Holland et al v. The City of Gary et al

Filing 145

ORDER ADOPTING 141 REPORT AND RECOMMENDATIONS re 133 Plaintiff's Notice to the Court of the Inability to Pay Sanctions filed by Robert Holland; OVERRULING 143 OBJECTION to the Report and Recommendations of U.S. Magistrate Judge. Plaintiff has the ability to pay the $500.00 sanction entered against him. Signed by Judge Rudy Lozano on 10/19/16. (cc: Robert Holland). (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT HOLLAND and
THE LAW FIRM OF ROBERT HOLLAND,
Plaintiffs,
vs.
CITY OF GARY, et al.,
Defendants.

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NO. 2:15-CV-207

ORDER
This matter is before the Court on the Report and Recommendation
of Magistrate Judge John E. Martin (DE #141) dated August 30, 2016,
and the Objection to the Report and Recommendation of U.S. Magistrate
Judge Martin (DE #143), filed by Robert Holland (“Holland”) on
September 20, 2016.

For the reasons set forth below, the objection

is OVERRULED and the report and recommendation is ADOPTED.

BACKGROUND
On June 29, 2016, this Court sanctioned Holland in the amount of
$500.

(DE #129).

Holland objected to the imposition of sanctions

and also notified the Court that he was unable to pay the sanctions.
(DE ## 132, 133). This Court overruled the objection and referred the
notice of inability to pay to Magistrate Judge John E. Martin for
report and recommendation. (DE ## 134, 135).

Holland then filed a

motion to reconsider the Court’s ruling on his objection to the
sanctions. (DE #136). That too was denied by this Court. (DE # 139).
Magistrate Judge Martin conducted a hearing to explore Holland’s
ability to pay sanctions. At that hearing, Holland testified that his
only income is Social Security Disability in the amount of $1,021 per
month. Holland has looked for work, but he claims that back issues
limit his options.

He does not currently own any real property, but

he believes that three properties were unlawfully taken from him.

He

still lives at one of those properties, and does not currently pay
rent, a mortgage, or property taxes.
month for utilities.

He does pay roughly $200 per

And, he owns the furnishing in the home.

does not own a vehicle.

He

On the date of the hearing, he had $20 in

cash and a total of $20.01 in two different checking accounts.
Holland also testified that he is a plaintiff in at least six
different cases, five of which are related and three of which are on
appeal.

As a result of the appeals, he needed to pay $1,515 in court

fees over the next sixty days.

In addition, he will have significant

expenses related to preparing documents for those appeals.
Following the hearing, Magistrate Judge Martin recommended that
this Court find that Holland has the ability to pay the $500 in
sanctions.

The report and recommendation provides in part that:
After reviewing Plaintiff’s testimony, the Court
finds that he is not unable to pay the sanctions
as ordered. Plaintiff was specifically warned by
Judge Lozano, in capital letters, that the Court
would impose “Sanctions of $500 per filing” for
frivolous challenges to the Court’s order of
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dismissal. Plaintiff did not heed this warning
and was sanctioned accordingly. While the Court
acknowledges that $500 is approximately half of
Plaintiff’s stated monthly income, the Court also
notes that Plaintiff has paid hundreds if not
thousands of dollars in filing fees to maintain
several causes of action in this Court and in
state court.
This ability to pay significant
filing fees and hundreds of dollars in printing
costs refutes rather than supports Plaintiff’s
claim that he cannot pay the instant sanction.
(DE #141 at 3).

On September 20, 2016, Holland filed the instant

timely objection to the report and recommendation.1

Defendants have

not filed a response. Accordingly, both the report and recommendation
and Holland’s objection are ripe for adjudication.

DISCUSSION
When

a

party

makes

objections

to

a

magistrate

judge’s

recommendations, “[t]he district court is required to conduct a de
novo determination of those portions of the magistrate judge’s report
and recommendations to which objections have been filed.”

Goffman v.

Gross, 59 F.3d 668, 671 (7th Cir. 1995).

