WITHERSPOON v. HBO
OPINION AND ORDER that Plaintiffs IFP privileges are hereby revoked for all future and pending cases in the District of New Jersey. If Plaintiff wishes to proceed with any complaint which is now pending in this Court, he must pay the full applicable filing and docketing fees within fourteen (14) days of the date of this order. Failure to pay the fees within that time will result in dismissal of each complaint without further notice. If Plaintiff does not pay the fees within the time allotted, th e Clerk of the District Court is directed to close this and all of Plaintiffs pending matters in the District on March 25, 2015, without any further order from this Court. No extension of time to pay the fees will be granted. No motion to reopen a ca se will be docketed unless Plaintiff has paid the filing and docketing fees. Plaintiff may seek to have this order modified or vacated no sooner than October 1, 2015. In any such motion Plaintiff must show that he has a non-frivolous basis for doing so. Plaintiff may file only one motion to modify or vacate this order in any one year period. The Clerk will not docket more than one motion in a one-year period; etc. Signed by Judge Stanley R. Chesler on 3/10/15. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-1140 (SRC)
OPINION AND ORDER
TO ALSO BE FILED IN:
CHESLER, District Judge
This matter comes before the Court upon the application of pro se Plaintiff Desmond
Witherspoon to file a Complaint without paying fees under 28 U.S.C. ' 1915. On February 23,
2015, the Court ordered Plaintiff to show cause as to why his in forma pauperis (“IFP”)
privileges should not be revoked. For the reasons that follow, the Court finds that Plaintiff has
not made such a demonstration, and the Court will accordingly revoke Plaintiff’s IFP privileges.
From August of 2014 through the present date, Plaintiff has filed over 200 complaints in
the District of New Jersey, all without the prepayment of fees pursuant to 28 U.S.C. § 1915.
The complaints are each approximately one page in length, and each contains a one-sentence
cause of action without relaying factual information. See, e.g., Civ. Action No. 14-7365
(pleading “soliciting sex: sexual abuse” against an individual and demanding a “sex contract” as
relief). Plaintiff has sued a large number of corporate defendants, among them the YMCA,
Burberry, and Hot 97. See, e.g., Civ. Action Nos. 14-7943, 15-0126, and 15-0588.
Additionally, Plaintiff has filed suit against individuals who are also named Desmond
Witherspoon, or some variation thereof. See Civ. Action Nos. 14-5642, 14-6296, 14-6314, and
15-0221. In many filings, Plaintiff has requested relief which further suggests that the
allegations are frivolous. See, e.g., Civ. Action No. 14-7948 (demanding “lifetime supply of
McDonalds”); Civ. Action No. 15-0706 (demanding a “boxing contestant”). Plaintiff has also
improperly filed various complaints on behalf of corporate entities. See, e.g., Civ. Action Nos.
15-0491, 15-0494, and 15-0832. For these reasons and for those outlined in each case, the
Court has dismissed every complaint that it has reviewed as either frivolous or legally
insufficient. 28 U.S.C. § 1915(e)(2).
In light of the volume and content of Plaintiff’s filings, on October 21, 2014, the Court
issued an order warning Plaintiff that he could be sanctioned if his conduct continued:
Plaintiff has filed a multitude of one-sentence lawsuits in this Court,
without the [prepayment] of fees. These efforts cumulatively abuse
the in forma pauperis procedures set forth under 28 U.S.C. § 1915,
and together they waste the Court’s resources. The Court advises
Plaintiff that pro se litigants are subject to Federal Rule of Civil
Procedure 11, which prohibits the filing of frivolous or
unsubstantiated claims. It further provides that the Court may
sanction parties who violate these restrictions.
[Civ. Action No. 14-6296].
Despite this warning, Plaintiff’s submissions continued unabated. On February 18, 2015, in the
instant matter, the Court directed Plaintiff to show cause in writing as to why he should not be
enjoined from submitting new filings without first obtaining the Court’s permission.
