Burns v. State of Georgia, et al.
Filing
10
ORDER granting re 2 MOTION for Leave to Proceed in forma pauperis. The plaintiff is directed to amend the complaint within 21 days of the date this Order is served. Signed by Magistrate Judge G. R. Smith on 4/8/14. (bcw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ELLISON ROBERT BURNS, SR.,
Plaintiff,
v.
Case No. CV413-261
U.S. DEPTPARTMENT OF
LABOR, et al. ,
Defendants.
ORDER
Over the years this Court granted serial pro se litigator Ellison
Robert Burns, Sr. leave to file in forma pauperis (IFP) in a series of
frivolous lawsuits alleging discrimination and other wrongs visited
against him by various entities with whom he has had union if not
employment participation. 1 Based on his IFP filings, the Court
Burns v. Georgia Stevedore Assoc. , CV410-170, doc. 10 at 1 n. 1 (S.D. Ga. Dec. 6,
2010) (“Burns is a repeat filer in this Court. See Burns v. Zadach , No. CV408-197
(S.D. Ga. Apr. 12, 2010) (dismissed for failure to prosecute); Burns v. Int’l
Longshoreman Ass’n, No. CV408-072 (S.D. Ga. Mar. 30, 2009) (dismissed on
summary judgment for failure to provide any admissible evidence of discrimination);
Burns v. I.L.A. Local 1414 , No. CV408-160 (S.D. Ga. Sept. 16, 2008) (dismissed for
failure to state a claim for relief).”); id. at 4 (advising dismissal for failure to state a
claim), adopted, doc. 15 (S.D. Ga. Jan. 3, 2011); Burns v. Sav. Maritime Assoc. ,
'
GRANTS his IFP motion. Doc. 2.
But Burns also knows the drill. The Court can sua sponte dismiss
his case if, inter alia, his complaint fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2). This dismissal power “is
designed largely to discourage the filing of, and waste of judicial and
private resources upon, baseless lawsuits that paying litigants generally
do not initiate because of the costs of bringing suit and because of the
threat of sanctions for bringing vexatious suits under Federal Rule of
Civil Procedure 11.” Neitzke v. Williams , 490 U.S. 319, 327 (1989).
This case presents as a typical Burns lawsuit: A wild swing and a
miss. He alleges that he recently attempted to run “for the office of the
Board of Directors” of a local union but was deemed ineligible under that
union’s bylaws and constitution because he was “convicted of a crime
subject to the prohibitions under 29 U.S.C. § 504(a) of the Landrum-
CV410-169, doc. 9 (S.D. Ga. Dec. 29, 2010) (advising dismissal for failure to state a
claim), adopted, doc. 12 (S.D. Ga. Feb. 16, 2011); Burns v. Int’l Longshoreman Assoc. ,
CV410-171, doc. 2 (S.D. Ga. Aug. 23, 2010) (advising dismissal with “Fed. R. Civ. P.
11 warning against filing future such cases.”), adopted, doc. 7 (S.D. Ga. Jan. 14,
2011). All of these lawsuits were dismissed as baseless; they form a cluster within a
larger group of dead-end lawsuits that Burns has filed over the years -- all on the
taxpayers’ dime.
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Griffin Act.” 2 Doc. 1 at 7. He thus wants to sue apparently anyone he
thinks might have some way to respond to his sole request for relief:
“Request for Removal of Bar Restriction 29 U.S.C. § 504(a) of the
Landrum-Griffin Act On a Convicted Crime.” Id. at 3. But he attaches to
his Complaint a union letter disqualifying him because “you were
2
Burns also means the Labor-Management Reporting and Disclosure Act (LMRDA),
29 U.S.C. § 504, “widely known as the Landrum-Griffin Act,” Perez v. Postal Police
Officers Ass'n , 736 F.3d 736, 739 (6th Cir. 2013); see also United States v. PATCO ,
653 F.2d 1134, 1142 (7th Cir. 1981). In part § 504 provides:
No person who is or has been a member of the Communist Party or who has
been convicted of, or served any part of a prison term resulting from his
conviction of, robbery, bribery, extortion, embezzlement, grand larceny,
burglary, arson, violation of narcotics laws, murder, rape, assault with intent
to kill, assault which inflicts grievous bodily injury, or a violation of subchapter
III or IV of this chapter any felony involving abuse or misuse of such person's
position or employment in a labor organization or employee benefit plan to
seek or obtain an illegal gain at the expense of the members of the labor
organization or the beneficiaries of the employee benefit plan, or conspiracy to
commit any such crimes or attempt to commit any such crimes, or a crime in
which any of the foregoing crimes is an element, shall serve or be permitted to
serve-....
(2) as an officer, director, trustee, member of any executive board or similar
governing body, business agent, manager, organizer, employee, or
representative in any capacity of any labor organization . . . .
