McCullough v. Fox et al

Filing 34

MEMORANDUM AND ORDER granting 1 Plaintiff's motion to proceed in forma pauperis; directing the Clerk to not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both; and denying Plaintiff's pending motions. Signed by Judge Stephen N Limbaugh, Jr on 9/9/09. (hph)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION R .S . MCCULLOUGH, P la in t if f , v. T IM FOX, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

N o . 407CV931 SNLJ

M E M O R A N D U M AND ORDER T h is matter is before the Court upon the motion of plaintiff for leave to co m m en ce this action without prepayment of the filing fee pursuant to 28 U.S.C. § 1 9 1 5 . Upon consideration of the financial information provided with the motion, the C o u rt finds that plaintiff is financially unable to pay any portion of the filing fee. As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28 U .S .C . § 1915. Additionally, the Court has reviewed the complaint and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). 28 U.S.C. § 1915(e) P u r s u a n t to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from

su ch relief. An action is frivolous if it "lacks an arguable basis in either law or fact." N eitzk e v. Williams, 490 U.S. 319, 328 (1989). A Court may determine that an action o r allegation is "malicious" by referring to objective factors such as the circumstances an d history surrounding the filing, the tone of the allegations, and whether probative f a cts vital to the life of the lawsuit have been alleged. An action is malicious if it is u n d ertak en for the purpose of harassing the named defendants and not for the purpose o f vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 ( E .D .N .C . 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). T o determine whether an action fails to state a claim upon which relief can be g ran ted , the Court must engage in a two-step inquiry. First, the Court must identify the a lle g a tio n s in the complaint that are not entitled to the assumption of truth. Ashcroft v . Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include "legal conclusions" and "[ t]h r e ad b a re recitals of the elements of a cause of action [that are] supported by mere co n clu so ry statements." Id. at 1949. Second, the Court must determine whether the co m p lain t states a plausible claim for relief. Id. at 1950-51. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sen se." Id. at 1950. The plaintiff is required to plead facts that show more than the "m ere possibility of misconduct." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id.
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a t 1951. When faced with alternative explanations for the alleged misconduct, the C o u rt may exercise its judgment in determining whether plaintiff's conclusion is the m o st plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 5 1 -5 2 . T h e Complaint P lain tiff brings this action pro se alleging violations of his civil rights under 42 U .S .C . § 1981, 1983, 1985, in addition to the Americans with Disabilities Act, 42 U .S .C . §§ 12101, et seq. In his sixty-two (62) page complaint, plaintiff alleges that he is seeking to secure redress under the First, Fourth, Fifth, Sixth and Fourteenth A m en d m en ts to the United States Constitution, for "violation of freedom of speech, retaliatio n for seeking civil rights redress on behalf of plaintiff and others, separation o f powers doctrine, discriminatory, arbitrary and capricious acts, to void u n c o n s titu tio n a lly vague rules and other tort law concepts, including common law c o n c e p ts ." P lain tiff is a resident of Pulaski County, Arkansas, and brings this action against th e State of Arkansas and several state employees, including: (1) the Honorable Tim D . Fox, Circuit Judge in the Sixth Judicial District of Arkansas, which includes Pulaski C o u n ty; (2) Pat O'Brien, the Clerk of Court in the Sixth Judicial District; (3) the

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H o n o r a b le Tom Glaze, Justice, Arkansas Supreme Court;1 (4) the Honorable Robert B r o w n , Justice, Arkansas Supreme Court; (5) the Honorable James Hannah, Justice, A r k a n s as Supreme Court; (6) the Honorable Annabelle Clinton Imber, Justice, A r k a n s a s Supreme Court; (7) the Honorable Donald Corbin, Justice, Arkansas S u p rem e Court; (8) the Honorable Jim Gunter, Justice, Arkansas Supreme Court; and (9 ) Charles Holladay, Sheriff of Pulaski County. Plaintiff also names as defendants G ary Moran and Entropy, who are the purported purchasers of plaintiff's house and th e "ones that applied for a writ of assistance to attempt to extricate plaintiff from p lain tiff's residence." Not named as a defendant is plaintiff's prior "mortgage

co m p an y," who plaintiff states refused to give a proper accounting and statement to s u p p o r t an alleged mortgage deficiency.2 The Court will do its best to summarize p lain tiff's conclusory, generalized, and often rambling allegations as follows. Plaintiff acquired a house in 1994, pursuant to a mortgage taken out with some u n n am ed mortgage company, presumably Select Portfolio Services, Inc., the company r ef er re d to in the pleadings attached to plaintiff's complaint. Plaintiff states that at

