Summary
requiring prefiling certification by attorney or a magistrate judge
Summary of this case from Greene v. Office of Comptroller of CurrencyOpinion
Case No. C-1-00-794
April 26, 2001
ORDER
This matter is before the Court upon petitioner's motion for default judgment and summary judgment against respondents Guy C. Guckenberger, Neal Zoliner, and Monica Gaynor and motion for hearing/oral argument (doc. 4), respondent Zoilner's motion to dismiss (doc. 5), respondent Guekenberger's motion to dismiss and for sanctions (doc. 7), petitioner's motion for order to decide motion and to extend time to respond to respondent's motion (doc. 8), petitioner's motion to amend the petition and for hearing (doc. 11), petitioner's motion for hearing on motions and for transfer (doc. 14), and petitioner's motion for findings of fact and conclusions of law (doc. 15). An oral hearing was held in open court on April 3, 2001, at which the parties presented oral arguments.
The motion to dismiss is captioned "Defendant Officer Neal Zollner's Motion to Dismiss". The motion, however, is apparently brought by both Officer Zollner and Officer Gaynor since the argument section of the motion addresses petitioner's claims against Officer Gaynor. Moreover, the attorney for the City who appeared at oral argument and argued in favor of dismissal of the complaint appeared on behalf of both officers.
Procedural History
Upon payment of the $5.00 fee required under 28 U.S.C. § 1914 (a) for commencing a federal habeas corpus action, petitioner filed on September 20, 2000 a petition entitled "Petition For Habeas Corpus, Mandamus, Procedendo, Coram Nobis, Expungement, Recovery For Sexual Harassment, Unlawful, and Unconstitutional Arrest" against Hamilton County, Ohio, Municipal Court Judge Guy C. Guckenberger and Cincinnati police officers Neal Zollner and Monica Gaynor. ( See Doc. 1).
In his habeas corpus petition, petitioner alleges he and another individual, David Becker, were sexually harassed and unlawfully "stopped, seized, interrogated, and arrested" by Officers Zollner and Gaynor on the Jewish Sabbath, Friday evening, September 23, 1994, in violation of their constitutional rights. ( Id.., p. 3). Petitioner avers that Officer Zollner issued a "traffic ticket" charging him with "jaywalking — against the traffic control" in violation of a Cincinnati municipal ordinance and that Becker was frisked and charged with "pedestrian violation — crossed against light at above location — causing cars to slow down" by Officer Gaynor. ( Id.., pp. 4-6). Apparently, the charge against Becker was dismissed. ( Id.., p. 7). However, petitioner was convicted of the jaywalking offense charged against him on October 24, 1994. ( Id.., p. 8). In 1998, petitioner sought post-conviction relief in proceedings apparently presided over by Judge Guckenberger. Petitioner alleges that from March 31, 1997 to October 28, 1999, Judge Guckenberger denied him post-conviction relief, without stating findings of facts and conclusions of law and without proceeding to a final appealable order, in retaliation for petitioner's exercising his constitutional rights. ( Id.., pp. 10-12). As relief, it appears petitioner is seeking damages, as well as a court order declaring that his October 24, 1994 conviction is "null and void" and subject to expungement from his record. (See Id.., pp. 12-14).
Respondents move to dismiss the complaint on the grounds that petitioner's claims against them are barred by the statute of limitations and by issue and claim preclusion, petitioner has no grounds for relief in the form of "habeas corpus, mandamus, procedendo and coram nobis", the federal court should abstain from involving itself in an underlying state criminal proceeding, and respondent Guckenberger is absolutely immune from petitioner's claims for money damages. Respondents also move for sanctions against petitioner for his alleged abuse of judicial process.
Opinion
Petitioner's motion for default judgment is not well-taken and is denied. The proposed amendment to the petition would be futile, and petitioner's motion to amend is therefore denied. Petitioner's motion to transfer has no meritorious basis and is denied. Petitioner's motions for hearings are moot since the Court has held a hearing in this matter and the matter can be decided based on the parties' arguments and the record before the Court. Petitioner's motion for findings of fact and conclusions of law is moot. The undisputed facts and the Court's conclusions of law are incorporated in this opinion.
It appears from this Court's records that petitioner previously filed a petition "for habeas corpus and coram nobis" with this Court against Judge Guckenberger and others based on the same factual allegations, which was dismissed with prejudice on March 13, 1999. See May v. Guckenberger, No. C-1-98-694 (Beckwith, J.) (Docs. 13, 14). The record in that case disclosed that petitioner was only fined for the September 1994 jaywalking offense, and was not sentenced to a pnson term.
