Day v. Pasco County Sheriffs Department et al

Filing 31

MEMORANDUM ORDER Plaintiff is hereby enjoined from filing, without prior authorization of this court. Plaintiff must file a motion for leave to file along with any new complaint, lawsuit, or petition for writ of mandamus that he proposes to file and must attach a copy of this Memorandum Order to it. The motion shall be filed as a miscellaneous case. (SEE MEMORANDUM ORDER FOR FURTHER DETAILS). Signed by Judge Leonard P. Stark on 7/26/13. (cla, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROY A. DAY,
Plaintiff,
v.

Civ. No. 12-171S-LPS

DETECTIVE DANIEL TONER, et al.,
Defendants.
ROY A. DAY,
Plaintiff,
v.

Civ. No. 12-1716-LPS

DEBRA ROBERTS, et aI.,
Defendants.
ROYA.DAY,
Plaintiff,

v.

Civ. No. 12-1717-LPS

DANIEL DISKEY, et al.,
Defendants.
ROY A. DAY,
Plaintiff,

v.

Civ. No. 12-1718-LPS

W AL-MART STORES, INC., et al.,
Defendants.

ROY A. DAY,

Plaintiff,
Civ. No. 12-1719-LPS

v.

SHERIFF BOB WHITE, et aI.,
Defendants.

MEMORANDUM ORDER

At Wilmington this 26th day of July, 2013:
1.

Plaintiff, a resident of the State of Florida, has engaged in filing numerous lawsuits

that contain frivolous legal arguments and that are vexatious and abusive of the judicial process.
Plaintiff filed the lawsuits in the United States District Court for the District of Delaware in an
effort to avoid the sanctions imposed upon him by the United States District Court for the Middle
District of Florida. Since November 26, 2012, Plaintiff has filed the following lawsuits in this
District, all related to a criminal misdemeanor stalking case filed against him on July 6, 2009 in the
Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida, as follows: Day v.
Ibison, Civ. No. 12-1566-LPS; Day v. State ofFlorida, Civ. No. 12-1567-LPS; Day v. Toner, Civ.
No. 12-1715-LPS; Day v. Roberts, Civ. No. 12-1716-LPS; Day v. Diskey, Civ. No. 12-1717-LPS;
Day v. Wal-Mart Stores, Inc., Civ. No. 12-1718-LPS; and Day v. White, Civ. No. 12-1719-LPS.
The seven lawsuits were filed against the State of Florida, Sheriff Bob White, Pasco County
Sheriffs Department, Major Brian Head, Detective Daniel Toner, Donna H. Newton, Daniel
Diskey, Brian Aungst, Jr., Mary Flanerty, Wal-Mart Stores, Inc., James Schroder, Debra Roberts,

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Chris Sprowls, Lynda Barack, Sabrina Farides, Elaine Home, Laurie Nourse, Stanley R. Mills,
Elizabeth Kovachevich, Susan H. Black, J. L. Edmondson, and Steve
2.

Ibison.

Plaintiff has been found to be a vexatious litigant by the United States Supreme

Court, the United States District for the Middle District of Florida, and the District Court of
Appeals of Florida, Second District. In the Middle District of Florida, an Order was entered that
provides for screening and the imposition of a sanction of not less than $1,000 upon the finding
that a proposed complaint filed by Plaintiff is frivolous. Despite the Order, Plaintiff continued
with his frivolous filings, and he has incurred a $4,000 in sanctions. The sanctions remains unpaid
and, therefore, Plaintiff is unable to file lawsuits in the Middle District of Florida. It appears that
he has adopted this Court as his District for filing lawsuits, even though venue is not proper in this
District.
3.

As a result of the numerous filing in this Court, on April 8,2013 Plaintiff was

ordered to show cause why he should not be enjoined from filing any complaint, lawsuit, or
petition for writ of mandamus, filed in the United States District Court for the District of
Delaware: (1) in an effort to avoid the sanctions imposed upon him by the United States District
Court for the Middle District of Florida, or (2) regarding or relating to the criminal misdemeanor
stalking case filed against him on July 6,2009 in the Circuit Court of the Sixth Judicial Circuit in
and for Pasco County, Florida wherein he was found guilty, sentenced, and imprisoned, including,
but not limited to, actions against the State of Florida, Sheriff Bob White, Pasco County Sheriffs
Department, Major Brian Head, Detective Daniel Toner, Donna H. Newton, Daniel Diskey, Brian
Aungst, Jr., Mary Flanerty, Wal-Mart Stores, Inc., James Schroder, Debra Roberts, Chris Sprowls,

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Lynda Barack, Sabrina Farides, Elaine Home, Laurie Nourse, Stanley R. Mills, Elizabeth
Kovachevich, Susan H. Black, J. L. Edmondson, and Steve

Ibison. The Order also dismissed

the complaints he had filed. Plaintiff was given until May 10, 2013 to respond to the show cause
order. On April 16, 2013, Plaintiff filed a motion for an extension of time (Civ. No. 12-1715-LPS
at D.1. 20) to respond to the show cause Order and a notice of appeal (id. at D.1. 21). On July 11,
2013, following affirmance of this Court's rulings by the United States Court of Appeals for the
Third Circuit, Day v. Toner,

F. App'x_, 2013 WL 3481819 (July 9, 2013) (unpublished), the

Court granted Plaintiff s motion for an extension of time to respond to the show cause Order and
Plaintiff filed his response on July 22, 20l3. (See D.1. 29, 30)
4.

