Puckett v. Wieland
MEMORANDUM AND ORDER denying 4 Motion for TRO. Signed by Chief Judge J. Thomas Marten on 4/13/2017.Mailed to pro se party Casey Puckett by regular mail. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-1072-JTM
MEMORANDUM AND ORDER
Plaintiff Casey Puckett, appearing pro se and stressing his status as a “Private USA
Citizen,” brings the present action against United States Bankruptcy Trustee Richard
Wieland, generally seeking to avoid enforcement of 11 U.S.C. § 110, which places
restrictions on nonattorney bankruptcy petition preparers. In particular, Puckett complains
that the Trustee has invoked Section 110 to limit the fees he charges his customers, as well
as the requirement under Subsection 110(c) that he supply his social security number (SSN)
as part of the petition process. As a part of his Complaint, Puckett asks for a temporary
restraining order against the Trustee to enjoin the enforcement of Section 110.
A temporary restraining order “is an extraordinary and drastic remedy” that should
not be granted unless the movant carries its burden of persuasion by a clear showing. West
v. Derby Unified Sch. Dist. No. 260, 23 F.Supp.2d 1220, 1222 (D.Kan.1998). To obtain a
temporary restraining order, a movant must show (1) it will suffer irreparable injury unless
the motion is granted; (2) the threatened injury outweighs whatever damage the proposed
injunction may cause the opposing parties; (3) the injunction, if issued, would not be
adverse to the public interest; and (4) a substantial likelihood that it will prevail on the
merits. Winnebago Tribe of Neb. v. Stovall, 205 F.Supp.2d 1217, 1221 (D.Kan.2002) (citing
Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1171 (10th Cir.1998)), aff ‘d 341 F.3d 1202
Puckett’s complaint falls far short of this mark. Enacted as a part of the Bankruptcy
Reform Act of 1994, Section 110 “was enacted to ‘address the growing problem of
bankruptcy preparers who abuse the system’ and ‘is intended to police fraud and abuse
by such preparers.’” S.Rep. No. 168, 103d Cong., 1st Sess. 51 (1993). In the view of
Congress, Section 110 was “critically needed to confront the large scale fraudulent conduct
of [bankruptcy petition preparers] who prey on the poor and unsophisticated.” 140
Cong.Rec. § 14, 597–98 (daily ed. October 7, 1994). Courts have consistently rejected
challenges to the validity of Section 110. See, e.g., In re Evans, 413 B.R. 315, 322-23 (Bankr.
E.D. Va. Aug. 23, 2009) (“there is no fundamental right under the equal protection clause
of the Fifth Amendment to pursue a calling as a bankruptcy petition preparer”); In re
Rausch, 197 B.R. 109, 116 (Bankr. D. Nev. 1996) (finding “[t]he need for public access to a
document preparer's SSN is compelling, given the serious nature of the conduct to be
prevented and the widespread corruption associated with document preparers”).
Puckett has presented similar arguments before. In an earlier action against the
Trustee and against one of the Bankruptcy Judges of the District of Kansas, Puckett
advanced similar arguments — that Section 110 violates due process and amounts to price
fixing. However, Puckett voluntarily dismissed his action shortly after the Magistrate Judge
assigned to the case approved Puckett’s request to proceed in forma pauperis, but otherwise
found no merit to his claims:
With these standards in mind, the Court finds that Plaintiff has failed to state
a claim upon which relief may be granted. Plaintiff’s rambling Complaint
vaguely alleges violations of 42 U.S.C. Section § 1983, state and federal
antitrust laws, the “1890 Sherman Act,” and “our right to procedural due
process under the Fourth, Fifth and Fourteenth Amendments . . . .” Plaintiff
contends these violations result from alleged “price fixing” by the named
federal government Defendants relating to the document “typing service”
Plaintiff provides for pro se individuals. (Id.) These allegations do not, on
their face, state a valid claim for relief under federal law.
It is not possible to discern a legally-cognizable cause of action from
Plaintiff’s Complaint. He appears to complain about two matters. He
challenges the United States Bankruptcy Court’s action, apparently taken
upon motion from the Untied States Trustee (Doc. 1-7), reducing his
document preparation fee charged to Debtors in a Bankruptcy case. Such a
challenge should have been made by proper appeal of that Court’s order,
and is not actionable as a separate action. The other matter seems to be
related to a pending state court proceeding in which the Kansas Attorney
General is seeking a restraining order against the Plaintiff (Doc. 1-1.) Plaintiff
has stated no action which would support this Court’s interference with the
case pending in the state court. As such, Plaintiff has not stated a claim upon
which relief may be granted and this Court RECOMMENDS that his case be
Puckett v. Somers, No. 15-1030-JTM (D. Kan. Jan. 30, 2015) (Dkt. 8, at 8-9).
Puckett’s claims have found no additional validity in the interim, and the court finds
no basis for differing from the Magistrate Judge’s recommendation in 2015.
IT IS ACCORDINGLY ORDERED this 13th day of April, 2017, that the plaintiff’s
Motion for Temporary Restraining Order (Dkt. 4) is hereby denied.
___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE
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