Shortly thereafter, on February 20, 2015, the United States Court of Appeals for the Third
Circuit issued an Order, In re: Desmond Witherspoon, C.A. No. 15-8012, which revoked
Plaintiff’s IFP privileges for appellate filings. The Court of Appeals determined that Plaintiff
had abused the IFP process in light of the “number, content, and frequency” of his appellate
submissions. Significantly, the Court also authorized District Courts to take similar action:
“Should the District Courts in this Circuit find after notice and opportunity to respond that Mr.
Witherspoon has shown a similar pattern of abuse in district court filings, they are authorized to
enter a similar order.” Id.
Accordingly, on February 23, 2015, this Court vacated its initial order to show cause and
issued a superseding Order. In it, the Court expressed “concern that Plaintiff is indeed abusing
his IFP privileges in District Court” in light of the fact that he “he has filed over two-hundred
Complaints which have been dismissed as either frivolous or otherwise improper.” (Docket
Entry 3). The Court directed Plaintiff to show cause by March 10, 2015, in writing, as to “why
the Court should not revoke Plaintiff’s IFP privileges with respect to all pending and future
filings in the United States District Court for the District of New Jersey.” (Id.).
The Court received a response from Plaintiff on February 2, 2015. It reads:
My privilege should not be suspended because this is my right.
There is also no other option or anything else that could be done. If
the court would see fit to [continually] file new cases on my behalf
it would be a greatly appreciated gesture.
[Docket Entry 4].
Having considered Plaintiff’s submission, the Court finds that this response fails to demonstrate
why Plaintiff’s IFP privileges should not be revoked.
Having considered both the mountainous volume and the frivolousness of Plaintiff’s IFP
submissions, the Court agrees with the Third Circuit’s finding that Plaintiff has engaged in an
“especially abusive” use of IFP privileges. The Court opts to exercise its authority to curb this
abuse. See In re: Desmond Witherspoon, C.A. No. 15-8012; see also Abdul-Akbar v. Watson,
901 F.2d 329, 333 (3d Cir. 1990) (“When a district court is confronted with a pattern of conduct
from which it can only conclude that a litigant is intentionally abusing the judicial process and
will continue to do so unless restrained, we believe it is entitled to resort to its power of
injunction and contempt to protect its process.”). Therefore,
IT IS on this 10th day of March, 2015,
ORDERED that Plaintiff’s IFP privileges are hereby revoked for all future and pending
cases in the District of New Jersey. If Plaintiff wishes to proceed with any complaint which is
now pending in this Court, he must pay the full applicable filing and docketing fees within
fourteen (14) days of the date of this order. Failure to pay the fees within that time will result in
dismissal of each complaint without further notice. If Plaintiff does not pay the fees within the
time allotted, the Clerk of the District Court is directed to close this and all of Plaintiff’s pending
matters in the District on March 25, 2015, without any further order from this Court. No
extension of time to pay the fees will be granted. No motion to reopen a case will be docketed
unless Plaintiff has paid the filing and docketing fees; and it is further
ORDERED that the Clerk of the District Court shall not file a complaint submitted in a
civil action filed by Plaintiff unless and until the filing and docketing fees have been paid in full;
and it is further
ORDERED that this Order covers all cases in which Plaintiff signs the complaint. No
cases may be opened in which Plaintiff names a corporation as the suing party unless the
corporation is represented by an attorney admitted to the bar of this court and the full filing and
docketing fees are paid; and it is further
ORDERED that any of Plaintiff’s filings in criminal cases or habeas corpus cases are
exempt from this order. A habeas corpus petition may be filed if Plaintiff files an accurate IFP
affidavit and attaches a copy of the judgment and commitment order or other commitment order
he is seeking to attack; and it is further
ORDERED that Plaintiff may seek to have this order modified or vacated no sooner than
October 1, 2015. In any such motion Plaintiff must show that he has a non-frivolous basis for
doing so. Plaintiff may file only one motion to modify or vacate this order in any one year
period. The Clerk will not docket more than one motion in a one-year period.
s/Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: March 10, 2015
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