Johnson v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. et al
Filing
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ORDER that plaintiff is WARNED that further filings of frivolous documents will result in sanctions and the issuing of a pre-filing injunction order (Pursuant to Order filed in case 3:11-cv-389). Signed by District Judge Frank D. Whitney on 2/16/2012. (Pro se litigant served by US Mail.) (tmg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:11-cv-00389-FDW
RAYMOND A. JOHNSON,
Plaintiff,
vs.
HENDRICK AUTOMOTIVE GROUP and
HENDRICK HONDA,
Defendants.
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ORDER
THIS MATTER comes before the Court upon Defendants’ Motion for a Pre-Filing
Injunction (Doc. No. 7), Defendants’ Memorandum In Support of Its Motion for a Pre-Filing
Injunction against Plaintiff (Doc. No. 8), and Defendants’ Reply to Plaintiff’s Motion to
Strike/Dismiss (Doc. No. 16). Plaintiff responded in opposition (Doc. No. 11), submitted a Motion
to Strike/Dismiss the Motion for a Pre-Filing Injunction (Doc. No. 12), and Replied to Defendants’
Response to Motions for a Pre-Filing Injunction and Plaintiff’s Motion to Strike/Dismiss (Doc. No.
17). These motions are ripe for ruling and for the reasons set forth below, both motions are
DENIED.
Also, this case is before the Court on trial review pursuant to 28 U.S.C. § 1915(e)(2). For
the reasons set forth below, Plaintiff’s complaint is DISMISSED in its entirety.
I. BACKGROUND
Plaintiff's first lawsuit against Defendants was filed in March 2010. Johnson v. Hendrick
Automotive Grp. and Hendrick Honda, 3:10-cv-109 (W.D.N.C. 2010) ("Johnson I"). This Court
granted summary judgment for Defendants on Plaintiff’s claims and on Defendants’ counterclaims
for breach of contract on May 17, 2011, and awarded Defendants $20,000 in damages for the claims.
Id. However, the Court denied Defendants' motions for attorneys fees and Rule 11 monetary
sanctions.1 Id. (Doc. No. 99). The Court instead decided to strongly discourage future behavior by
taking Plaintiff's litigious behavior into consideration and informed Plaintiff in open court that,
"[T]he Court will not be so lenient in subsequent cases." Johnson I (Doc. No. 99, p. 14). This Court
entered a final judgment for Defendants on May 17, 2011, after Defendants voluntarily withdrew
their remaining claim. Johnson I (Doc. No. 103). Undeterred, Plaintiff filed several more motions
and amendments.2 On December 21, 2011, Plaintiff noticed his appeal to the Fourth Circuit.
Johnson I (Doc. No. 126).
Plaintiff then filed suit against Ogletree Deakins law firm and three of its attorneys who
represented Defendants in Plaintiff's first lawsuit. Johnson v. Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., C. Matthew Keen, Brian M. Freedman, and Shera K. Stewart, 3:11-cv-391 (W.D.N.C.
2011) ("Johnson II"). On November 28, 2011, the Honorable Max O. Cogburn, to whom that case
was assigned, adopted Magistrate Judge David Keesler's recommendation to dismiss Plaintiff's
complaint. Johnson II (Doc. No. 24). Thereafter, the court entered final judgment for Defendants.
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Separate from the motions, Plaintiff was warned that he could be held in contempt during oral arguments
for repeatedly evading questions from the Court and prolonging the hearing. (Transcript of Oral Argument at 30,
Johnson v. Hendrick Automotive Grp. and Hendrick Honda, 3:10-cv-109 (W.D.N.C. 2010)).
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The filings included six motions and amendments to reconsider, one motion to recuse Judge W hitney, and
one appeal to the 4 th Circuit. Contained within several of these filings are vexatious and malicious remarks
regarding the integrity of this Court, its officers, and Defendants. Such defamatory remarks, stated verbatim,
include: “[T]he Judge W hitney when on over an hour of time trying to buly and hamiliating [Plaintiff] in front of the
Defendant and thier attorney [sic].” (Doc. No. 106, p. 2). “Judge Frank D. W hitney action are allegely perplex
hypocrisy baffled unprecented sacreligious [sic].” (Id. at p. 3). “Judge W hitney unfair and unethical behavior was
very dumb found.” (Doc. No. 116, p. 3). “[T]he atty for defendants gave flase statement to the court [sic].” (Doc.