To the extent petitioner seeks federal habeas corpus relief in this action, his petition must be dismissed for lack of jurisdiction. The federal habeas corpus statutes give the United States district courts jurisdiction to review habeas corpus petitions only from persons " in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a) and 2241(c)(3) (emphasis added); see Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam). Petitioner is not "in custody" within the meaning of the federal habeas corpus statutes, 28 U.S.C. § 2241 (c)(3) and 2254(a). Petitioner is not alleging he is being held in custody in violation of the Constitution or laws or treaties of the United States. Rather, he is challenging the issuance of a traffic citation against him on the Jewish Sabbath six years ago. Although petitioner alleges he was convicted of the offense charged in the citation and challenges the state post-conviction proceedings he initiated to contest his conviction, he was not imprisoned or otherwise placed in the state's custody as a result of that conviction.
In order to satisfy the "in custody" requirement, the petitioner must be in custody under the conviction or sentence being challenged at the time his petition is filed. Maleng, 490 U.S. at 490-91. Although he need not be physically confined, the actual or potential restraint on his liberty must be severe and immediate, such as when the petitioner is released on parole, probation or bail. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894 (2nd Cir.) (citing Hensley v. Municipal court, 411 U.S. 345, 351 (1973)), cert. denied, 519 U.S. 1041 (1996); see also Maleng, 490 U.S. at 491. Collateral consequences of a conviction, such as the inability to engage in certain businesses, to vote or to hold public office, are insufficient to satisfy the "in custody" jurisdictional prerequisite for habeas corpus review. Maleng, 490 U.S. at 49 1-92; Ward v. Knoblock, 738 F.2d 134, 138-39 (6th Cir. 1984), cert. denied, 469 U.S. 1193 (1985). A conviction resulting only in a cash fine or a short-lived suspension of privileges also fails to trigger the custody requirement, because the sentence imposed does not amount to a sufficiently severe restraint on liberty. See, e.g., Barry v. Bergen County Probation Dep't, 128 F.3d 152, 160 (3rd Cir. 1997), cert. denied, 522 U.S. 1136 (1998); Poodry, 85 F.3d at 894 (and cases cited therein); Dremann v. Francis, 828 F.2d 6, 7 (9th Cir. 1987) (per curiam) (citing Spring v. Caldwell, 692 F.2d 994 (5th Cir. 1982)); Lillios v. New Hampshire, 788 F.2d 60, 61 (1st Cir. 1986) (per curiam) (and cases cited therein); Hanson v. Circuit Court of the First Judicial Circuit of Illinois, 591 F.2d 404, 405-07 (7th Cir.), cert. denied, 444 U.S. 907 (1979); Phelps v. Barbara, 162 F.3d 1174 (table), No. 97-3385, 1998 WL 703433, at **2 (10th Cir. Oct. 7, 1998) (unpublished) (per curiam), cert. denied, 525 U.S. 1146 (1999); Malcolm v. Jones, 873 F.2d 1439 (table), No. 88-7294, 1989 WL 42518 (4th Cir. Apr. 27, 1989) (unpublished) (citing Wright v. Bailey, 544 F.2d 737, 739 (4th Cir. 1976), cert. denied, 434 U.S. 825 (1977)), cert. denied, 493 U.S. 897 (1989); cf United States v. Watroba, 56 F.3d 28, 29 (6th Cir.) (involving habeas petition challenging federal sentence under 28 U.S.C. § 2255), cert. denied, 516 U.S. 904 (1995). Because only a fine was imposed in this case, and petitioner was not otherwise subjected to a severe and immediate restraint on his liberty under the conviction challenged in the instant petition at the time he filed the petition, the "in custody" prerequisite for federal habeas corpus jurisdiction has not been met. Accordingly, petitioner's claims do not give rise to any issues that may be remedied in a federal habeas corpus proceeding.
In addition, it appears petitioner's claims for relief may be barred from review by the one-year statute of limitations governing federal habeas corpus actions set forth in 28 U.S.C. § 2244 (d).