Plaintiff states that the members of the Arkansas Supreme Court have p rev io u sly been sued by him and are "currently involved in litigation as defendants w ith plaintiff."
2

1

Plaintiff states that he previously filed a civil action against this entity.
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so m e point he "came to an agreement" with the mortgage company to "pay off the n o te." Plaintiff claims that the agreement detailed that he would make payments "n early five times the original monthly amount due." Plaintiff claims that he made said p a y m e n ts but "at the last payment," the unnamed mortgage company "tried to assert th at it was due more payments." Plaintiff states that "the company threatened to use an archaic and unconstitutional non-judicial foreclosure procedure that Arkansas has, b u t plaintiff filed suit against the company before any use of the same." 3 Plaintiff has a tta ch e d a copy of his state court complaint to his pleading. The pleading reveals that p lain tiff filed the state court action in July of 2005, relating to a proposed forced sale o f his residence on July 12, 2005. Plaintiff states this his lawsuit was assigned to the Honorable Tim D. Fox, but th at defendant Fox "never caused or sent any type of hearing or trial notice to p lain tiff." Rather, according to plaintiff, "at some later point, without notice of the like to plaintiff, Fox issued a directive allowing for the sale of plaintiff's residence." From th e Court filings attached to plaintiff's complaint, it appears that the Order and Decree o f Foreclosure was issued on April 20, 2006, by defendant Fox.

The Court believes plaintiff is referring to the case of McCullough v. Select P o rtfo lio Services, Inc., No. 05-9186 (Cir. Ct. Pulaski Cnty).
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3

Defendant O'Brien allegedly conducted the "Clerk's sale" per Fox's directives, an d defendants "Moran or Entropy, Inc. [are] alleged to have purchased at the sale." P la in tif f states that after learning of the sale of his residence, he moved for a h earin g in front of defendant Fox to address the purportedly constitutional problems w ith "process." Plaintiff claims that defendant Fox failed to provide him with a h e a rin g , and as a result, plaintiff filed a notice of appeal, which plaintiff states was assig n ed to the Arkansas Court of Appeals.4 Plaintiff claims that he additionally "f o u g h t for and received a stay during the appeal." Presumably, the stay which p lain tiff references was a stay of the sale of his property. Plaintiff asserts that despite th e Circuit Court having "lost jurisdiction over the matter," O'Brien "reversed" the stay a n d "issued a writ" to the Sheriff, defendant Holladay, ordering the removal of plaintiff fro m his residence, on or about February 20, 2007. Plaintiff states that he was "r em o v e d and then restored a few hours later," because the execution of the writ was im p r o p e r . Plaintiff claims that a "stay" (presumably relating to the sale of the

p r o p e rty ) was then issued by the Appellate Court. Plaintiff claims that a ruling was th e n issued by the Supreme Court of Arkansas (rather than the Court of Appeals), w h ic h was "adverse" to plaintiff. However, later in his complaint, plaintiff claims that

The Court believes plaintiff is referring to the case of McCullough v. Select P o r tf o lio Services, Inc., No. CA07-115 (Ark. Ct. App.).
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4

h is "appeal is still pending at the Court of Appeals for Arkansas, but due to the current e ff o r ts and lack of affirmative action, plaintiff is faced with the prospects of the sheriff r etu r n in g to remove plaintiff from his residence." Attached to plaintiff's complaint are copies of a myriad of documents from other state court actions initiated by plaintiff regarding the aforementioned facts. In addition to these documents, plaintiff has filed a number of motions seeking, among other th in g s , an injunction prohibiting the foreclosure and sale of his residence. Plaintiff a ls o appears to be under the mistaken impression that he removed a case he initiated in state court, McCullough v. SPS, No. CV2005-9186-Pulaski County Circuit, into the p resen t action. Plaintiff seems unaware that he cannot remove his own action to fed eral court. See, e.g., Scott v. Communications Services, Inc., 762 F.Supp. 147 (S.D. T ex 1991) (the pleading by the original defendant of a counterclaim does not put the o rig in al plaintiff in the position of a defendant so as to entitle him or her to remove the case); see also, Carlton v. Withers, 609 F.Supp. 146 (M.D. La. 1985); Estate v. C itizen s Nat. Bank of Evansville, 563 F.Supp. 424 (N.D. Miss. 1983). In light of his "attem p ted removal," plaintiff has filed several motions for contempt seeking to hold d efen d an t Fox, an individual named Keith Morrison, an individual named Andrew L.