“[T]he court may accept,

reject,

part,

or

modify,

in

whole

or

in

the

findings

or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1);
see also Fed. R. Civ. P. 72(b).
Holland’s objection sets forth the procedural history of the
sanctions at issue and some of the facts presented at the hearing held

1

The report and recommendation was sent to Holland via certified mail,
and the return receipt indicates he received the report and recommendation on
September 6, 2016.

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before Magistrate Judge Martin.

Holland then concludes that “[t]he

recommendation defies logic and the evidence presented under the
circumstances.” (DE #143 at 3). Holland has not taken issue with any
of

the

facts

presented

in

the

report

and

recommendation,

just

Magistrate Judge Martin’s conclusion.
The remainder of the objection presents yet another challenge to
this Court’s decision to impose the sanctions in the first place,
claiming the sanctions were without legal justification.

This Court

has considered Holland’s argument that the sanctions were unfounded
on two prior occasions:

Holland objected to the imposition of

sanctions and this Court overruled the objection (DE ## 132, 134).
Holland then filed a motion to reconsider the Court’s ruling on his
objection and that too was denied by this Court.

(DE ## 136, 139).

This Court will not now entertain Holland’s third attempt to challenge
the validity of the initial decision to impose sanctions.2
As for Holland’s argument directed to Magistrate Judge Martin’s
recommendation that this Court find he has the ability to pay the
sanctions imposed, Holland has offered little to support his position.
Holland’s income is minimal, but his living expenses are also minimal.
To the extent a move is in Holland’s near future, little is known
about his future living expenses.

Holland claims that his expenses

are high, but he is referring to expenses related to his prolific

2

The Court notes, however, that it is exactly this kind of behavior repeatedly making the same arguments - that led to the sanctions at issue
here.

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litigation, not living expenses.
On October 4, 2016, Holland was able to pay a $505 fee for an
appeal from a decision by this Court in Holland v. Feinberg, 2:13-CV491.

In that case, Holland is appealing an order by this Court that

notes the following:
In this instant motion, Holland continues to set
forth the same legal arguments that have been
rejected by this Court again and again, and
affirmed by the Seventh Circuit. To raise and
re-raise arguments that have been rejected by the
Court is an abuse of the judicial process
warranting sanctions. This civil case has long
since been closed and this Court will not
consider any additional challenges to this
Court’s order dismissing the case.
See Id. at DE #152, pg. 2.

Holland sought to proceed IFP in that

case, but this Court found that the appeal was not taken in good
faith.

Holland nonetheless decided to proceed at his own expense.

This is not an isolated incident of Holland choosing to pay to pursue
appeals that are lacking in good faith.

Holland has filed fifteen

separate appeals since 2009, including four appeals in 2016.

Many of

these cases were cases where IFP was denied by the district court
because the appeal was deemed lacking in good faith and IFP was also
denied by the Seventh Circuit Court of Appeals.
It appears that Holland simply cannot take no for an answer.
This has been a recurring theme in his numerous cases before this
Court.

While persistence is admirable in some circumstances, in a

court of law, there comes a point where persistence becomes an abuse
of the judicial process.

Holland has long since passed that point.
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If Holland chooses to spend his limited income pursuing appeals
in bad faith, he is entitled to do that (although he may ultimately
face additional sanctions).

However, expenses resulting from that

choice do not render him unable to pay the sanctions in this case.
Magistrate Judge Martin correctly considered Holland’s ability
to pay significant court fees and associated costs in recommending
that this Court find Holland has the ability to pay the instant
sanctions.

Magistrate Judge Martin’s recommendation is not, as

Holland suggests, “clearly without logic.”

A de novo review supports

a finding that Holland has the ability to pay the sanctions ordered
by this Court.
This Court’s sanction order did not include a due date.

There

is no demand that Holland come up with $500 today, tomorrow, or even
next month.

He may make payments over time as he is able, but the

sanctions must be paid.

CONCLUSION
For the reasons set forth above, the Objection to the Report and
Recommendation of U.S. Magistrate Judge Martin (DE #143) is OVERRULED
and the Report and Recommendation of Magistrate Judge John E. Martin
(DE #141) is ADOPTED.

DATED: October 19, 2016

/s/RUDY LOZANO, Judge
United States District Court

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