United States District Court, E.D. Louisiana
GARLAND E. WILLIAMS
UNITED STATES OF AMERICA, ET AL.
REPORT AND RECOMMENDATION
MICHAEL B. NORTH, UNITED STATES MAGISTRATE JUDGE.
above-captioned matter previously came before the Court
pursuant to Local Rule 72.1(B)(1) for a determination of
pauper status under 28 U.S.C. §1915. (Rec. docs. 2, 3).
lawsuit is the latest chapter in Plaintiff's unsuccessful
efforts to obtain relief from the enforcement of child
support orders entered by state courts in Kansas and
Louisiana  and, in the wake of those
unsuccessful efforts, to sue numerous federal and state
officials, including judicial officers, who were involved in
referring the dispute along the way.  The instant matter is but
the most recent manifestation of Plaintiff's
dissatisfaction with the results that he has obtained to
date, in the form of an action against the jurist who
presided over one of his previous lawsuits, the Honorable
Ivan L.R. Lemelle, and Clerk of Court William W. Blevins.
(Rec. doc. 1). Plaintiff seeks substantial monetary damages
in the amount of $2, 800, 000, 000. (Id. at p. 21).
noted above, Plaintiff is proceeding in forma
pauperis in this matter pursuant to 28 U.S.C.
§1915. (Rec. doc. 3). As directed by that statute,
courts are to dismiss such matters at any time it is
determined, inter alia, that the action is
“… frivolous or malicious …” 28
U.S.C. §1915(e)(2)(B)(i). A complaint is frivolous if
the claims alleged therein have no arguable basis in law or
fact. Booker v. Koonce, 2 F.3d 114, 115 n. 6 (5th
Cir. 1993). A complaint is malicious if the claims presented
have already been asserted by the plaintiff in a pending or
previous lawsuit against the same or different defendants.
Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.
1988). Although “frivolous” precedes
“malicious” in the aforementioned statute, those
two bases of dismissal will be addressed in opposite order.
Williams v. United States of America, et al., No.
18-CV-4005-SAC-KGS, a lawsuit that Plaintiff initiated in
January of this year in the United States District Court for
the District of Kansas, Plaintiff sued Judge Lemelle and
Clerk of Court Blevins on the same grounds that he asserts in
this matter. Indeed, a comparison of the complaint that
Plaintiff filed in that previous matter and the one that he
filed herein reveals them to be the same, save for minor
changes in the paragraphs numbered as “1” and
“9” in terms of the forum being petitioned.
(Compare rec. doc. 1 with rec. doc. 1 in No. 18-CV-4005). On
February 14, 2018, the Magistrate Judge to whom No.
18-CV-4005 was allotted issued a Report and Recommendation
recommending that that lawsuit be dismissed under
§1915(e)(2)(B)(ii) and (iii) for failing to state a
claim upon which relief can be granted and for seeking
monetary damages from Defendants who are immune from such
relief. (Rec. doc. 5 in No. 18-CV-4005). After various
filings were submitted by Plaintiff, on March 2, 2018, the
District Judge to whom No. 18-CV-4005 was allotted adopted
the Magistrate Judge's Report and Recommendation and
ordered that the case be dismissed. (Rec. doc. 10 in No.
18-CV-4005). Judgment so dismissing the matter was entered
that same day and thus far, no appeal has been taken. (Rec.
doc. 11 in No. 18-CV-4005).
just a mere three days later Plaintiff submitted an
essentially identical complaint to the United States District
Court for the District of Kansas, Williams v. United
States of America, et al., No. 18-CV-4018-SAC-KGS. On
March 9, 2018, the same District Judge to whom
Plaintiff's previous lawsuit had been allotted issued an
order dismissing No. 18-CV-4018 as malicious for being
duplicative of that earlier suit, for failing to state a
plausible, intelligible claim for relief, and for seeking
monetary relief from Defendants who are immune from such
relief. (Rec. doc. 5 in No. 18-CV-4018). Judgment dismissing
the action was contemporaneously entered and to date, no
appeal has been taken. (Rec. doc. 6 in No. 18-CV-4018).
instant proceeding, which was filed in forma
pauperis, is repetitious litigation duplicative of Nos.
