Konrath v. Superintendent

Filing 2

ORDER DISMISSING CASE for want of jurisdiction. Signed by Judge Rudy Lozano on 1/4/17. (cc: Konrath)(ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GREGORY KONRATH,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:16-CV-879 RL

OPINION AND ORDER
Gregory Konrath, a pro se prisoner, filed a habeas corpus
petition challenging WCC 16-11-452, a

prison disciplinary

hearing held at the Westville Correctional Facility where a
hearing officer found him guilty of an Abuse of Telephone offense
in violation of B-361. In Konrath v. Superintendent, 3:16-CV-839
(N.D. Ind. filed Dec. 8, 2016), Konrath challenged the same
prison disciplinary hearing that he is challenging in this
petition. That habeas corpus petition was dismissed on December
12, 2016. He signed this habeas corpus petition on December 10,
2016.
This court lacks jurisdiction to hear an unauthorized
successive habeas corpus petition. Burton v. Stewart, 549 U.S.
147, 157 (2007). Regardless of whether the claims that Konrath is
now attempting to present are new or whether they were presented
in his previous petition, this petition must be dismissed. “A
claim presented in a second or successive habeas corpus
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application under section 2254 that was presented in a prior
application shall be dismissed.” 28 U.S.C. § 2244(b)(1).
Therefore any claims previously presented must be dismissed.
Additionally, for any claim not previously presented,
Before a second or successive application permitted by
this section is filed in the district court, the
applicant shall move in the appropriate court of
appeals for an order authorizing the district court to
consider the application.
28 U.S.C. § 2244(b)(3). Here, Konrath has not obtained an order
from the court of appeals permitting him to proceed with any
previously unpresented claims. “A district court must dismiss a
second or successive petition . . . unless the court of appeals
has given approval for its filing.” Nunez v. United States, 96
F.3d 990, 991 (7th Cir. 1996) (emphasis in original). Therefore
any previously unpresented claims must also be dismissed.
Finally, it must be noted that Konrath signed this habeas
petition just days after he signed the one in Case No. 3:16-cv839. In the past few months, Konrath has proven to be a busy
litigator who has filed 52 civil rights cases and 7 habeas cases
in this district. Based on his prior filings in this court, he
knows that it is malicious to re-file duplicative cases. The
court informed him of that on October 25, 2016. See e.g., Konrath
v. Hughes, Case No. 3:16-CV-712 (N.D. Ind. filed Oct. 17, 2016.)
Though he will not be sanctioned at this time, he is cautioned
that if he persists in abusing the judicial process, he may be

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fined, sanctioned, or restricted from filing cases, even habeas
corpus cases. See Montgomery v. Davis, 362 F.3d 956, 958 (7th
Cir. 2004).
For the forgoing reasons, this malicious case is DISMISSED
for want of jurisdiction.
DATED: January 4, 2017

/s/RUDY LOZANO, Judge
United States District Court

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