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Houston v. Potter

May 30, 2007

ROCKY JOE HOUSTON, PLAINTIFF,
v.
JOHN E. POTTER, U.S. POSTAL SERVICE, DAVID HAGGARD, AND FAY HALL, DEFENDANTS.
ROCKY JOE HOUSTON, PLAINTIFF,
v.
JEFF WICKS, JAMES BUDDY SCOTT, J. SCOTT MCCLUEN, BRAD NEALON, ANGELA RANDOLPH, CHARLES C. SNOW, RANDY G. ROGERS, JAMES F. LOGAN, JR., STATE OF TENNESSEE, AND ROANE COUNTY, DEFENDANTS.
ROCKY JOE HOUSTON, PLAINTIFF,
v.
GEORGE W. BUSH, THOMAS W. PHILLIPS, LEONARD GREEN, THE FEDERAL GOVERNMENT, AND THE STATE OF OHIO, DEFENDANTS.
ROCKY JOE HOUSTON, PLAINTIFF,
v.
ROANE COUNTY, DAVID H. BEAMS IN HIS OFFICIAL CAPACITY AS OAK RIDGE POLICE CHIEF, GEORGE W. BUSH, AND UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Chief Judge Curtis L. Collier

MEMORANDUM

Before the Court are four pro se civil rights actions brought pursuant to 42 U.S.C. § 1983. Rocky Joe Houston ("Plaintiff") is the plaintiff in all four cases, and in multiple other cases which were or are pending in this Court and which will be discussed below. The Court will deal with and dismiss each pending case. Further, pursuant to Fed. Civ. P. 11 and its inherent powers, and further based on a motion filed by defendants in Case No. 3:06-CV-387, the Court also will enjoin and limit Plaintiff from future filings in the Eastern District of Tennessee, and order the Clerk to reject filings by Plaintiff without this Court's authorization.

I. CASE No. 3:06-CV-318

Defendants in this matter are the United States Postmaster General ("Postmaster General"); the U.S. Postal Service ("USPS"); David Haggard, Sheriff of Roane County, Tennessee ("Haggard"); and Fay Hall, another employee with the Sheriff's Department ("Hall"). The defendants are sued in their individual and official capacities. Plaintiff alleges the defendants conspired to deprive him of his right to judicial process, in violation of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution (Court File No. 1). Specifically, Plaintiff alleges conspiracy to delay service of process of 15 federal complaints. Plaintiff demands $100 million in each of compensatory and punitive damages from the Postmaster General and the USPS, and $3 million in each of compensatory and punitive damages from Haggard and Hall.

Pending before the Court is Haggard and Hall's motion to dismiss (Court File No. 2) for (1) failure to state a claim and (2) filing outside the statute of limitations. Plaintiff did not respond to this motion. On October 16, 2006 Judge Phillips ordered Plaintiff to respond and warned, if Plaintiff did not respond, the complaint would be summarily dismissed (Court File No. 4). Plaintiff failed to respond (though he did file a motion for Judge Phillips to recuse himself and several motions for default judgment against the Postmaster General). Therefore, the motion to dismiss (Court File No. 2) is GRANTED pursuant to Local Rule 7.2 ("[f]ailure to respond to a motion may be deemed a waiver of any opposition to the relief sought"). Plaintiff's claims against Haggard and Hall will be DISMISSED WITH PREJUDICE. It should be noted, the Court would also grant the motion to dismiss on its merits, because Plaintiff's complaint is frivolous and groundless, fails to assert a § 1983 violation by failing to state a true deprivation of a protected right, is time-barred by expiration of the statute of limitations, and fails under Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957), to contain a "short and plain statement" and giving "fair notice" to the defendants as to the claims against them individually, collectively, legally, and factually. See also Found. for Interior Design Educ. Research v. Savannah Coll. of Art & Design, 244 F.3d 521, 530 (6th Cir. 2001) (complaint must "'allege a factual predicate concrete enough to warrant further proceedings").

Further, Plaintiff's motion for default judgment against the Postmaster General (Court File No. 12) will be DENIED. Fed. R. Civ. P. 55(e) prohibits the entry of a default against the United States or an officer or agent thereof, "unless the claimant establishes a claim or right to relief by evidence satisfactory to the court." This Court ordered Plaintiff to show cause as to proper service on the Postmaster General and cited Rule 55(e) to Plaintiff. Plaintiff provided "proof" of service, but this "proof" is improper under Fed. R. Civ. P. 4(i).*fn1 Plaintiff failed to demonstrate the merits of his claim. Again, Plaintiff did not respond to the motion to dismiss and has not repudiated the contentions cited above ((1) the complaint failed to state a claim for which relief can be granted, (2) the complaint was filed more than a year after the complained-of conduct, exceeding the one-year statute of limitations for a § 1983 action, Wilson v. Garcia, 471 U.S. 261 (1985); Tenn. Code Ann. § 28-3-104(a)(3), (3) the complaint is frivolous, and (4) the complaint fails to give the defendants fair notice of the claims against them). In short, Plaintiff has not met the burden of Fed. R. Civ. P. 55(e) and demonstrated he has "a claim or right to relief by evidence satisfactory to the court." The Court will therefore not only deny his motion for default, but will DISMISS WITH PREJUDICE his claims against the Postmaster General and the USPS.