18-CV-4005 and 18-CV-4018 that seeks “… to
relitigate claims which allege substantially the same facts
arising from a common series of events which have already
been unsuccessfully litigated by the IFP plaintiff.”
Wilson v. Lynaugh, 878 F.2d 846, 850 (5th
Cir.), cert. denied, 493 U.S. 969, 110 S.Ct. 417
(1980)(citing Bailey v. Johnson, 846 F.2d 1019 (5th
Cir. 1988)). A complaint is malicious and subject to
dismissal under §1915(e)(2)(B)(i) “when it
‘duplicates allegations of another … federal
lawsuit by the same plaintiff' or when it raises claims
arising out of a common nucleus of operative facts that could
have been brought in the prior litigation.” McGill
v. Juanita Kraft Postal Services, No. 03-CV-1113, 2003
WL 21355439 at *2 (N.D. Tex. June 6, 2003), adopted,
2003 WL 21467745 (N.D. Tex. June 18, 2003)(quoting
Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir.
1993)). The rationale behind these decisions is that the
privilege of proceeding in forma pauperis at
government expense does not entitle a plaintiff to a second
“… bite at the litigation apple …”
Pittman v. Moore, 980 F.2d 994, 995 (5th
can be no doubt that Plaintiff is aware of the concept of
maliciousness as the District Judge's order of March 9,
2018 in No. 18-CV-4018 dismissing that matter as malicious
and duplicative of No. 18-CV-4005 specifically cited the
Fifth Circuit's cases in both Pittman and
Bailey. (Rec. doc. 5, p. 2 in No. 18-CV-4018). That
Plaintiff persisted with the prosecution of this matter in
the face of that recent ruling renders it not only subject to
dismissal on the same basis, but also raises the spectre of
sanctionable conduct. See, e.g., United
States v. Odeh, 185 F.3d 346, 346-47 (5th
Cir. 2006)(citing Coghlan v. Starkey, 852 F.2d 806,
808 (5th Cir. 1988)); Lay v. Anderson,
837 F.2d 231 (5th Cir. 1988).
only is this action malicious, it is also frivolous. Contrary
to the clear mandate of Rule 8(a)(2), Fed. R. Civ. P., to the
extent that Plaintiff's rambling, often incomprehensible
pleading can be deciphered at all, his principal complaint
appears to center on the manner in which one of his previous
cases, No. 16-CV-15866, was decided. A review of the record
in that case reveals that the matter was dismissed after
Plaintiff wholly failed to file memoranda in opposition to
the Defendants' motions to dismiss, opting instead to
file multiple, premature notices of appeal in spite of there
being no entry of a final judgment. (Rec. docs. 28, 30, 38,
39, 43, 44 in No. 16-CV-15866). Although Plaintiff was
specifically offered the opportunity to file a motion for
reconsideration of the order and reasons that disposed of
that case, he failed to avail himself of that opportunity,
choosing instead to file a fifth notice of
appeal that was subsequently dismissed for want of
prosecution. (Rec. docs. 44, 45, 48 in No. 16-CV-15866). When
judgment was finally entered in the matter, Plaintiff took no
further action whatsoever in the case. As Plaintiff was
proceeding pro se in that matter, these failures are
attributable to him alone. Obviously, the instant lawsuit
against Senior District Judge Lemelle is not the appropriate
substitute for the appellate rights that Plaintiff initially
but prematurely pursued and ultimately voluntarily abandoned.
Clerk of Court Blevins, the basis of Plaintiff's
complaint appears to be that the Clerk failed to enter a
default in No. 16-CV-15866 pursuant to Rule 55(a),
Fed.R.Civ.P. (Rec. doc. 1, pp. 5-8, 16). Plaintiff, however,
never filed a motion for the entry of a default in that case
as required by Rule 55(a), choosing instead to first move for
a default judgment, an error that was noted in the District
Judge's written decision disposing of the latter motion.
(Rec. docs. 25, 27 in No. 16-CV-15866). From a causation
standpoint, the Clerk cannot be held liable for failing to
act on a motion that Plaintiff never filed. As
Plaintiff's complaint lacks an arguable factual basis as
to Clerk of Court Blevins, it is equally susceptible of
dismissal as frivolous on that basis. Booker, 2 F.3d
at 115 n. 6.
the statutory bases of liability cited by Plaintiff, 42
U.S.C. §§1983, 1985, and 1986, are not viable here.
