Braziel v. United States Attorney's Office et al

Filing 21

MEMORANDUM ORDER. Signed by the Honorable Milton I. Shadur on 9/28/2015. Mailed notice (tt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FLORA BRAZIEL,
Plaintiff,
v.
UNITED STATES ATTORNEY'S OFFICE,
JOSEPH A. STEWART, AUSA,
Defendants.

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Case No: 15 C 5534

MEMORANDUM ORDER
It is only in baseball that a hitter can hit foul ball after foul ball and still stay at the plate
(an ability, to go back some three generations, that Hall of Famer Luke Appling of the Chicago
White Sox developed into an art). Pro se plaintiff Flora Braziel ("Braziel") has not learned that
rule does not work in the judicial ballpark -- as the attached motion by the United States
Attorney's Office reflects, this action is her fifth foul ball, and a ruling that she has struck out
swinging is long overdue.
That said, it is somewhat surprising that the United States' Motion To Transfer or To
Dismiss resulted in the Executive Committee reassigning the case to this Court's calendar
(although LR 40.3(b)(2) certainly applies to the situation) rather than its ordering the outright
dismissal that the motion proposed as an alternative. Like its colleagues who have previously
dismissed the second, third and fourth like actions by Braziel on claim preclusion grounds, this
Court does the same -- but to continue with another seasonal metaphor, this Court converts the

hallowed "Tinker to Evers to Chance" double play combination to "Chance to Evers to Chance" 1
by recommending to the Executive Committee that Braziel be added to its restricted filer list of
litigants.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: September 28, 2015

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After all, if the Sox are entitled to a metaphor, the Cubs certainly are this year as well,
so this opinion converts the more prosaic "short-to-second-to-first" and "first-to-second-to-first"
usages employed by baseball announcers to the versions in the text.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FLORA BRAZIEL,

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Plaintiff,
v.
UNITED STATES ATTORNEY’S
OFFICE, et al.,
Defendants.

No. 15 C 5534
Judge Kennelly

UNITED STATES’ MOTION TO TRANSFER OR TO DISMISS
The United States Attorney’s Office, by Zachary T. Fardon, United States Attorney for the
Northern District of Illinois, moves to refer this case to the Executive Committee for reassignment
to Judge Shadur pursuant to Local Rule 40.3(b)(2) (or simply to dismiss), and in support states as
follows:
1.

This is the fifth substantively similar or identical civil case that plaintiff Flora

Braziel has filed complaining about efforts by the U.S. Attorney’s office to collect restitution that
she owes (and that she similarly challenged in her criminal case) through the Treasury Offset
Program (“TOP”). The first four civil cases were dismissed for failure to state a claim, and
Braziel’s four previous motions to proceed in forma pauperis were denied. The five complaints
(without exhibits) are attached along with the four previous dismissal orders as follows:
Tab

Case No.

Dismissal Date

Judge

A

13 C 773

April 2, 2013

Shadur

B

14 C 4944

November 4, 2014

Ellis

C

14 C 10417

January 29, 2015

Ellis

D

15 C 3223

May 5, 2015

Gottschall

E

15 C 5534

N/A

Kennelly

ATTACHMENT

2.

When Judge Shadur dismissed the first incarnation of this case, No. 13 C 778, in

April 2013 and denied Braziel’s in forma pauperis application, he noted that “the negative
conclusion that has been stated here on the merits would be no different if this litigation were to
become fee-paid.” Tab A. When Judge Ellis dismissed the second incarnation of this case, No.
14 C 4944, in November 2014, she explained:
Plaintiff previously filed the same allegations which were dismissed
in 13−cv−778. The proper route to challenge that dismissal was to
file an appeal with the Seventh Circuit. Plaintiff did so and then
voluntarily dismissed her appeal. Plaintiff cannot challenge the
dismissal of her complaint in 13−cv−778 by filing another action
before this Court.
Tab B. When Judge Ellis dismissed the third version of this case, No. 14 C 10417, in January of
this year, she not surprisingly said the very same thing she said when she dismissed the second
version. Tab C. When Judge Gottschall dismissed the fourth version of this case, No. 15 3223,
in May of this year, she also invoked the res judicata doctrine, finding that it “bars Ms. Braziel
from relitigating her previously decided claims. See Palka v. City of Chicago, 662 F.3d 428, 437
(7th Cir. 2011).” Tab D.
3. Local Rule 40.3(b)(2) provides that “[w]hen a case is dismissed with prejudice or
without, and a second case is filed involving the same parties and relating to the same subject
matter, the second case shall be assigned to the judge to whom the first case was assigned.”
Pursuant to the applicable local rules, this case — if it is not dismissed outright — should be
reassigned to Judge Shadur, as it involves the same parties and relates to the same subject matter
as that original case (not to mention the three cases previous to this one).
WHEREFORE, the United States moves for referral of this case to the Executive
Committee for reassignment to Judge Shadur pursuant to Local Rule 40.3(b)(2) or for its outright

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dismissal on res judicata grounds. See Homola v. McNamara, 59 F.3d 647, 651 (7th Cir. 1995)
(noting that “the judicial system cannot tolerate litigants who refuse to accept adverse decisions.”).
Respectfully submitted,
ZACHARY T. FARDON
United States Attorney
By: s/ Thomas P. Walsh
THOMAS P. WALSH
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604
[phone]
[e-mail]

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