II. CASE No. 3:06-CV-387

Defendants in this matter are: Jeff Wicks ("Wicks") and James Buddy Scott ("Scott"), two state-court judges; J. Scott McCluen, District Attorney for the Ninth District ("D.A."); Brad Nealon ("Nealon"), a Tennessee Bureau of Investigation ("TBI") agent; Angela Randolph ("Randolph"), Roane County Clerk; Charles C. Snow ("Foreman"), grand jury foreman in Roane County; Randy G. Rogers and James F. Logan, Jr. ("Attorneys"), two otherwise unidentified attorneys; the State of Tennessee; and Roane County ("County"). All defendants are sued in their official capacities (Court File No. 1). Plaintiff alleges the defendants conspired against him. They refused to protect him, obtained a murder indictment against him, unlawfully issued and executed a writ against him, and refused to hold a preliminary hearing on the murder charges. Plaintiff alleges the defendants have committed crimes such as official misconduct, obstruction of justice, public corruption, "organized crime," and treason (id.). The State and County are vicariously liable for the acts of their officials. Defendant Attorneys, who are (or were) representing Plaintiff and his brother on the murder charges, are accused of "breach of contract" and, apparently, of not demanding the D.A. recuse himself from prosecuting Plaintiff (id.).*fn2 Plaintiff asserts a § 1983 action for deprivation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution, and demands $7 million in each of compensatory and punitive damages.

Pending before the Court is a motion to dismiss filed by defendants Wicks, Randolph, the Foreman, and the County (Court File No. 2). The supporting memorandum points out "[a]lmost all of the allegations concern matters raised in previous civil rights suits filed in this court" (Court File No. 3, p. 1). The motion to dismiss raises a Fed. R. Civ. P. 12(b)(6) defense, a statute-of-limitations defense, judicial and qualified immunity defenses, and issue preclusion (id. at 2-3). Plaintiff did not respond to this motion. On November 9, 2006, defendants State of Tennessee, Scott, the D.A., and Nealon*fn3 filed a motion to dismiss, defending on Eleventh Amendment, judicial, and prosecutorial immunity, and Younger abstention grounds. Plaintiff did not respond to this motion either. On December 14, 2006, Judge Phillips ordered Plaintiff to respond and warned, if Plaintiff did not, the complaint would be summarily dismissed against these defendants (Court File No. 10). Judge Phillips also ordered Plaintiff to show cause why the complaint should not be dismissed against the Attorneys for Plaintiff's failure to prosecute (id.). In response, Plaintiff filed an irrelevant motion for Magistrate Judge Shirley's recusal and motions for default judgment against the Attorneys.

Again, Plaintiff has failed to respond to two separate motions to dismiss despite an Order to do so. The Court finds, under E.D.TN. L.R. 7.2 and on the merits, the motions to dismiss should each be GRANTED. Plaintiff's claims are DISMISSED WITH PREJUDICE against Wicks, Scott, the D.A., Nealon, Randolph, the Foreman, the State of Tennessee, and the County. Each of Plaintiff's motions for default judgment against each of the Attorneys will be DENIED (Court File Nos. 12 & 13). There is no evidence either Attorney was served and therefore aware of this matter. Moreover, there is no evidence either Attorney is a state actor as required by 42 U.S.C. § 1983. Finally, Plaintiff has failed to demonstrate any merit to his claims. For these reasons, the Court will DISMISS WITH PREJUDICE Plaintiff's claims against the Attorneys.

Finally, pending before the Court is a motion for sanctions filed by defendants the D.A., Scott, Nealon, and the State of Tennessee (Court File No. 18). The supporting memorandum recounts the seven prior lawsuits filed by Plaintiff against many of the same defendants (Court File No. 19). The motion and memo request this Court impose Fed. R. Civ. P. 11 sanctions on Plaintiff, for his history of filing frivolous and vexatious lawsuits. "Mr. Houston files frivolous federal lawsuits against any state entity, official, or the State itself, apparently in an attempt to alter the course of his criminal trial" (id. at 8). The motion and memo request a sanction previously approved by the United States Court of Appeals for the Sixth Circuit: a pre-filing requirement, which would mandate Plaintiff first submit a complaint to a magistrate judge to review whether his claims were frivolous or improper before such complaint could be filed (id. at 6) (citing Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir. 1996)). The defendants believe this sanction is appropriate because it still permits Plaintiff to file complaints, if meritorious, and because Plaintiff has been warned repeatedly (1) he may be sanctioned and (2) his suits asserted frivolous or unjusticiable claims (id. at 8) (noting Plaintiff has previously been shown copies of the motion for sanctions and failed to respond to it or take action to avoid its filing).

The Court will GRANT this motion, and impose a pre-filing requirement on Plaintiff. This motion is well-taken, because Plaintiff is now a state prisoner, and federal law (discussed below) requires this Court screen his filings for propriety. Further, in Part V infra, this Court will ENJOIN Plaintiff from any further filings related to the broad conspiracy he has asserted in every suit to date.