No. 117, p. 2). “[T]he Judge W hitney made flase statement about the rights of the EEOC [sic].” (Id.). “[I]t my
opinion and assumed that atty Keen will steal the Lord Supper. If he could get his hands on the Lord Supper [sic].”
(Doc. No. 122 p. 3). “[A]tty Matt Keen lied to [the Hon. Judge Mullen] about why he was voluntary dismissal of
entitlement [sic].” (Doc. No. 125, p. 6). Judge David Keesler lied on [the Hon. Judge Mullen] to court [sic]. (Id. p.
7).
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Johnson II (Doc. No. 25). Plaintiff moved for reconsideration, Johnson II (Doc. No. 26), which the
Court granted and reaffirmed its earlier order. Johnson II (Doc. No. 29).3 On December 21, 2011,
Plaintiff noticed his appeal to the Fourth Circuit. Johnson II (Doc. No. 27).
Plaintiff filed this lawsuit on August 10, 2011, against the same Defendants of his first
lawsuit. Johnson v. Hendrick Automotive Grp. and Hendrick Honda, 3:11-cv-389 (W.D.N.C. 2011)
("Johnson III"). The Johnson III complaint (Doc. No. 1) is identical to the Johnson I complaint filed
on March 11, 2010. (Doc. No. 1). Plaintiff only made superficial changes to four pages of his
Johnson I complaint, photocopied the remainder, and resubmitted his complaint as Johnson III. The
superficial changes consist of four hand written pages. The handwriting on pages "1," "2," "10," and
the "verification" allowed for Plaintiff to modify the submission date without changing the substance
of the complaint.
Plaintiff also filed and received permission to proceed in forma pauperis. Johnson III (Doc.
No. 3). The Court stayed service of the summons and Complaint pending initial review pursuant
to 28 U.S.C. § 1915(e)(2). Id.
II. ANALYSIS
Defendants request this Court to issue a pre-filing injunction against Plaintiff to prevent his
continued abuse of the judicial process. Although an injunction might be permissible under
applicable law, this Court has due process concerns regarding the adequacy of notice and Plaintiff's
pro se status. Thus, Defendants' request is denied at this time. By failing to enjoin Plaintiff today,
3
In Plaintiff’s Objection to Magistrate Judge’s Decision (Doc. No. 19) regarding an order denying
Plaintiff’s motion to reconsider (Doc. No. 17), Plaintiff alleged collusion between Defendants and Magistrate Judge
Keesler, fraud by Judge Keesler, Defendants filed false certificates of service, and racism. Throughout the motion
Plaintiff employed demeaning language towards all parties. Plaintiff then moved for M agistrate Judge Keesler’s
recusal alleging fraud, corruption, and abuse of the public trust. (Doc. No. 20, p. 6-7). Plaintiff repeated allegations
of fraud and collusion against Magistrate Judge Keesler and Defendants seven weeks later. (Doc. No. 26).
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the Court in no way condones this pro se litigant's conduct in these matters. The Court expressly
warns Plaintiff that any future filings of frivolous documents against the named Defendants in
Johnson I, Johnson II, and Johnson III or against defense counsel in those cases will result in Rule
11 sanctions and a pre-filing injunction order. Furthermore, Plaintiff’s case is dismissed in its
entirety as frivolous under the Court’s trial review pursuant to 28 U.S.C. § 1915(e)(2).
A. Pre-Filing Injunction
The All Writs Act, 28 U.S.C. § 1651(a) (2000), permits a federal court to restrict repeat
vexatious and malicious litigants access to the courts. Cromer v. Kraft Foods N. Am., Inc., 390 F.3d
812 (4th Cir. 2004). District courts have inherent power to control the judicial process and to
redress conduct that abuses that process. Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th
Cir. 2001) (citation omitted). There are no exceptions for pro se litigants. Armstrong v. Koury
Corp., 16 F. Supp. 2d 616, 620 (M.D.N.C. 1998). Limiting a pro se litigant's free access to the
courts should be approached cautiously and restrictions imposed only if "exigent circumstances"
exist, such as continuous abuse of the judicial process by filing meritless and repetitive actions.
