Maisano v. Arpaio et al

Filing 7

ORDER that Plaintiff's 1 Complaint and this action are dismissed without prejudice, pursuant to 28 U.S.C. § 1915A(a). The Clerk of Court must enter judgment accordingly and close this case. Defendant Arpaio's 6 Motion to Dism iss is denied as moot. The Clerk of Court must update the docket to reflect that Plaintiff is currently confined in the Arizona State Prison Complex-Florence, East Unit, and must send this Order to Plaintiff at that address. The Clerk must send a courtesy copy of this Order to the Chief Judge of the United States District Court for the Middle District of Tennessee. The Clerk must accept no further documents for filing in this case number, other than those in furtherance of an appeal. The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Senior Judge Stephen M McNamee on 9/5/2014. (LFIG)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dale Maisano, 10 Plaintiff, 11 12 No. CV 14-1881-PHX-SMM (MHB) vs. ORDER Sheriff Joseph M. Arpaio, et al., 13 Defendants. 14 15 I. Background 16 Plaintiff Dale Maisano, who is confined in the Arizona State Prison Complex- 17 Florence in Florence, Arizona, has abused the legal process egregiously and often. He is 18 subject to the three-strikes provision of the Prisoner Litigation Reform Act. In addition, 19 in an August 11, 1992 Order and Restraining Order in Maisano v. Lewis, 92-CV-1026- 20 PHX-SMM (MS), the Court concluded that “[i]t has become obvious from the nature of 21 the Plaintiff’s complaints and his lack of good faith that he simply desires to burden the 22 judicial system with complaints, without regard for their merit or final disposition” and 23 enjoined Plaintiff from filing any civil action in this or any other federal court without 24 first obtaining leave of the court. See August 11, 1992 Order and Restraining Order in 25 Maisano v. Lewis, CV 92-1026-PHX-SMM (MS).1 When seeking to leave, Plaintiff was 26 required to file an “Application Pursuant to Court Order Seeking Leave to File” 27 28 1 Plaintiff appealed the final judgment in CV 92-1026-PHX-SMM (MS) to the Ninth Circuit Court of Appeals. On March 17, 1993, the Court lodged a certified copy of the Ninth Circuit=s mandate dismissing the appeal. 1 accompanied by a copy of the 1992 Restraining Order, a list of all cases previously filed 2 involving similar or related causes of action, and an affidavit certifying that: (1) the claim 3 or claims he wishes to present are new and have never been raised and disposed of on the 4 merits by any federal court, and (2) to the best of his knowledge, the claim or claims are 5 not frivolous or taken in bad faith. Id. 6 Unfortunately, the 1992 Restraining Order proved to be insufficient to quell 7 Plaintiff’s assault on the federal courts. In a January 29, 2014 Order to Show Cause in 8 Maisano v. Clark, 14-CV-0001-TUC-RCC (D. Ariz. 2014), Chief United States District 9 Court Judge Raner C. Collins examined Plaintiff’s voluminous filings and concluded, 10 based on the number and nature of Plaintiff’s filings, that Plaintiff’s conduct was 11 manifestly abusive and harassing and that the 1992 Restraining Order had proven 12 insufficient to restrain Plaintiff’s abuse of the courts. The Court concluded that more 13 stringent measures were required, proposed an additional abusive-litigant injunction, and 14 gave Plaintiff an opportunity to show cause in writing why such an injunction should not 15 be imposed. 16 After Plaintiff responded to the Order to Show Cause, Chief Judge Collins issued a 17 February 20, 2014 Injunction Order that enjoined Plaintiff from filing or lodging more 18 than one in forma pauperis lawsuit per month in this Court, refused to accept any 19 transfers pursuant to 28 U.S.C. § 1406(a) of cases filed by Plaintiff in other Districts, and 20 reiterated and supplemented the requirements of the 1992 Restraining Order.2 21 addition, the 2014 Injunction Order enjoined Plaintiff from filing any civil action in this 22 or any other federal court without first obtaining leave of the court. When seeking leave 23 to file, Plaintiff