ELLIS v. BERRY et al

Filing 510

ORDER denying as moot 504 Motion; denying as moot 505 Motion for Leave to Proceed in forma pauperis; denying as moot 507 Motion to Stay; denying as moot 508 Motion. In light of Plaintiffs history of frivolous and vexatious filings and to curb further abuse, the Court imposes sanctions for a period of one year (to run from the date that this Order is filed). Ordered by US DISTRICT JUDGE LESLIE ABRAMS GARDNER on 07/23/2021. (mdm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
JEROME ELLIS,
Plaintiff,
v.
DR. WOOD, et al.,
Defendants.

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CASE NO.: 1:17-CV-171 (LAG) (TQL)

ORDER
Before the Court are Plaintiff’s latest Motions, including his Motion to Waive All
Fees Due to Fraud for Extraordinary Reasons (Doc. 504), Motion for Leave to Proceed In
Forma Pauperis (IFP) to Perpetuate Defendant’s Testimony (Doc. 505), Motion to Stay
(Doc. 507), and Motion to Withdraw and Recommence Action (Doc. 508). In Plaintiff’s
Motion to Waive All Fees, Plaintiff “moves the Court for waiver of all fees on all
[D]efendants in their individual capacity acting under color of state law.” (Doc. 504 at 1).
Additionally, Plaintiff again—for at least the sixteenth time—objects to the Court’s
dismissal of all Defendants in this case. (Id. at 3–4; see Docs. 360, 362, 364, 374, 387, 392,
407, 415, 422, 432–35, 450, 452, 457, 464). Plaintiff’s Motion to Proceed IFP seeks to
permit Plaintiff to “proceed in forma pauperis to perpetuate Defendants’ testimon[ies].”
(Doc. 505 at 1). Plaintiff’s Motion to Stay seeks the appointment of counsel rather than a
stay of the case. (Doc. 507). Last, Plaintiff’s Motion to Withdraw and Recommence Action
seeks to withdraw “all leaves to intervene filed in this case” and to “recommence [this]
action . . . on all [D]efendants.” (Doc. 508 at 1).
As judgment has been entered in favor of Defendants, Plaintiff’s Motions (Docs.
504, 505, 507, 508) are DENIED as moot. To the extent Plaintiff raises objections and
seeks to “recommence” this case, the Court construes these as a Motion for Relief from a
Judgment or Order pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b) provides

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a party with an avenue to seek relief “from final judgment, order, or proceeding.” Fed. R.
Civ. P. 60(b). Under Rule 60(b), a court can provide relief for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason
that justifies relief.
Id. Even with a liberal reading of Plaintiff’s Motions, Plaintiff does not assert any of the
first five circumstances. (See Doc. 504 at 3–4; Doc. 508 at 1, 3). Nor does the “catch-all
provision” of Rule 60(b)(6) provide a basis for the relief sought by Plaintiff. See, e.g.,
United States v. Walbridge Aldinger Co., No. 3:11-cv-403-J-20TEM, 2012 WL 12904777,
at *1 (M.D. Fla. Oct. 22, 2012) (assuming a party argued under Rule 60(b)(6) when it failed
to assert the first five circumstances). Relief under Rule 60(b)(6) “is intended ‘only for
extraordinary circumstances.’” Olmstead v. Humana, Inc., 154 F. App’x 800, 805 (11th
Cir. 2005) (per curiam) (quoting Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316
(11th Cir. 2000)). A party seeking relief under Rule 60(b)(6) has “the burden of showing
that absent such relief, an ‘extreme’ and ‘unexpected’ hardship will result.” Griffin v.
Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984) (citing United States v. Swift & Co.,
286 U.S. 106, 119 (1932)). Plaintiff fails to meet his burden as Plaintiff’s Motions do not
cite any justification whatsoever. Accordingly, to the extent Plaintiff requests relief from a
judgment or order, that request is DENIED.
The Court additionally finds that Plaintiff’s insistence on repeatedly filing
nonsensical, frivolous motions and frivolous civil actions in this Court is both vexatious
and abusive. 1 Since the Court dismissed Plaintiff’s Complaint, Plaintiff has filed
A review of court records on the Federal Judiciary’s Public Access to Court Electronic Records
(PACER) database reveals the Plaintiff has filed several lawsuits in federal court and that at least three of
his complaints or appeals have been dismissed as frivolous, malicious, or for failure to state a claim. See
Ellis v. Moody, No. 7:12-CV-85 (HL), (Doc. 51) (M.D. Ga. June 25, 2014) (adopting an R&R which
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approximately 111 motions or notices rehashing the same allegations and objections—all
of which have been denied. (See Docket). Moreover, Plaintiff has appealed eleven times in
this matter alone (Docs. 65–66, 80, 158, 182, 215, 238, 259, 369, 429, 468), and each
appeal has been denied. (See Docs. 82, 103, 224, 232, 338, 361, 368, 385, 417, 428, 461,
479). Recently, in a separate case transferred to the Southern District of Georgia, the court
directed the Clerk of Court to stop accepting further filings “except for a single notice of
appeal” due to Plaintiff’s excessive motions which were “characterized as general
grievances

and

reassertions

of

Plaintiff’s

claim.”