Cromer, 390 F.3d 812 at 818.
In light of the authorities stated above, the Court does not take lightly the imposition of a
pre-filing injunction upon Plaintiff. In Cromer, the Fourth Circuit identified a test for determining
whether to impose restrictions on a litigant's access to the Courts. Id. The Court must:
weigh all the relevant circumstances, including (1) the party's history of litigation,
in particular whether he has filed vexatious, harassing, or duplicative lawsuits; (2)
whether the party had a good faith basis for pursuing the litigation, or simply
intended to harass; (3) the extent of the burden on the courts and other parties
resulting from the party's filings; and (4) the adequacy of alternative sanctions.
Id.; Tompkins v. Mitchell, 1:10-cv-186, 2011 WL 3296179 (W.D.N.C. Aug.1, 2011).
Because of due process concerns, pre-filing injunctions must be narrowly tailored based on
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the circumstances of each particular case. Cromer, 390 F.3d at 818. Additionally, the "district court
must afford the litigant notice and an opportunity to be heard." Larrimore v. Williamson, 288 Fed.
App'x. 62, 63 (4th Cir. 2008) (unpublished) (citing Cromer, 390 F.3d at 819). The Fourth Circuit
has deemed notice sufficient where a litigant was given "proper notice of the magistrate's
recommendations and ample opportunity to register his objections" before the injunction was
adopted.
Joyner v. Riley, No. 88-6698, 1988 WL 131841, at *1 (4th Cir. Dec. 2, 1988)
(unpublished).
"Ultimately, the question the court must answer is whether a litigant who has a history of
vexatious litigation is likely to continue to abuse the judicial process and harass other parties."
Black v. New Jersey, 2011 WL 102727, at *1 (E.D.N.C. Jan. 11, 2011) (unpublished) (quoting Safir
v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir.1986)).
The Court finds that Plaintiff has a litigious history in this judicial District with Defendants
as evident from the Johnson I, Johnson II, and Johnson III lawsuits. All three actions arose from
the same core alleged conduct. Additionally, over the last four years, Plaintiff has filed four EEOC
charges, a complaint with the North Carolina Department of Labor, and a complaint with the North
Carolina Industrial Commission all related to allegations concerning his brief employment with
Hendrick Honda. Plaintiff has noticed appeal of the Johnson I (Doc. No. 126) and Johnson II (Doc.
No. 27) lawsuits to the Fourth Circuit.
As this Court previously noted, "Plaintiff's deposition revealed that he has either filed EEOC
charges and/or lawsuits against six former car-dealer employers and as many as three malpractice
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actions against attorneys who represented him in the former proceedings."4 Johnson I (Doc. No. 99,
p. 14, n. 10).
Throughout the rulings in the Johnson cases, the Court has outlined Plaintiff's history of
filings in this judicial District and in at least two other states, reflecting a lack of respect for the
judicial process. Thus, the Court finds Plaintiff's history of litigation would support the imposition
of a pre-filing injunction.
Plaintiff's duplicative filings and repeated motions for reconsideration place a substantial
burden on the Court's limited judicial resources and on Defendants who must respond.5 Plaintiff
filed nine motions for reconsideration and amended motions for reconsideration in Johnson I.6
Moreover, many of Plaintiff's motions are not cognizable. As noted above, Plaintiff's docket entries
are littered with brazen defamatory statements calling into question the integrity of the Court and
are unmistakably void of any rational legal argument. Plaintiff's filings are "tiresome" and "wasteful
of the Court's time" and "wasteful of the Defendants' resources." Cromer, 390 F.3d at 818. The
Court finds that Plaintiff's motions lack good faith and are a burden on judicial and Defendants'
resources.
4
Plaintiff settled EEOC and W orker’s Compensation claims against former employer Cale Yarborough.
