HAIZLIP v. ALSTON et al
Filing
47
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 12/11/2015. RECOMMENDED that Plaintiff's letter motion (Docket Entry 44 ) be denied. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DWAYNE DUMONT HAIZLIP,
Plaintiff,
v.
RICK ALSTON, et al.,
Defendants.
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1:14CV770
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff brought this action under 42 U.S.C. § 1983 (Docket
Entry 2) and the Court allowed it to proceed as to his excessive
force claim against three police officers employed by the City of
Greensboro (Docket Entry 8).
Plaintiff now has submitted a letter
motion “requesting that [the Court] put an order in directing the
staff members administration at [the prison] facility where [he is]
being housed to photocopy legal documents pertaining only to th[is]
case . . . .”
omitted).)
(Docket Entry 44 at 1 (internal quotation marks
Given the non-party status of the officials Plaintiff
would have so enjoined, the Court should deny his instant request.1
1
Because Plaintiff “seeks injunctive relief directing
officials to provide him with . . . free photocopying services,”
Hairston v. McPeak, No. 7:12CV416, 2012 WL 5285752, at *1 (W.D. Va.
Oct. 23, 2012) (emphasis added), the undersigned United States
Magistrate Judge has entered a recommendation (rather than an
order), see 28 U.S.C. § 636(b)(1)(A) (excepting “motion[s] for
injunctive relief” from “pretrial matters” which magistrate judges
may “determine”) & (B) (authorizing magistrate judges “to submit to
a [district] judge . . . recommendations for the disposition . . .
of any motion excepted in subparagraph (A)”).
As the United States Supreme Court long ago explained:
It is a principle of general application in AngloAmerican jurisprudence that one is not bound by a
judgment in personam in a litigation in which he is not
designated as a party or to which he has not been made a
party by service of process. A judgment rendered in such
circumstances is not entitled to the full faith and
credit which the Constitution and statute of the United
States prescribe and judicial action enforcing it against
the person or property of the absent party is not that
due process which the Fifth and Fourteenth Amendments
requires.
Hansberry v. Lee, 311 U.S. 32, 40 (1940) (citations omitted).
In
other words, “[i]n general, a court may not enter orders against
nonparties.”
Kenseth v. Dean Health Plan, Inc., 722 F.3d 869, 890
n.7 (7th Cir. 2013); see also Steans v. Combined Ins. Co. of Am.,
148 F.3d 1266, 1270 (11th Cir. 1998) (recognizing “principle of
general application that a judgment in personam is not binding on
a person who is not designated as a party” (internal quotation
marks omitted)); Elliott v. Kiesewetter, 98 F.3d 47, 56 n.5 (3d
Cir. 1996) (“A non-party cannot be bound by the terms of an
injunction unless the non-party is found to be acting in active
concert or participation with the party against whom injunctive
relief is sought.” (internal quotation marks omitted)); Person v.
Miller, No. 86-3880, 870 F.2d 655 (table), 1989 WL 20895, at *1
(4th Cir. Mar. 2, 1989) (unpublished) (“Under Fed. R. Civ. P. 65(d)
court orders are binding upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon
those persons in active concert or participation with them who
-2-
receive
actual
notice
of
the
order
by
personal
service
or
otherwise.” (internal quotation marks omitted)); Talbert v. Smith,
No. 7:05CV736, 2007 WL 773910, at *1 (W.D. Va. Mar. 9, 2007) (“It
is well settled that except in limited circumstances, which are not
alleged here, a court may not order injunctive relief against
non-parties.”); 11A Charles Alan Wright, et al., Federal Practice
and Procedure § 2956 (3d ed. 1998) (“A court ordinarily does not
have power to issue an order against a person who is not a party
and over whom
it
has
not
acquired
in
personam
jurisdiction.
Therefore, persons who are not actual parties to the action or in
privity with any parties may not be brought within the effect of a
decree merely by naming them in the order.