The Court also lacks jurisdiction to provide relief in the form of a writ of error coram nobis. The writ of error coram nobis has been abolished in civil cases, see Fed.R.Civ.P. 60(b), and survives only as a remedy under the All Writs Act, 28 U.S.C. § 1651, for "errors of the most fundamental character" that have occurred in a criminal proceeding. See United States v. Morgan, 346 U.S. 502 (1954); Flippins v. United States, 747 F.2d 1089, 1091 (6th Cir. 1984); United States v. Rife, 514 F. Supp. 368, 371-73 (S.D. Ohio 1981) (Rice, J.). A request for a writ of error coram nobis "is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding." Morgan, 346 U.S. at 505 n. 4. Such a petition must be presented to the court that pronounced the challenged judgment, and thus is not available to a petitioner seeking to overturn a state conviction in federal court. Cavett v. Ellis, 578 F.2d 567, 569 n. 4 (5th Cir. 1978) (and cases cited therein); Campbell v. Michigan Attorney General, 121 F.3d 707 (table), No. 96-19 12, 1997 WL 434399 (6th Cir. July 31, 1997) (unpublished); Campbell v. Breck, 113 F.3d 1234 (table), No. 96-1811, 1997 WL 211251, at**1 (6th Cir. April 28, 1997) (unpublished); Burkhart v. Ohio, 755 F.2d 931 (table). No. 84-3160, 1985 WL 12872, at **1 (6th Cir. Jan. 22, 1985) (unpublished); Moore v. Parke, 104 F.3d 362 (table), No. 95-3683, 1996 WL 735590, at **1 and n. 2 (7th Cir. Dec. 19, 1996) (unpublished) (and cases cited therein). Here, petitioner is seeking relief based on an incident resulting in the issuance of a traffic citation nearly six years ago and on alleged improprieties in a state criminal proceeding. A writ of error coram nobis is not available as a remedy for such alleged errors.
The All Writs Act does not provide any additional authority for this Court to intervene in the matter. The Act provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651 (a). The Act's statutory language, "in aid of their respective jurisdictions," does not empower a district court to create jurisdiction where none exists. Gehm v. New York Life Ins. Co., 992 F. Supp. 209, 211 (E.D.N.Y. 1998). "To the contrary, a court may issue orders under the Act only to protect a previously and properly acquired jurisdiction." Id..; see also Westinghouse Elec. Corp. v. Newman Holtzinger, P.C., 992 F.2d 932, 937 (9th Cir. 1993). A federal court thus lacks the general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought. Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275 (5th Cir. 1973) (per curiam) (and cases cited therein). This Court has not previously and properly acquired jurisdiction over petitioner's causes of action challenging actions taken by Officers Zollner and Gaynor in stopping plaintiff and issuing a traffic citation against him in September 1994, and actions taken by Judge Guckenberger in the state criminal post-conviction proceedings initiated by petitioner to challenge his conviction and sentence on the traffic citation jaywalking charge. This Court, therefore, has no authority to issue a writ of mandamus or procedendo directing the respondents in the performance of their duties to the extent such relief is sought.
Indeed, even assuming, arguendo, petitioner had sought relief from this Court in a non-habeas civil proceeding based on the Court's general federal question jurisdiction, see 28 U.S.C. § 1331, the Court would be precluded from granting the relief requested by petitioner. First, it appears petitioner's causes of action against Officers Zollner and Gaynor based on the jaywalking incident that occurred in 1994 would be time-barred under the pertinent two-year statute of limitations governing federal civil rights actions brought in Ohio. See Ohio Rev. Code § 2305.10; Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989). Second, respondent Guckenberger would be entitled to absolute judicial immunity from petitioner's claim for damages based on actions taken within his jurisdiction in his judicial capacity in the state post-conviction proceedings brought by petitioner. See Stump v. Sparkman, 435 U.S. 349, 357 (1978); Johnson v. Turner, 125 F.3d 324, 333 (6th Cir. 1997); Mann v. Conlin, 22 F.3d 100, 103-05 (6th Cir.), cert. denied, 513 U.S. 870 (1994). Third, to the extent petitioner seeks equitable and declaratory relief based on actions taken and rulings made by Judge Guckenberger in the state post-conviction proceedings, petitioner has not alleged any facts sufficient to trigger constitutional or other federal concerns.
In order to properly initiate a non-habeas civil action, petitioner should have submitted the requisite $150.00 filing fee. See 28 U.S.C. § 1914 (a). Petitioner is precluded from applying for in forma pauperis status because this Court has permanently revoked his pauper status based on his history of vexatious litigation. See May v. Challenger Communications Systems, Inc., No. C-1-88-732 (S.D. Ohio Nov. 14, 1989) (citing May v. Challenger Communications Systems, Inc., No. 89-3499 (6th Cir. Nov. 8, 1989)). Although it appears petitioner has improperly inserted nonhabeas civil claims into his habeas corpus petition to avoid the requisite filing fee, this Court will nevertheless dispose of such claims in the instant case because they lack a legal and factual basis.
Accordingly, in sum, the Court lacks jurisdiction to consider petitioner's "Petition For Habeas Corpus, Mandamus, Procedendo, Coram Nobis. . . ." In any event, even assuming petitioner had sought relief in a non-habeas civil proceeding, he is not entitled to the relief requested in his petition. The petition, therefore, must be dismissed.
