Malone v. Safety & Corrections et al

Filing 14

MEMORANDUM RULING re 11 MOTION to Reopen/Reinstate Case filed by Cary Ellis Malone in 3:17-cv-01064-TAD-KLH, 12 MOTION to Reopen/Reinstate Case filed by Cary Ellis Malone in 3:17-cv-00568-TAD-KLH, 9 MOTION to Reopen/Reinstate Case filed by Cary Ellis Malone in 3:18-cv-00935-TAD-KLH, and 11 MOTION to Reopen/Reinstate Case filed by Cary Ellis Malone in 3:17-cv-01025-TAD-KLH. Signed by Judge Terry A Doughty on 8/22/2018. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

CARY ELLIS MALONE

CIVIL ACTION NOS. 3:17-CV-568
3:17-CV-1025
3:17-CV-1064
3:18-CV-935

VERSUS

JUDGE TERRY A. DOUGHTY

JAY RUSSELL, ET AL.

MAG. JUDGE KAREN L. HAYES

RULING
Pending before the Court is the Motion to Re-open and Reconsider Sua Sponte [Doc. No.
9 in Case No. 3:18-CV-935] which has been filed by Plaintiff Cary Ellis Malone (“Malone”) in
each of the above numbered actions.1
Malone’s allegations in each of these actions are essentially the same. On April 24, 2017,
in Case No. 3:17-CV-568, Malone filed suit against the Louisiana Department of Safety and
Corrections and Debra Bradford, asserting that the Monroe Division of Probation and Parole
revoked his probation in a hearing on March 11, 2015, in the Fourth Judicial District Court for
Ouachita Parish, Louisiana without legal and just cause, and put him in a fee collection program
and removed $2,000 from his tax refund without legal authorization. Judgment was rendered on
July 6, 2017, dismissing Malone’s complaint with prejudice.
On August 11, 2017, in Case No. 3:17-CV-1025, Malone filed suit against the Louisiana
Department of Probation & Parole, Debra Bradford, and Holly Chambers Jones, asserting that
the March 11, 2015 hearing and the actions of the defendants violated his constitutional rights.

1 Doc. No. 12 in 3:17-CV-568; Doc. No. 11 in 3:17-CV-1025; Doc. No. 11 in 3:17-CV-1064.

Judgment was rendered on September 15, 2017, dismissing Malone’s complaint with prejudice
as frivolous and for failing to state a claim on which relief may be granted.
On August 22, 2017, in Case No. 3:17-CV-1064, Malone filed suit against the Monroe
Louisiana Division of Probation & Parole, Sheriff Jay Russell, Pat Johnson, Scott Smith, Holly
Chambers Jones, and “Unknown Officers.” Malone’s complaint chronicled his time spent in
custody, beginning with his 2008 arrest for Distribution of CDS II Cocaine and Conspiracy to
Distribute CDS II Cocaine and ending with the completion of his incarceration at the Ouachita
Parish Sheriff’s Office Transitional Work Program in August 2015. He alleged discrepancies in a
2013 guilty plea as well as with a later probation revocation hearing. He contended that pursuant
to his guilty plea of Possession of CDS II on March 25, 2015, material evidence favorable to him
was suppressed and the plea was forced. He contended that Assistant District Attorney Holly
Chambers Jones knowingly and willfully presented misleading information to the Court. He
also claimed that he was kept in custody without just and probable cause. These claims arose
from the same series of events and allege many of the same facts that were alleged in the earlier
suits. Judgment was rendered on December 19, 2017, dismissing Malone’s claims with
prejudice as malicious.
On July 16, 2018, in Case No. 3:18-CV-935, Malone filed suit against Sheriff Jay
Russell, Pat Johnson, and Scott Smith, alleging that his probation was revoked without due
process and making allegations substantially similar to, and arising from the same series of
events as, allegations he had raised in the prior proceedings. Judgment was rendered on August
20, 2018, dismissing Malone’s claims with prejudice as frivolous and malicious, and ordering, as
a sanction, that Malone be prohibited from filing any new civil action in this District without the
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prior approval and authorization of the Chief Judge of this District.
On August 21, 2018, Malone filed the pending Motion to Re-open and Reconsider Sua
Sponte in all of the above numbered proceedings, under Federal Rule of Civil Procedure Rule
60(b), alleging the discovery of new evidence and attaching transcripts of proceedings held
before Fourth Judicial District Court Judge Larry Jefferson on February 23 and 26, 2018.
Under Rule 60(b), the Court Amay relieve a party or its legal representative from a final
judgment, order, or proceeding@ for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.
FED. R. CIV. P. 60(b).
The Court finds that Malone has failed to satisfy his burden under Rule 60.

Although

Malone claims in his motions that Judge Jefferson’s ruling on February 26, 2018, confirms that
Judge Jefferson did not enter a judgment revoking his probation and giving Defendants authority
to incarcerate him on March 11, 2015, the transcripts he attaches to his complaint directly
contradict that claim:
BY THE COURT:
Well, however, this motion that he has filed here, July 17, 2017,
to set aside plea and sentence nunc pro tunc does bring up the
issue of the probation proceedings. Even though he claims that
the court never ordered probation revoked, the court did order
the probation revoked, even though he’s claiming it didn’t.

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[Transcript of proceedings on the 26th day of February, 2018, before Judge Larry Jefferson, Doc.
No. 9-1, p. 34 in Case No. 3:18-CV-935]
Therefore, even if the Court were to consider the “newly discovered evidence” offered by
Malone, it has no bearing on the claims against any of the named defendants in any of these
proceedings.
Accordingly, Malone’s Motion to Re-Open and Reconsider Sua Sponte [Doc. No. 9 in
Case No. 3:18-CV-935, see other Doc. Nos. in Footnote 1] is DENIED. Furthermore, given
Malone’s abuse of process the Court clarifies that Malone is SANCTIONED and prohibited
from filing any new civil action in this District and also prohibited from making any additional
filings in any closed cases in this District, without the prior approval and authorization of the
Chief Judge of this District.
MONROE, LOUISIANA, this 22nd day of August, 2018.

____________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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