is required to file a motion for leave to file that is captioned as an 24 “Application Pursuant to Court Order Seeking Leave to File” and which contains a copy 25 of the 2014 Injunction Order, a copy of the January 29, 2014 Order to Show Cause, a In 26 2 27 28 In an April 8, 2014 Order, the Ninth Circuit Court of Appeals reviewed Plaintiff’s Notice of Appeal of the Injunction Order and Plaintiff’s accompanying documents, concluded that “the appeal is so insubstantial as to not warrant further review,” and did not permit the appeal to proceed. See Doc. 8 in 14-CV-0001-TUCRCC. -2- 1 copy of the 1992 Restraining Order, a list of all cases previously filed involving similar 2 or related causes of action, an affidavit certifying that the claim or claims presented are 3 new and have never been raised and disposed of on the merits by any federal court, and a 4 certification that, to the best of his knowledge, the claim or claims presented are not 5 frivolous or taken in bad faith. Id. In addition, because Plaintiff has “three-strikes,” the 6 2014 Injunction Order required that any lawsuit Plaintiff filed or lodged “clearly, 7 coherently, and credibly” alleges that Plaintiff is under imminent danger of serious 8 physical injury. Id. 9 II. Plaintiff’s Current Lawsuit 10 On June 25, 2014, Plaintiff filed a Complaint in the Superior Court of Maricopa 11 County, Arizona, against the undersigned, eight other district court judges from the 12 District of Arizona, four district court judges from the Middle District of Tennessee, three 13 judges from the Ninth Circuit Court of Appeals, the State of Arizona, the Arizona 14 Governor, the Arizona Attorney General, the Director of the Arizona Department of 15 Corrections (ADOC), the Maricopa County Sheriff, ADOC Warden Moody and Deputy 16 Warden Scott, an unknown ADOC sergeant, two unknown ADOC Correctional Officer 17 IIs, 18 Group/Correctional Food Services Inc. (Canteen), and an unknown Canteen 19 “whiteshirt.”3 nurse practitioner Rick Unger, Corizon Health Inc., Canteen/Trinity 20 On August 22, 2014, Defendants Chris Moody and Travis Scott filed a Notice of 21 Removal and removed the lawsuit to this Court. On September 3, 2014, Defendant 22 Arpaio filed a Motion to Dismiss (Doc. 6). 23 A. 24 A State court defendant may remove to federal court any civil action brought in 25 the state court over which the federal district courts would have original jurisdiction. 28 Removal 26 27 28 3 In addition, on Plaintiff’s Civil Cover Sheet, he also lists as Defendants: the United States Department of Justice’s “NYA” Civil Rights Division, the Arizona Secretary of State, the Maricopa County Attorney, an attorney with the Prison Law Office, and the American Civil Liberties Union of Arizona. -3- 1 U.S.C. § 1441(a). 2 violations of his federal constitutional rights, 42 U.S.C. § 1997e, 42 U.S.C. § 1985, the 3 “Civil Rights Act of 1871,” and “RICO.” This Court’s jurisdiction extends to such 4 claims. 28 U.S.C. §§ 1331, 1343(a). Defendants timely removed. Accordingly, removal 5 is appropriate. In his June 25 Complaint, Plaintiff alleges, among other things, 6 B. 7 Plaintiff has named the undersigned as a Defendant in this action. Ordinarily, 8 when a judge assigned to the case is named as a party, the judge would recuse himself 9 sua sponte pursuant to 28 U.S.C. § 455, which requires a judge to recuse himself “in any 10 proceeding in which his impartiality might be reasonably questioned” or when he is “a 11 party to the proceeding.” 28 U.S.C. § 455(a) and (b)(5)(i). However, this case is not 12 ordinary. Recusal Issue 13 When a litigant becomes unhappy with a judge’s rulings in a case, a litigant might 14 seek to force the judge to recuse himself by filing a lawsuit against the judge. But a 15 “‘judge is not disqualified merely because a litigant sues or threatens to sue him.’ Such 16 an easy method for obtaining disqualification should not be encouraged or allowed.” 17 Ronwin v. State Bar of Arizona, 686 F.2d 692, 701 (9th Cir. 1981) (citation omitted), 18 rev’d on other grounds sub nom. Hoover v. Ronwin, 466 U.S. 558 (1984). 