It further appears upon review of this Court's docket records that petitioner has previously filed at least nine other habeas corpus petitions with this Court over the past four years, which have all been dismissed on the same or similar grounds. See, e.g., May v. Kenney, No. C-1-96-637 (Spiegel, J.) (Docs. 9, 19); May v. Guckenberger, No. C-1-98-694 (Beckwith, 1) (Doc. 13); May v. Kraft, C-1-98-842 (Spiegel, J.) (doc. 8); May v. Martin, C-1-98-868 (Weber, J.) (Doc. 6); May v. Schweikert, C-1-98-885 (Dlott, J.) (Doc. 9); May v. Grant, C-1-99-935 (Spiegel, J.) (Doc. 19); May v. Grothaus, No. C-1-00-590 (Dlott, J.) (Doc. 6); May v. Collins, No. C-1-00-609 (Dlott, J.) (Doc. 6); May v. Martin, No. C-1-00-646 (Spiegel, J.) (Doc. 6). Indeed, as discussed above, see supra p. 2, in May v. Guckenberger, No. C-1-98-694, it appears petitioner asserted factual allegations and claims that are substantially similar, if not identical, to those presented in the instant action. On August 23, 2000, the Honorable Susan J. Dlott of this Court summarily dismissed two of petitioner's recently-filed habeas corpus petitions and expressly informed petitioner in the dismissal orders that he would be subject to sanctions under Fed.R.Civ.P. 11 if he continued to file frivolous petitions. On September 5, 2000, the Honorable S. Arthur Spiegel adopted Judge Dlott's discussion of sanctions when summarily dismissing petitioner's habeas corpus petition against a Hamilton County Common Pleas Court judge and Officer Gaynor. See May v. Martin, No. C-1-00-646 (Spiegel, J.) (Doc. 6, pp. 5-7). This Court also adopts the following discussion of sanctions contained in Judge Dlott's August 23, 2000 dismissal orders:
. . . . As discussed above, see supra p. 4 n. 2, petitioner is precluded by court order from proceeding in forma pauperis before this Court. It appears that petitioner is seeking through his continued inappropriate use of habeas corpus petitions to circumvent the court order revoking his pauper status and the $150.00 filing fee he is now required to pay to commence a non-habeas civil action. This course of conduct, which consumes valuable time of the Court, amounts to an abuse of the judicial process, warranting the imposition of sanctions under Fed.R.Civ.P. 11.
A pro se litigant may not flagrantly ignore relevant procedural or substantive rules of law. The court has the inherent power to prevent the abuse of its procedure, which includes the imposition of sanctions. Fed.R.Civ.P. 11(b) provides in pertinent part:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; [and]
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law[.]
The Court may impose appropriate sanctions on its own initiative against a pro se litigant for violating Rule 11 "limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." See Fed.R.Civ.P. 11 (c); Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 548 (1991) (Rule 11 "speaks of attorneys and parties in a single breath and applies to them a single standard"); Spurlock v. Demby, 48 F.3d 1219 (table), No. 92-3842, 1995 WL 89003, at **2 (6th Cir. Mar. 2, 1995) (per curiam) ("while Rule 11 does provide that a person's knowledge, information, and belief are to be based on reasonableness under the circumstances, the rule does not provide a different standard for attorneys and non-attorneys"); see also Doyle v. United States, 817 F.2d 1235 (5th Cir.), cert. denied, 484 U.S. 854 (1987)." [P]ro se filings do not serve as an "impenetrable shield [from application of Rule 11], for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988) (quoting Farguson v. Mbank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986)).
The habeas corpus petition filed by petitioner, which the Court clearly lacks jurisdiction to consider, is flagrantly frivolous and unwarranted by existing law. Petitioner's pro se status is no excuse for the repeated filings of such petitions. The Court has advised petitioner on prior occasions of the impropriety of such filings. His persistence in filing these applications even after the Court's repeated Orders to the contrary constitutes an abuse of the judicial process . . .May v. Collins, No. C-1-00-609 (Dlott, J.) (Doc. 6, pp. 4-6); May v. Grothaus, No. C-1-00-590 (Dlott, J.) (Doc. 6, pp. 5-6).