29 U.S.C.A. § 504(a)(1)-(2); see also Local 1516, Intern. Longshoremen's Ass'n, AFLCIO v. U. S ., 451 F. Supp. 685, 688 (S.D. Ga. 1978) (union agent, who pled nolo
contendere to charges of embezzlement, was “convicted” within meaning of statutes
prohibiting a convicted person from serving as a union business agent or trustee of
an employee benefit plan); Lippi v. Thomas , 298 F. Supp. 242, 248 (M.D. Pa. 1969)
(29 U.S.C. § 504(a), barring from holding of union office for five years persons
convicted of enumerated crimes is intended to apply to nonunion conduct as well as
union conduct).
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convicted of a crime subject to the prohibitions under 29 U.S.C. § 504(a)
of the Landrum-Griffin Act.” Doc. 1 at 7. Burns never alleges that he
has not been convicted of such a crime. An encyclopedist explains that:
The employment restriction is not absolute. There are rare
occasions where the 13-year ban might be considered too harsh. In
such cases, a defendant may seek one of three types of relief: (1)
petition the sentencing court to reduce the duration of the
disability, (2) obtain full restoration of citizenship rights, or (3)
petition the sentencing court for an exemption based on the court's
determination that the petitioner's service in a prohibited capacity
does not violate the purpose of the [Labor-Management Reporting
and Disclosure Act (LMRDA)].
12 E MP . C OORD . L ABOR RELATIONS § 65:2 (Apr. 2014) (emphasis added).
Burns must plead facts showing that he is either (a) free of a
disqualifying conviction; or (b) fits within one of those “rare occasions.”
United States v. Peters , 938 F. Supp. 2d 296, 301-02 (N.D.N.Y. 2013),
cited in 2 E MP . C OORD . LABOR RELATIONS § 65:2; United States v.
Cullison , 422 F. Supp. 2d 65, 74-75 (D.D.C. 2006) (defendant convicted of
crimes stemming from use of official position at union to extort from its
members had not had his citizenship rights fully restored, and thus was
not entitled to relief from disability under LMRDA; state's restoration of
defendant's citizenship rights did not restore rights lost pursuant to
federal conviction). Note, to that end, that this Court has not sentenced
4
him to anything. For that matter, he also must show that this Court
somehow has the authority to grant his “Request for Removal of Bar
Restriction 29 U.S.C. § 504(a) of the Landrum-Griffin Act On a
Convicted Crime.” Doc. 1 at 3.
Within 21 days of the date this Order is served, then, Burns must
amend his complaint to fill in these gaps and thus plead facts and cite
law showing why his case is not subject to immediate dismissal for failing
to state a claim for relief under Fed. R. Civ. P. 12(b)(6). Should he fail to
satisfactorily comply with this directive, he will face a recommendation
of dismissal.
Meanwhile, this Court has a duty to protect itself from frivolous
litigation, which is one of the reasons why Fed. R. Civ. P. 11(c)(3) grants
courts authority to sua sponte impose sanctions. 3 In amending his
Another option is to extend to non-prisoner IFP movants like Burns a pay-to-pay,
installment payment plan analogous to what Congress imposed upon prisoners under
its Prison Litigation Reform Act (PLRA), which is expressed in statutory-provisions
like 28 U.S.C. § 1915(a)(1), (b)(l)(2). Kareem v. Home Source Rental , ___ F. Supp. 2d
___, 2013 WL 6407484 at *2 n. 4 (S.D. Ga. Dec. 9, 2013). Yet another is to impose a
$100 filing bond. Robbins v. Universal Music Group , 2013 WL 1146865 at * 2 (S.D.
Ga. Mar. 19, 2013) (“The Court's imposition of a filing bond is an appropriate
mechanism for reining in an IFP litigant who overburdens the Court with an
unending stream of frivolous litigation.”); Robbins v. Universal Motown , 2011 WL
2559639 at * 2 (S.D. Ga. Jun 27, 2011) (“for the next six months Robbins should be
barred from filing any more lawsuits until he first posts a $100 frivolity bond, from
which the Court will subtract $100 for the next frivolous lawsuit that he files. And if
that does not work, then stronger remedies may be required. See Chapman v.
complaint, Burns must not advance frivolous litigation before this Court.
Finally, all factual assertions must be made under oath (by way of
affidavit or 28 U.S.C. § 1746 declaration), and Burns is reminded that
this Court does not tolerate perjury in any form. Colony Ins. Co. v. 9400
Abercorn, LLC , 866 F. Supp. 2d 1376, 1378 n. 2 (S.D. Ga. 2012).
SO ORDERED this 8th day of April, 2014.
-
UNITED STATES MAGISTRATE ILJDGE
SOUTI-IERI'T DISTRICT OF GEORGIA
Executive Committee of U.S. Dist. Court for N. Dist. of Illinois , 324 F. App'x 500, 502
(7th Cir. 2009) (court executive committee's order directing destruction of any papers
submitted either directly or indirectly by or on behalf of vexatious pro se litigant was
not an abuse of discretion; order was not an absolute bar since it contained a
provision under which the restriction might be lifted, and filing bar was also
narrowly tailored to litigant's abuse of the courts)”); Bigglest v. Mayor and Alderman
of City of Savannah , 2012 WL 5200107, at * 2 (S.D. Ga. Oct. 22, 2012). The Court
will not hesitate to impose either or both of these sanctions if it turns out that this
latest case is just another frivolous lawsuit.
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