19 “‘[A] judge is not disqualified by a litigant’s suit or threatened suit against him, or 20 by a litigant’s intemperate and scurrilous attacks.’” United States v. Sutcliffe, 505 F.3d 21 944, 958 (9th Cir. 2007) (quoting United States v. Studley, 783 F.2d 934, 940 (9th Cir. 22 1986)). Similarly, “[w]here a claim against the undersigned judge is so wholly frivolous 23 that there is no jurisdiction, the assigned judge should be able to decline to recuse and 24 proceed with dismissing the case.” Snegirev v. Sedwick, 407 F. Supp. 2d 1093, 1095 25 (D. Alaska 2006). See also Reddy v. O’Connor, 520 F. Supp. 2d 124, 131 (D.D.C. 2007) 26 (“recusal is not required where the claim asserted is ‘wholly frivolous’ or a litigant has 27 named a judicial officer as a defendant to force him out of the case and hence obtain 28 -4- 1 assignment of a judge the litigant considers more desirable.” (quoting Snegirev, 407 F. 2 Supp. 2d at 1095)). 3 The Court lacks subject-matter jurisdiction over a claim that is “wholly 4 insubstantial and frivolous.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 5 89 (1998). An action under 42 U.S.C. § 1983 may be dismissed as frivolous “where the 6 defense is complete and obvious from the face of the pleadings.” Franklin v. Murphy, 7 745 F.2d 1221, 1228 (9th Cir. 1984). Such claims include those in which “it is clear that 8 the defendants are immune from suit.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). 9 See also Snegirev, 407 F. Supp. 2d at 1097 (claim precluded by judicial immunity was 10 frivolous). Such is the case here. 11 Plaintiff has made no actual allegations against the undersigned, other than a 12 generic allegation that “[a]ll other Defendants have full knowledge of food theft.”4 Thus, 13 Plaintiff’s lawsuit against the undersigned is based, at best, on the undersigned’s rulings 14 in prior cases. As to those rulings, the undersigned is protected by judicial immunity. 15 Judges are absolutely immune from § 1983 suits for damages for their judicial acts 16 except when they are taken “in the ‘clear absence of all jurisdiction.’” 17 Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 18 (1871)); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). An act is “judicial” 19 when it is a function normally performed by a judge and the parties dealt with the judge 20 in his or her judicial capacity. Stump, 435 U.S. at 362; Crooks v. Maynard, 913 F.2d 699, 21 700 (9th Cir. 1990). This immunity attaches even if the judge is accused of acting 22 maliciously and corruptly, Pierson v. Ray, 386 U.S. 547, 554 (1967), or of making grave 23 errors of law or procedure. See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 24 1988). 25 .... 26 .... Stump v. 27 28 4 Similarly, Plaintiff has made no actual allegations against the other federal judges or the vast majority of the other Defendants. -5- 1 The Court finds that Plaintiff’s claim against the undersigned, to the extent 2 Plaintiff has actually made a claim against the undersigned, is precluded by judicial 3 immunity and is frivolous. Thus, the Court declines to recuse itself. 4 C. 5 The Court is required to screen complaints brought by prisoners seeking relief 6 against a governmental entity or an officer or an employee of a governmental entity. 28 7 U.S.C. § 1915A(a). The Court must dismiss a complaint if it is frivolous or malicious, 8 fails to state a claim upon which relief may be granted, or seeks monetary relief from a 9 defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). Dismissal of Lawsuit 10 The Court will dismiss the Complaint because it is frivolous, malicious, and 11 vexatious. In so doing, the Court finds persuasive the reasoning in Sassower v. Abrams, 12 833 F. Supp. 253 (S.D.N.Y. 1993). In that case, the plaintiff was subject to federal 13 injunction orders designed to stop his abuse of the judicial system. Id. at 255-56. The 14 plaintiff filed multiple lawsuits in state court that were removed by the defendants. Id. at 15 255. The federal district court dismissed the cases as frivolous and