The first-listed statute, §1983, is inapplicable as the
named Defendants in this matter are federal officials acting
pursuant to federal law and are not state actors acting under
color of state law, necessary requirements to the maintenance
of a lawsuit under §1983. Lyons v. Sheetz, 834
F.2d 493, 495 (5th Cir. 1987). In addition, Judge Lemelle is
absolutely immune from suit even if his acts are perceived by
Plaintiff to have been done erroneously, maliciously, or even
in excess of his authority. Stump v. Sparkman, 435
U.S. 349, 356, 98 S.Ct. 1099, 1104-05 (1978); Pierson v.
Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217-18
(1967); Mays v. Sudderth, 97 F.3d 107, 110-11
(5th Cir. 1996); Graves v. Hampton, 1
F.3d 315, 317 (5th Cir. 1993); Lyons, 834
F.2d at 495. To the extent that Plaintiff was dissatisfied
with the rulings that were made by Judge Lemelle in his prior
case, his recourse was to seek appellate review of the
rulings, not to sue the Judge on civil-rights grounds.
Boyd v. Vance, No. 09-CV-7643, 2010 WL 235031 at *2
(E.D. La. Jan. 13, 2010). Independent lawsuits against
presiding judges are not the appropriate vehicle for
disgruntled litigants to obtain a reversal of adverse
judgments. Montesano v. New York, No. 05-CV-9574,
05-CV-10624, 2006 WL 944285 at *4 (S.D.N.Y. Apr. 12,
2006)(“[n]either damages, injunctive nor declaratory
relief is available to be used as a vehicle for disgruntled
litigants to reverse adverse judgments.”); see also
Brandley v. Keeshan, 64 F.3d 196, 2001-01 (5th Cir.
1995), cert. denied, 516 U.S. 1129, 116 S.Ct. 947
(1996); Boyd v. Biggers, 31 F.3d 279, 284
(5th Cir. 1994); Dayse v. Schuldt, 894
F.2d 170, 172 (5th Cir. 1990); Wightman v.
Jones, 809 F.Supp. 474 (N.D. Tex. 1992).
to the second statutory basis for liability cited by
Plaintiff, §1985, subsection (1) is obviously
inapplicable here as there is no suggestion that the named
Defendants prevented Plaintiff from accepting, holding, or
discharging the duties of a public office. Subsection (2),
which prohibits the obstruction of justice by threatening a
party, witness, or juror from attending or testifying in any
court of the United States, is equally unavailing.
Garrison v. City of Texarkana, Texas, 910 F.Supp.
1196, 1205 (E.D. Tex. 1995). Finally, §1985(3) is
likewise inapplicable here as Plaintiff's complaint
contains no allegations of class-based invidious
discrimination, an indispensable component of that
subsection. Roe v. Abortion Abolition Society, 811
F.2d 931, 933-34 (5th Cir.), cert.
denied, 484 U.S. 848, 108 S.Ct. 145 (1987). See also
United Brotherhood of Carpenters, Local 610 v. Scott,
463 U.S. 825, 103 S.Ct. 3352 (1983); Eitel v.
Holland, 787 F.2d 995, 1000 (5th Cir. 1986). Without a
viable claim under §1985(3), the asserted cause of
action under §1986 also fails, §1986 being entirely
derivative from §1985. Shaw v. Garrison, 391
F.Supp. 1353, 1370 (E.D. La. 1975), aff'd, 545
F.2d 980 (5th Cir. 1977).
Plaintiffs reliance on various provisions of Title 18 of the
United States Code provides him no solace as those statutes
are criminal in nature and do not provide causes of action
which are enforceable by a private citizen in a civil
proceeding like this one. Hanna v. Home Ins. Co.,281 F.2d 298, 303 (5th Cir. 1960); D'Aquin
v. Landrieu, No. 16-CV-3862, 2016 WL 7178511 at *3 (E.D.
La. Dec. 9, 2016); Bailey v. Daniels, 679 F.Supp.2d
713, 716-17 (W.D. La. 2009). For all ...