENDED that the above-styled cause be dismissed as “malicious” under 28 U.S.C. § 1915(d).
Under the provisions of 28 U.S.C. § 636(b)(1)(C) plaintiff may make specific written exceptions to any or all of the foregoing recommendations within 10 days of his receipt thereof.
Dated this 10th day of November, 1978, at Kansas City, Missouri.
It is the practice of this Court to provisionally file those actions in which leave to proceed in forma pauperis is requested, and then proceed to a determination of whether or not the applicant is eligible under Section 1915, supra. A determination of “frivolity” or “maliciousness” may then be made at any stage of the subsequent proceedings.
A court “has authority to consult its own records for the purpose of determining whether an action being prosecuted in forma pauperis, notwithstanding the application so to do and the supporting affidavit are regular and sufficient on their face, is in fact frivolous and malicious,