vexatious, noting that 16 although the lawsuits arguably were not subject to the injunction orders because they 17 were filed in state court and removed to the district court by the defendants, “[the 18 plaintiff] should not be able to use defendants’ removal of these actions as an opportunity 19 to thwart the clear intent of the [injunction orders] by renewing his frivolous and 20 vexatious litigation in this Court.” Id. at 267. The court reviewed the plaintiff’s new 21 lawsuits and his litigation history and concluded that the plaintiff was “engaged in a bad 22 faith attempt to relitigate adjudicated matters by adding the names of judges, officials, 23 and private individuals who have been involved in the numerous past decisions rejecting 24 his claims.” 25 “unequivocally intended to harass the named defendants.” Id. Thus, the court dismissed 26 the lawsuits, stating that the court would “not permit [plaintiff] to circumvent the 27 [injunction orders] and engage in yet another series of vexatious lawsuits in this Court Id. The court concluded that the plaintiff’s new lawsuits were 28 -6- 1 which will harass defendants with needless litigation and result in further abuse of the 2 judicial system.” Id. 3 Plaintiff’s allegations are virtually the same as his allegations presented in 4 numerous lawsuits previously lodged or filed in this Court. Moreover, filing lawsuits 5 against a variety of federal judges simply because they have ruled against him is an 6 unveiled attempt to harass and vex members of the judicial system who are immune from 7 suit. By filing his lawsuit in state court with either the knowledge or the expectation that 8 Defendants would remove the lawsuit to federal court pursuant to 28 U.S.C. § 1441 or 9 § 1442, Plaintiff has engaged in a bad faith attempt to circumvent the 2014 Injunction 10 Order and avoid the court-imposed limitation on the number of his lawsuits and 11 requirement that he obtain permission to file his lawsuit. Permitting Plaintiff to proceed 12 in this fashion would thwart the 2014 Injunction Order and would provide Plaintiff with 13 another flank on which to continue his assault on the federal judiciary. Therefore, the 14 Court, in its discretion, will dismiss this lawsuit as frivolous, malicious, or vexatious. 15 Dismissing the lawsuit preserves Defendants’ right to remove, yet prevents 16 Plaintiff from thwarting the 2014 Injunction Order. Dismissal places Plaintiff in the same 17 position he would have been in if he had filed his lawsuit in this Court at the outset. If 18 Plaintiff had filed his lawsuit here initially, it would have been dismissed because 19 Plaintiff did not comply with the 2014 Injunction Order. Moreover, the lawsuit would 20 have been dismissed under the three-strikes provision of 28 U.S.C. § 1915(g) because 21 Plaintiff’s claims do not satisfy the requirement that he make a “plausible allegation that 22 the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” 23 Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (emphasis added). 24 IT IS ORDERED: 25 (1) Plaintiff’s Complaint and this action are dismissed without prejudice, 26 pursuant to 28 U.S.C. § 1915A(a). The Clerk of Court must enter judgment accordingly 27 and close this case. 28 (2) Defendant Arpaio’s Motion to Dismiss (Doc. 6) is denied as moot. -7- 1 2 (3) The Clerk of Court must update the docket to reflect that Plaintiff is 3 currently confined in the Arizona State Prison Complex-Florence, East Unit, and must 4 send this Order to Plaintiff at that address. 5 6 7 8 9 (4) The Clerk of Court must send a courtesy copy of this Order to the Chief Judge of the United States District Court for the Middle District of Tennessee. (5) The Clerk of Court must accept no further documents for filing in this case number, other than those in furtherance of an appeal. (6) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. 10 § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of 11 this decision would not be taken in good faith. 12 DATED this 5th day of September, 2014. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?