See

Ellis

v.

Oliver,

No. 3:20-cv-33-DHB-BKE, (Doc. 53 at 1) (S.D. Ga. Oct. 5, 2020).
The Eleventh Circuit has explained that “[a]ccess to the courts is unquestionably a
right of considerable constitutional significance,” but it is “neither absolute nor
unconditional.” Miller v. Donald, 541 F.3d 1091, 1096 (11th Cir. 2008) (citations omitted).
“Conditions and restrictions on each person’s access are necessary to preserve the judicial
resource for all other persons. Frivolous and vexatious law suits threaten the availability of
a well-functioning judiciary to all litigants.” Id. Accordingly, “district courts are authorized
by the All Writs Act, 28 U.S.C. § 1651(a), to restrict access to vexatious and abusive
litigants.” Id. Such restrictions, however, must be measured and tailored to the specific
circumstance and should seek to protect access to the courts for litigants. See Smith v.
United States, 386 F. App’x 853, 857–58 (11th Cir. 2010) (per curiam). The Eleventh
Circuit has “upheld an injunction prohibiting a frequent litigant from filing any new actions
against his former employer without first obtaining leave of the court; an injunction
directing the clerk to mark any papers submitted by a frequent litigant as received but not
to file the documents unless a judge approved them for filing; and an injunction ordering a
frequent litigant to send all pleadings to a judge for prefiling approval.” Id. (internal
citations omitted).

dismissed Plaintiff’s complaint for failure to state a claim); Ellis v. Allen, No. 7:14-CV-79 (HL) (TQL),
(Doc. 10) (M.D. Ga. July 25, 2014) (dismissing complaint as frivolous); Ellis v. Hart, No. 09-11660-C
(11th Cir. June 19, 2009) (dismissing appeal as frivolous); Ellis v. Danforth, No. 13-13760-A (11th Cir.
Apr. 17, 2014) (dismissing appeal as frivolous).

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Furthermore, in Cofield v. Alabama Public Service Commission, the Eleventh
Circuit upheld district court’s dismissal with prejudice of all the prisoner-plaintiff’s
pending suits and enjoined him from filing “any complaints or papers in the future” without
prior, judicial approval. 936 F.2d 512, 514–19 (11th Cir. 1991).
Plaintiff has engaged in a well-documented practice of filing frivolous and vexatious
litigation. Accordingly, the Court hereby ORDERS as follows:
1. The Court certifies, pursuant to 28 U.S.C. § 1915, that an appeal from this Order
would not be taken in good faith and, therefore, in forma pauperis status is DENIED
for appeal.
2. In light of Plaintiff’s history of frivolous and vexatious filings and to curb further
abuse, the Court imposes the following sanctions for a period of one year (to run
from the date that this Order is filed) on all civil actions Plaintiff seeks to initiate:
A. The Clerk shall receive the papers that Plaintiff submits, open a
miscellaneous case number, and forward the documents to the presiding
District Judge to determine whether Plaintiff qualifies as indigent and
whether he has stated a claim with any arguable merit.
B. Upon receipt, the Court will read and consider Plaintiff’s filings. Only if a
given pleading alleges a plausible claim for relief will the Court allow it to
be filed. See 28 U.S.C. § 1915(e)(2).
3. With the exception of motions to proceed on appeal in forma pauperis, the Clerk
shall docket motions or papers in any previously dismissed cases as a notice of filing
rather than a motion. This includes the following cases:
• Ellis v. Berry, No. 1:17-CV-171 (LAG) (TQL) (M.D. Ga. 2017)
• Ellis v. Berry, No. 1:19-CV-76 (LAG) (TQL) (M.D. Ga. 2019)
• Ellis v. Hart, No. 7:07-CV-11 (HL) (RLH) (M.D. Ga. 2007)
• Ellis v. Moody, No. 7:12-CV-85 (HL) (M.D. Ga. 2012)
• Ellix v. Allen, No. 7:14-CV-79 (HL) (TQL) (M.D. Ga. 2014)
Such documents shall be retained for appellate and historical purposes only. If a
notice of appeal is filed, the Clerk shall forward a copy of this Order, the notice of
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appeal, and the dismissed complaint or petition to the Eleventh Circuit Court of
Appeals. Plaintiff shall remain responsible for appellate filing fees (or he may move
this Court for in forma pauperis status on appeal, per Rule 24 of the Federal Rules
of Appellate Procedure).
These filing restrictions do not apply to any criminal case in which Plaintiff is named
as a defendant, or to any proper (e.g., non-successive) application for a writ of habeas
corpus. The Court notes, however, that Plaintiff simply labeling a pleading as “habeas
corpus” will not escape this Order. As substance—not form—governs, the Court will
review all filings regardless of how they are styled in accordance with the parameters set
forth above.
Once these restrictions expire, Plaintiff must ensure that any future litigation he
commences follows the Federal Rules of Civil Procedure and this Court’s Local Rules.
Failure to do so may result in the Court re-imposing these restrictions for a longer duration.
SO ORDERED, this 23rd day of July, 2021.

/s/ Leslie A. Gardner

LESLIE A. GARDNER, JUDGE
UNITED STATES DISTRICT COURT

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