A district court has the power to enjoin vexatious litigants from filing meritless

pleadings where the pleadings raise issues identical or similar to those that have already been
adjudicated. See 28 U.S.C. § 1651; Matter o/Packer Ave. Assoc., 884 F.2d 745, 747 (3d Cir.

1989); Yadav v. Surtees, 87 F. App'x 271 (3d Cir. Jan. 27, 2004) (unpublished). The Court, in
contemplating enjoining Plaintiff as a vexatious litigant from future litigation, provided him
sufficient notice and an opportunity to be heard in the form of the show cause Order entered on
April 8,2013. See Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993). Although Plaintiff
responded to the show cause Order, his responses fail to address the concerns of the Court. (See
Civ. Nos. 12-1715-LPS at D.I. 30; 12-1716-LPS at D.1. 19;12-1717-LPS at D.l. 19; 12-1718-LPS at
D.1. 19;12-1719-LPS at D.l. 19) Instead he speaks to the issue ofthis Court's jurisdiction and
seeks a declaration that he may appeal the matter to the United States Court of Appeals for the
Third Circuit.

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5.

Plaintiff has failed to show cause why he should not be enjoined from filing any

complaint, lawsuit, or petition for writ of mandamus filed in the United States District Court for
the District of Delaware in an effort to avoid the sanctions imposed upon him by the United States
District Court for the Middle District of Florida or regarding or relating to a criminal misdemeanor
stalking case filed against him on July 6, 2009, in the Circuit Court of the Sixth Judicial Circuit in
and for Pasco County, Florida, wherein he was found guilty and sentenced, including, but not
limited to, actions against the State of Florida, Sheriff Bob White, Pasco County Sheriff s
Department, Major Brian Head, Detective Daniel Toner, Donna H. Newton, Daniel Diskey, Brian
Aungst, Jr., Mary Flanerty, Wal-Mart Stores, Inc., James Schroder, Debra Roberts, Chris Sprowls,
Lynda Barack, Sabrina Farides, Elaine Horne, Laurie Nourse, Stanley R. Mills, Elizabeth
Kovachevich, Susan H. Black, 1. L. Edmondson, and Steve E. Ibison.
IT IS THEREFORE ORDERED that:
1.

Plaintiff is hereby enjoined from filing, without prior authorization of the Court, any

complaint, lawsuit, or petition for writ of mandamus in an effort to avoid the sanctions imposed
upon him by the United States District Court for the Middle District of Florida or regarding or
relating to a criminal misdemeanor stalking case filed against him on July 6, 2009 in the Circuit
Court ofthe Sixth Judicial Circuit in and for Pasco County, Florida wherein he was found guilty
and sentenced, including, but not limited to, actions against the State of Florida, Sheriff Bob
White, Pasco County Sheriffs Department, Major Brian Head, Detective Daniel Toner, Donna H.
Newton, Daniel Diskey, Brian Aungst, Jr., Mary Flanerty, Wal-Mart Stores, Inc., James Schroder,

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Debra Roberts, Chris Sprowls, Lynda Barack, Sabrina Farides, Elaine Horne, Laurie Nourse,
Stanley R. Mills, Elizabeth Kovachevich, Susan H. Black, J. L. Edmondson, and Steve
2.

Ibison.

Plaintiff must file a motion for leave to file along with any new complaint, lawsuit,

or petition for writ of mandamus that he proposes to file and must attach a copy of this
Memorandum Order to it. The motion shall be filed as a miscellaneous case.
3.

As an exhibit to any motion seeking such leave, there must be attached a declaration

prepared pursuant to 28 U.S.C. § 1746 or a sworn affidavit certifYing that (a) the document raises a
new issue that has never been previously raised by the filer in this or any other court, (b) the claim
or issue is not frivolous, (c) the document is not filed in bad faith, and (d) a statement as to the
basis for jurisdiction and venue in the District of Delaware.
4.

The Court shall deny any motion for leave to file if the proposed document is

frivolous, vexatious, or harassing. If the motion is denied, the document shall not be filed. The
failure to comply with this Memorandum Order shall be sufficient grounds for this Court to deny
any motion for leave to file.
5.

If the motion for leave to file is granted, Plaintiff shall submit the Order as evidence

that he has obtained the permission of the Court for the filing.
6.

No document submitted by Plaintiff shall be filed prior to obtaining leave to file

unless the document is specifically identified as a motion for leave to file, and unless the document
contains an affidavit or sworn declaration as required by this Memorandum Order, and a copy of
this Memorandum Order.

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7.

The Clerk's office shall not accept any filing fees, cover sheets, applications for

leave to proceed without prepayment of fees, summonses, or U.S. Marshals forms, in connection
with a motion for leave to file, unless and until leave is granted.
8.

Plaintiff is placed on notice that should leave be granted but the case is not properly

venued in this District, the Court will transfer the case to the proper venue without ruling on the
merits of the case and without ruling on any motions, including motions for leave to proceed in
forma pauperis.

II

UNITED STATES DISTRICT JUDGE

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