(Johnson I, Johnson Dep. 14, December 16, 2010). Plaintiff settled a W orker’s Compensation claim against former
employer Fowler M otors. (Id. at 15-16 and 21). Plaintiff settled two malpractice claims against his two attorneys
from the Fowler M otors settlement. (Id. at 16-17). Plaintiff sued the counsel for Cale Yarborough and is currently
pending appeal in South Carolina. (Id. at 18). Plaintiff settled EEOC and W orker’s Compensation claims against
former employer Arnold Palmer Motors (Id. at 20-22). Plaintiff filed claims against former employer Folger
Automotive. (Id. at 24-26). Plaintiff settled a malpractice claim against his attorney from the Arnold Palmer and
Folger Automotive claims. (Id. at 22). Plaintiff settled an EEOC claim against former employer Scott Clark. (Id. at
27-28). Plaintiff filed an EEOC claim against former employer Sam Johnson Lincoln M ercury. (Id. at 29-30).
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Plaintiff sought counsel at government expense less than one month after rejecting an offer from private
representation. Johnson I (Doc. Nos. 28 and 32). Plaintiff has twice sought transcripts at government cost. Id.
(Doc. Nos. 107 and 131).
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Johnson I has 131 docket entries as of February 16, 2012. Twenty-eight of these entries were subsequent
to the Court’s final judgment on May 17, 2011.
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The warning of sanctions has not deterred Plaintiff’s litigious conduct. The Court declined
to impose Rule 11 sanctions on Plaintiff in Johnson I based on (1) Plaintiff’s insolvency, (2)
Plaintiff’s pro se status, and (3) the fact Defendants prevailed on their counterclaim for breach of
the settlement agreement and were therefore entitled to $20,000 in damages. Johnson I (Doc. No.
99, p. 14). The Court expressed its hope that the damages award would allow Plaintiff to “grasp the
unfortunate impact of bringing such a baseless action” and “strongly caution[ed] Plaintiff that the
Court will not be so lenient in subsequent cases.” Id. Undeterred, Plaintiff filed a duplicative
complaint of the Johnson I lawsuit. Johnson III (Doc. No. 1). Thus, the Court finds that alternative
sanctions appear to be inadequate.
Despite the explicit warning in Johnson I (Doc. No. 99, p. 14), the Court's cautionary
language to Plaintiff lacked specificity regarding a pre-filing injunction. Defendants’ motion for
a pre-filing injunction and Plaintiff’s subsequent responses do not alleviate the Court's due process
concerns over issuing a pre-filing injunction against a pro se litigant at this time under these facts.
Thus, the Court finds the lack of a specific reference to a pre-filing injunction in the Court’s
previous warnings to Plaintiff would not appropriately support the notice requirement for the
imposition of a pre-filing injunction at this time.
B. Initial Review
When a plaintiff has filed in forma pauperis (“IFP”), "the court shall dismiss the case at any
time if the court determines that the action or appeal is frivolous or malicious [or] fails to state a
claim on which relief may be granted . . . ." 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A district court has
broad discretion to police in forma pauperis filings to prevent abuse of the statute. See Nagy v.
FMC Butner, 376 F.3d 252, 255, 257 (4th Cir. 2004); see also Michau v. Charleston County, S.C.,
434 F.3d 725, 728 (4th Cir. 2006) (noting that 28 U.S.C. § 1915(e) applies to all IFP filings, not just
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those filed by prisoners). Indeed, "to provide free access to the courts without overwhelming the
efficient administration of justice with meritless cases, the system relies primarily on the judgment
of the district courts to permit suits that are arguably meritorious and to exclude suits that have no
arguable basis in law or fact." Nasim v. Warden, Maryland House of Corr., 64 F.3d 951, 954 (4th
Cir. 1995). Under the statute, “the court shall dismiss the case at any time if the court determines
that the action or appeal is frivolous or malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (emphasis added).
“In evaluating a case under § 1915, a court may look to cases decided under Fed. R. Civ. P.