Although sanctions were not imposed by Judges Dlott and Spiegel in the prior cases out of concern about lack of notice to petitioner, the Court concludes that sanctions are justified now to deter petitioner's conduct in filing repeated frivolous habeas corpus petitions. The instant petition was filed on September 20, 2000, after Judge Dlott and Judge Spiegel issued their recent rulings notifying petitioner of the possibility of the imposition of sanctions. As petitioner was informed by Judges Dlott and Spiegel in the prior orders, Fed.R.Civ.P. 11(c)(2) authorizes sanctions of a nonmonetary nature, which may include the imposition of a restriction on petitioner from filing further habeas corpus petitions without a certification that the claims asserted are not frivolous and that the suit is not brought for any improper purpose, see, e.g., Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir. 1996); Sawchyn v. Parma Municipal Court, 114 F.3d 1188 (table), No. 96-3943, 1997 WL 321112 (6th Cir. June 11, 1997), or the payment of the $150.00 filing fee required for commencing non-habeas civil actions, see 28 U.S.C. § 1914 (a). See May v. Martin, No. C-1-00-646 (Spiegel, J.) (doc. 6, p. 7); May v. Collins, No. C-1-00-609 (Dlott, J.) (Doc. 6, p. 6); May v. Grothaus, No. C-1-00-590 (Dlott, J.) (Doc. 6, p. 6).
Accordingly, pursuant to Fed.R.Civ.P. 11, the following sanction will be imposed to deter petitioner's conduct in filing numerous, repeated frivolous habeas petitions: Petitioner is enjoined from filing any further petitions for habeas corpus with this Court, even upon his payment of the $5.00 fee required for commencing a federal habeas corpus action, without first obtaining both a certification in writing by an attorney who is a member of the bar of this Court or a Magistrate Judge of this Court that the claims asserted in the petition are not frivolous and that the suit is not brought for any improper purpose and the approval of the Court for such filing. Cf Ortman, 99 F.3d at 811; Filipas v. Lemons, 835 F.2d 1145, 1146 (6th Cir. 1987); Nabkey v. Hoffius, 827 F. Supp. 450, 456-57 (W.D. Mich. 1993), aff'd mem., 79 F.3d 1148 (6th Cir. 1996). Because petitioner's in forma pauperis status has been permanently revoked, see supra p. 5 n. 2, if petitioner seeks to file a habeas petition without first obtaining the Court's approval for such filing in accordance with this Order, he shall be required to submit the requisite $150.00 fee for initiating a civil action before his petition shall be accepted by the Clerk for filing. See 28 U.S.C. § 1914 (a). In the absence of petitioner's payment of the requisite $150.00 fee for commencing a civil action, the Clerk of Court is directed to deny the filings of any further petitions submitted by petitioner with this Court without first obtaining the Court's approval for such filing in accordance with this Order.
IT IS THEREFORE ORDERED THAT:
1. Petitioner's motion for default judgment is DENIED.
2. Petitioner's motion for order to decide motion and to extend time to respond to defendant's motion is DENIED as moot.
3. Petitioner's motion to amend petition is DENIED.
4. Petitioner's motions for hearings are DENIED as moot.
5. Petitioner's motion for transfer is DENIED.
6. Petitioner's motion for findings of fact and conclusions of law is DENIED as moot.
7. Petitioner's "Petition for Habeas Corpus, Mandamus, Procedendo, Expungement . . ." is DISMISSED with prejudice.
8. The following sanction is imposed pursuant to Fed.R.Civ.P. 11 against petitioner in order to deter his conduct in filing numerous, repeated frivolous habeas petitions: Petitioner is hereby ENJOINED from filing any further petitions for habeas corpus with this Court, even upon his payment of the $5.00 fee required for commencing a federal habeas corpus action, without first obtaining both a certification in writing by an attorney who is a member of the bar of this Court or a Magistrate Judge of this Court that the claims asserted in the petition are not frivolous and that the suit is not brought for any improper purpose and the approval of the Court for such filing. Because petitioner's in forma pauperis status has been permanently revoked, see supra p. 5 n. 2, in the absence of petitioner's payment of the $150.00 fee required for initiating a non-habeas civil action, see 28 U.S.C. § 1914 (a), the Clerk of Court is hereby DIRECTED to deny the filings of any further petitions submitted by petitioner to this Court without first obtaining the Court's approval for such filing in accordance with this Order.
9. A certificate of appealability will not issue because, for the foregoing reasons, petitioner has failed to make a substantial showing of the denial of a constitutional right remediable in this habeas corpus proceeding. See 28 U.S.C. § 2253 (c); Fed.R.App.P. 22(b).
10. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that an appeal of this Order would not be taken in "good faith". As petitioner's in forma pauperis status has been revoked, he is DENIED leave to appeal in forma pauperis. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
This case is hereby DISMISSED with prejudice and is TERMINATED on the docket of this Court.
IT IS SO ORDERED.