The only significant
exception to this rule involves nonparties who have actual notice
of an injunction and are guilty of aiding or abetting or acting in
concert
with
a
named
defendant
or
the
defendant’s
privy
in
violating the injunction.” (footnotes omitted)).2
2
The United States Supreme Court also has “noted an exception
to the general rule [against orders binding non-parties] ‘where a
special remedial scheme exists expressly foreclosing successive
litigation by nonlitigants, as for example in bankruptcy or
probate.’” Steans, 148 F.3d at 1270 n.15 (quoting Martin v. Wilks,
490 U.S. 755, 762 n.2 (1989), superseded in part by statute as
recognized in Landgraf v. USA Film Prods., 511 U.S. 244, 251
(1994)).
As documented above (like in Steans), “[n]o such
exception is present in the instant case.”
Id.
Additionally,
pursuant to the subpoena power, see Fed. R. Civ. P. 45, a federal
court may “compel the attendance of witnesses and the production of
documents so that the court may have access to all of the available
information for the determination of controversies before it.” 9A
Charles Alan Wright, et al., Federal Practice and Procedure § 2451
(continued...)
-3-
The All Writs Act, 28 U.S.C. § 1651, does authorize federal
courts
to
enter
orders,
“under
appropriate
circumstances,
to
persons who, though not parties to the original action or engaged
in wrongdoing, are in a position to frustrate the implementation of
a
court
order
or
the
proper
administration
of
justice,
and
encompasses even those who have not taken any affirmative action to
hinder justice.”
United States v. New York Tel. Co., 434 U.S. 159,
174 (1977) (citations omitted).
However, “[t]he powers of the
federal courts under the All Writs Act are not unlimited.”
United
States v. Venneri, 782 F. Supp. 1091, 1094 (D. Md. 1991); see also
Pennsylvania Bureau of Corr. v. United States Marshals Serv., 474
U.S. 34, 42 (1985) (rejecting notion that federal courts may enter
orders against non-parties based “upon a mere statement that such
an order would be ‘necessary or appropriate’”).
Plaintiff has
cited no authority supporting the view that the Court may employ
the All Writs Act to grant the relief sought in the instant letter
motion (see Docket Entry 44 at 1-2);3 nor has independent research
revealed any precedent for such action.
2
(...continued)
(3d ed. 1998).
As described above, Plaintiff’s instant letter
motion does not propose to obtain information via subpoena.
3
The instant letter motion cites four cases (see Docket Entry
44 at 2); however, each involved actions by prisoners against state
officials for denial of the federal constitutional right of access
to courts, not requests for orders against non-parties, see Bounds
v. Smith, 430 U.S. 817 (1977), Gluth v. Kangas, 951 F.2d 1504 (9th
Cir. 1991), Harrington v. Holshouser, 741 F.2d 66 (4th Cir. 1984),
and Canell v. Multnomah Cty., 141 F. Supp. 2d 1046 (D. Or. 2001).
-4-
Moreover, “[t]he
authority
to
statute.”
Pennsylvania Bureau of Corr., 474 U.S. at 43 (emphasis
added).
issue
All Writs Act is a residual source of
writs
that
are
not
otherwise
covered
by
Plaintiff possesses a statutory remedy against prison
officials under 42 U.S.C. § 1983, if their photocopying policies
violate his federal constitutional right of access to the courts.
See Lewis v. Casey, 518 U.S. 343 (1996).
That avenue, not resort
to extraordinary writs, provides the proper path (at least in this
Court) for Plaintiff to pursue the relief requested in the instant
letter motion.
See Cauthon v. Nelson, No. 95-3022, 74 F.3d 1248
(table), 1996 WL 3919, at *1 & n.4 (10th Cir. Jan. 4, 1996)
(unpublished) (affirming dismissal of petition, brought under 28
U.S.C. §§ 1361 and 1651, “seek[ing] relief from state prison
regulations which limit the number of photocopies inmates can make
in connection with their legal proceedings” and stating that the
“[p]etitioner should have brought an action in federal court
pursuant to 42 U.S.C. [§] 1983 alleging deprivation of federal
constitutional rights, or should have sought a writ of mandamus
against [the r]espondents in state court”).
IT IS THEREFORE RECOMMENDED that Plaintiff’s letter motion
(Docket Entry 44) be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 11, 2015
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