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C lark ,5 defendant O'Brien, and defendant Holladay, in contempt for continuing to rev iew /p u rsu e the case in state court and remove plaintiff from his property. 6 Lastly, the Court notes that the case was stayed during the pendency of p lain tiff's bankruptcy proceedings.7 On July 23, 2009, the Court was informed by the H o n o r a b le James G. Mixon, United States Bankruptcy Judge, that the Trustee had en tered an Order of Abandonment with regard to plaintiff's action, that the discharge h ad been entered and the provisions of the stay had been terminated by operation of law pursuant to 11 U.S.C. § 362(c)(1) and (2)(C). Accordingly, it is now appropriate fo r this Court to review plaintiff's action under § 1915. D isc u s s io n T h e circumstances and history surrounding the filing of this action demonstrate th at the complaint is legally malicious. Spencer, 656 F. Supp. at 463. Although p lain tiff insists his claims show some sort of violation of his civil rights, it is apparent
5

It appears that Mr. Morrison and Mr. Clark are counsel of record for Select P o rtfo lio Services, Inc. See Docket No. 29 and 31. A s plaintiff cannot remove his own action to federal court, let alone remove a state court action directly into an existing federal court action, plaintiff's motions f o r contempt will be summarily denied. Plaintiff is advised that his attempted r em o v a l of McCullough v. SPS, No. CV2005-9186-Pulaski County Circuit was im p ro p er and does not preclude defendants from continuing to litigate this action in state court.
7 6