12(b)(6) for guidance.” Bullock v. Beasley & Allen, 2009 WL 2827950, at *2 (E.D.N.C. Aug. 28,
2009). To survive dismissal under Rule 12(b)(6), Plaintiff’s Complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Here, Plaintiff fails to carry his burden under Rule 12(b)(6) because he cannot demonstrate
that his current allegations are not barred by the doctrine of res judicata. The doctrine of claim
preclusion is implicated here because of the photocopied nature of Plaintiff’s current Johnson III
complaint. Claim preclusion, or res judicata, “bars a party from relitigating a claim that was
decided or could have been decided in an original suit.” Laurel Sand & Gravel, Inc. v. Wilson, 519
F.3d 156, 161 (4th Cir. 2008). Plaintiff has articulated claims in his current action verbatim to the
Johnson I complaint.
As the Court has noted, Plaintiff’s complaint in Johnson I asserts the exact claims against
the exact Defendants of the Johnson III complaint. Acting upon a motion for summary judgment
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by Defendants in Plaintiff’s Johnson I case, this Court granted summary judgment for Defendants
on all of Plaintiff’s claims. (Doc. No. 99). Obstinate, again acting pro se, Plaintiff merely made
superficial changes to four pages of his Johnson I complaint (Doc. No. 1), photocopied the
remainder, and resubmitted his complaint as Johnson III (Doc. No. 1). It is difficult to fathom
Plaintiff’s reasonable belief in the copied complaint’s likelihood of success or its presentation for
any proper purpose. Thus, the Court finds that Plaintiff’s Johnson III complaint has not been
submitted in good faith because it is barred by res judicata. Accordingly, pursuant to this Court’s
authority under 28 U.S.C. § 1915 and Rule 12(b)(6) of the Federal Rules of Civil Procedure, this
Complaint is dismissed.
III. CONCLUSION
In sum, this case is dismissed because it has no arguable basis in law or fact and, indeed, is
frivolous. Plaintiff’s latest Complaint is nothing more than Plaintiff’s attempt to relitigate claims
already ajudicated on the merits by the Court. Plaintiff’s repetitive, vexatious, and duplicative
filings have demonstrated a lack of respect for the judicial process and caused all participants to
expend considerable resources. The Court will not entertain frivolous filings. By failing to enjoin
Plaintiff today, the Court in no way condones this pro se litigant’s conduct in these matters.
Therefore, based upon aforementioned considerations the Court expressly warns Plaintiff that
any future filings of frivolous documents in this Court against any of the named Defendants
in Johnson I, Johnson II, and Johnson III, or against defense counsel in those cases will result
in Rule 11 sanctions and the issuing of a pre-filing injunction order. Such sanctions or
injunction could issue sua sponte, that is without motion from Defendants.
IT IS, THEREFORE, ORDERED that Defendant’s Motion for a Pre-Filing Injunction
(Doc. No. 7) is DENIED.
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IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike/Dismiss (Doc. No. 12) is
DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court shall refrain from issuing process
for Defendants because the Court has conducted its initial review and determined that Plaintiff is
not entitled to proceed with this action because it is dismissed as frivolous under 28 U.S.C. §
1915(e)(2). Therefore, Plaintiff’s Motion for Service of Process (Doc. No. 4) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Recusal (Doc. No. 13) is
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint is DISMISSED in its entirety for
the reasons stated herein. The Clerk is instructed to send a copy of this Order to Plaintiff’s address
of record and directed to close the case.
IT IS FURTHER ORDERED that Plaintiff is WARNED that further filing of frivolous
documents in this Court against any of the named Defendants in Johnson I, Johnson II, and
Johnson III, or against defense counsel in those cases will result in Rule 11 sanctions and the
issuing of a pre-filing injunction order. Such sanctions or injunction could issue sua sponte,
that is without motion from Defendants.
IT IS FURTHER ORDERED that the Clerk of this Court is instructed to spread a copy of
this Order in any case in which Plaintiff Raymond A. Johnson appears, including, but not limited
to, 3:10-cv-109 and 3:11-cv-391.
IT IS SO ORDERED.
Signed: February 16, 2012
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