III. CASE No. 3:07-CV-8

Plaintiff is currently incarcerated, accused of ambushing and murdering a Roane County deputy and his friend. See District Attorney General, Ninth Judicial District, Press Release (June 6, 2006). Pursuant to 28 U.S.C. § 1915A, the Court must screen a civil complaint filed by a prisoner*fn4 seeking redress from governmental entities or officials, and must dismiss such complaint if it is "frivolous, malicious, or fails to state a claim upon which relief may be granted . . . or seeks monetary relief from a defendant who is immune." 28 U.S.C. §§ 1915A(a)-(b). Pursuant to the Prisoner Litigation Reform Act, notwithstanding any filing fee that has been paid the Court "shall dismiss the case at any time if the court determines . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2).

In either event, "a complaint . . . is frivolous where it lacks an arguable basis either in law or fact" or when it appears that the plaintiff has little chance of success. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000). A complaint lacks an arguable basis in law or fact if it contains factual allegations that are "fantastic or delusional" or "obviously" without merit. Brown, 207 F.3d at 866 (citing Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990) (example includes prisoner's assertion of an Eighth Amendment claim against the U.S. Attorney General stemming from the actions of a state corrections officer). When considering frivolity, "a litigant's history of bringing unmeritorious litigation can be considered." Bilal v. Driver, 251 F.3d 1346, 1350 (11th Cir. 2001). Moreover, § 1915(e) "accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327. The Sixth Circuit has held:

When screening a prisoner complaint, a district court must examine both § 1915(e) and § 1915A. If the civil action seeks redress from a governmental entity, officer, or employee, the district court must dismiss the complaint, or any portion of the complaint, which (a) is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (b) seeks monetary relief from a defendant who is immune from monetary relief. 28 U.S.C. § 1915A. Should the complaint contain any allegations that do not fall within § 1915A, the district court must then examine the complaint under § 1915(e)(2). The requirements of §1915(e)(2) overlap the criteria of § 1915A. Section 1915A is restricted to prisoners who sue government entities, officers, or employees. In contrast, § 1915(e)(2) is restricted neither to actions brought by prisoners, nor to cases involving government defendants. Further, § 1915A is applicable at the initial stage of the litigation, while § 1915(e)(2) is applicable throughout the entire litigation process. A case that may not initially appear to meet §1915(e)(2) may be dismissed at a future date should it become apparent that the case satisfies this section. Thus, in prisoner cases, the district court must first examine a complaint under § 1915A and then review the complaint under § 1915(e)(2) before the case can proceed in due course. A district court is required to screen all civil cases brought by prisoners, regardless of whether the inmate paid the full filing fee, is a pauper, is pro se, or is represented by counsel as the statute does not differentiate between various civil actions brought by prisoners. The dismissal of a complaint under §1915(e)(2) or § 1915A does not negate a prisoner's obligation to pay the filing fee in accordance with § 1915(b)(1)- (2).

McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997).

In this matter, filed January 1, 2007, Plaintiff sued President George W. Bush, Judge Phillips, the Sixth Circuit Clerk, the "federal government," and the State of Ohio (Court File No. 1). Plaintiff alleges a deprivation of his Sixth, Eighth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges "a conspiracy in furtherance of a conspiracy and a direct attempt to delay, impede, and obstruct justice"; in other words, his prior lawsuits have not been dealt with in the way Plaintiff would like, and George W. Bush and the Sixth Circuit were complicit in permitting this travesty (it is unclear what Ohio has done, other than being the state where the City of Cincinnati is located). Plaintiff's complaint is full of invective against non-defendant federal and state officials, police officers, the victim in the murder of which Plaintiff has been accused, and pretty much every one else except soldiers in the armed forces. Procedurally, Plaintiff has demanded Judge Varlan's recusal and entry of default judgment against all defendants -- despite the absence of evidence any defendant has been properly served.

Here (and in all his pending cases), Plaintiff is seeking monetary damages from government entities or officials. As stated herein, his claims are frivolous, malicious, offensive, and patently without merit. Moreover, his complaint fails to state a claim.*fn5 The defendants are all immune and thus this Court does not have subject matter jurisdiction, as it has pointed out to Mr. Houston on numerous occasions. Plaintiff's claims also appear to be time-barred.*fn6

Considering Plaintiff's litigation history, his failure to prosecute multiple suits, his failure to state a claim for which relief may be granted, his failure to give the defendants fair notice of the individual, collective, legal, and factual claims against them, and the ridiculous and offensive factual allegations of some of these suits -- including an allegation the undersigned has conspired to kill him -- the Court finds ยง 1915A and (e)(2) require dismissal of the instant suit and Plaintiff's pending case (Case No. 3:07-CV-187). Accord Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999) (affirming district court screening a complaint filed against 20 judges including the Second Circuit panel members, because facts -- judge and prosecutorial conspiracy -- were frivolous and patently baseless, complaint was devoid of facts to support conspiracy pleading and was malicious) ("The manifest purpose was . . . only to harass and disparage the AUSA who ...


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