In Re Reginald McCullough, 4:08BK10095 (E.D. Ark).
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th at plaintiff is largely attempting to relitigate the claims that were adjudicated against h im in his previous state court cases, namely, plaintiff seeks the return of the property h e lost in foreclosure. Plaintiff is barred from relitigating those claims because of the d o ctrin e of res judicata. Moreover, the circumstances of the filing and the tone of the a lle g a tio n s demonstrate that plaintiff is attempting to punish those persons involved w ith the previous litigation, including the judges who purportedly ruled against him, th e Clerk of Court who authorized the sale of his residence, the Sheriff who attempted to evict him from his home, and the buyers of the residence at the judicial sale. The C o u rt therefore finds that this action has been filed for an improper purpose, and the C o u rt is required to dismiss this action as malicious pursuant to 28 U.S.C. § 1 9 1 5 ( e) (2 ) ( B ) . A d d itio n ally, the Court finds that several of plaintiff's allegations are frivolous an d generally fail to state a claim upon which relief may be granted. For example, plaintiff's complaint is legally frivolous as to Judges Fox, Glaze, Brown, Hannah, D an ielso n , Imber, Corbin, and Gunter, as they are "entitled to absolute immunity for all judicial actions that are not `taken in a complete absence of all jurisdiction.'" Penn v . United States, 335 F.3d 786, 789 (8th Cir. 2003) (quoting Mireless v. Waco, 502 U .S . 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349 (1978). Although plaintiff ap p ears to be arguing that these judges all engaged in some sort of civil conspiracy to
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v io late his rights, he has not included any factual allegations to show a "meeting of the m in d s" concerning unconstitutional conduct. See Mershon v. Beasely, 994 F.2d 449, 4 5 1 (8th Cir. 1993) (noting that there must be something more than the summary alleg atio n of conspiracy). Additionally, plaintiff's claims against the State of Arkansas are barred by the E lev en th Amendment, which bars a citizen from bringing suit in federal court against a state, a state agency, or a state official sued in his official capacity for monetary d a m a g e s which must be paid from public funds in the state treasury. Will v. Michigan D ep 't of State Police, 491 U.S. 58, 66 (1989); Pennhurst State Sch. & Hosp. v. H a ld e r m a n , 465 U.S. 89, 100 (1984). S ev eral of plaintiff's claims are also subject to dismissal because they are made u p of nothing more than generalized and conclusory allegations. Although "[c]ivil rig h ts pleadings should be construed liberally, at the very least, however, the complaint m u st contain facts which state a claim as a matter of law and must not be conclusory." F r ey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). Plaintiff's generalized an d conclusory statement that he was discriminated against on the basis of his u n id e n t if ie d disability are subject to dismissal as this theory is completely devoid of a n y factual allegations concerning the claim. Similarly, plaintiff's bald assertions that h is First Amendment rights were violated, and that he was subjected to retaliation "for
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seek in g civil rights redress" lack the necessary factual allegations to survive § 1915 r e v ie w . Under Arkansas law, the doctrine of official immunity shields public officers an d state officials from civil liability for injuries arising out of their discretionary acts, fu n ctio n s, or omissions performed in the exercise of their official duties. Ark.Code A n n . § 19-10-305. Generally speaking, discretionary acts are those acts involving the o fficial's exercise of reason in developing a means to an end, and the employment of ju d g m en t to determine how or whether an act should be performed or a course pursued. H o w e v e r, official immunity does not apply where the official's discretionary act was u n d ertak en in bad faith or with malice. Fegans v. Norris, 89 S.W.3d 919 (Ark. 2002) ( a bare allegation of willful and wanton conduct will not suffice to prove malice n ecessary to overcome statutory immunity of state officers and employees); Okruhlik v . University of Arkansas, 255 F.3d 615 (8th Cir. 2001). There is no allegation that d e f en d a n ts O'Brien or Holladay acted in bad faith in following the sale orders entered b y the Court, or in ejecting plaintiff from his residence. See Martin v. Hendren, 127 F .3 d 720 (8th Cir. 1997) (noting that a judge's absolute immunity extends to public o ff icials for acts they are specifically required to do under court order or at a judge's d irectio n ); Chambers v. Stern, 994 S.W.2d 463 (Ark 1999); see also, Thompson v. B ak er, 133 F.Supp., 247 (D.C. Ark. 1955) (recognizing that a writ of process, valid on
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its face, affords complete protection to a sheriff, constable, or other ministerial officer f ro m liability for any proper or necessary acts done in executing such writ of process). M o r e o v er, plaintiff has not stated a claim against the purported buyers of his p ro p erty, defendants Moran and Entropy, as he has not alleged that these defendants w ere state actors or that there was a "meeting of the minds" between Moran and E n tro p y and any state actors, which violated plaintiff's rights. See Johnson v.

O u tb o a rd Marine Corp., 172 F.3d 531, 536 (8th Cir.1999) (noting that "private actors m ay incur section 1983 liability only if they are willing participants in a joint action w ith public servants acting under color of state law" and to state a claim against a p riv ate actor under § 1983, a plaintiff "must establish, at the very least, an agreement o r meeting of the minds between the private and state actors, and a corresponding v io la tio n of the plaintiffs' rights under the Constitution or laws of the United States"). S im p ly put, there is "nothing in the language of the Due Process Clause [which] req u ires the State to protect the life, liberty, and property of its citizens against invasion b y private actors." DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 1 8 9 , 195 (1989) Lastly, this Court notes that much of what plaintiff is seeking is a review of ad v erse state court holdings. Federal district courts are courts of original jurisdiction; th e y lack subject matter jurisdiction to engage in appellate review of state court
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d e c is io n s . Postma v. First Fed. Sav. & Loan, 74 F.3d 160, 162 (8th Cir. 1996). "R ev iew of state court decisions may be had only in the Supreme Court." Id. In consequence, the Court will order this action dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). A c c o r d in g ly , IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma p au p eris [Doc. #1] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause p ro cess to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that plaintiff's pending motions are DENIED. A n appropriate Order of Dismissal shall accompany this Memorandum and O r d e r. D ated this 9th Day of September, 2009.

S T E P H E N N. LIMBAUGH, JR. U N IT E D STATES DISTRICT JUDGE

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