Overton v. United States of America

Filing 20

REPORT & RECOMMENDATION that plaintiff be prohibited from filing any further motions or papers in this case, unless such motions or papers are first certified as non-friviolous by an attorney. The Clerk of Court should be specifically Directed not to accept any motions or papers presented by plaintiff unless such motions or papers are first certified as non-frivioulous by an attorney. Signed by Magistrate Judge Karen L. Litkovitz on 11/13/2012. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BILL MAX OVERTON,
Plaintiff

Case No. 1:11-cv-158
Spiegel, J.
Litkovitz, M.J.

vs
UNITED STATES OF AMERICA,
Defendant

REPORT AND
RECOMMENDATION

On October 22, 2012, the Court ordered plaintiff to show cause, in writing, why he has
not violated Federal Rule of Civil Procedure 11(b) and why sanctions should not be imposed
against him for repeatedly filing frivolous post-judgment motions. See Fed. R. Civ. P.
11(c)(l)(B). (Doc. 17). This matter is before the Court on plaintiffs response to the Court's
Show Cause Order. (Doc. 19).
For the reasons that follow, the undersigned recommends that the Court impose sanctions
against plaintiff pursuant to Rule 11 and order that plaintiff be prohibited from filing any further
motions or papers in this case, except for a notice of appeal to the Sixth Circuit Court of Appeals
if he wishes to obtain review of the Orders of this Court, unless such motions or papers are first
certified as non-frivolous by an attorney.
Pursuant to Fed. R. Civ. R. 11(a), a prose litigant must sign every pleading, written
motion, and other paper submitted to the Court for filing. Such signature constitutes a certificate
by the pro se litigant that ''to the best of [his] knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances," such pleading, motion, or paper "is not being
presented for any improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation" and "the claims, defenses, and other legal contentions therein

are warranted by existing law or by a nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law." Fed. R. Civ. P. ll(b)(l), (2). The
Court may impose appropriate sanctions against a pro se litigant for his violation of Rule 11. See
Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 548 (1991)
(Rule 11 "speaks of attorneys and parties in a single breath and applies to them a single
standard."); Spurlockv. Demby, 48 F.3d 1219 (6th Cir. 1995)(unpublished), 1995 W.L. 89003, at

* 2 (Rule 11 does not provide a different standard for attorneys and non-attorneys).

See also

Doyle v. United States, 817 F.2d 1235 (5th Cir. 1987). "[P]ro se filings do not serve as an
'impenetrable shield [from the application of Rule 11], for one acting prose has no license to
harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded
court dockets."' Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988) (quoting Farguson v.
MBank Houston, NA., 808 F.2d 358,359 (5th Cir. 1986)).
In determining the propriety of Rule 11 sanctions, the Court should consider the party's
ability to pay, the degree of bad faith or want of diligence, the costs resulting from the party's
inappropriate conduct, mitigating conduct, if any, and that amount necessary and effective to
bring about deterrence under all the particular circumstances. Orlett v. Cincinnati Microwave,
Inc., 954 F.2d 414, 419-20 (6th Cir. 1992). Deterrence is the paramount objective ofRule 11.

!d.
Assessing these factors, the Court finds the degree of bad faith on the part of plaintiff to
be significant. On April13, 2011, plaintiffs motion to proceed in forma pauperis was denied
and plaintiff was granted thirty days to either pay the required filing fee of $350.00 or to submit
an affidavit showing that his income, assets and debts are such that he is unable to provide
2

himself and his family with the necessities of life and still have sufficient funds to pay the full
filing fee. (Doc. 7). Plaintiff was notified that his failure to pay the filing fee or to submit the
required affidavit within those thirty days would result in plaintiffs case being closed. !d.
Plaintiff failed to timely comply with the Court's Order and on May 17, 2011, the Court
closed and terminated plaintiffs case on the docket of the Court. (Doc. 11).
Plaintiff appealed and on August 18, 2011, the United States Court of Appeals for the
Sixth Circuit entered an Order dismissing plaintiffs appeal of the District Court's decision for
want of prosecution. (Doc. 14).
Similar to his actions in Overton v. USA, Case No. 1:11-cv-591 (S.D. Ohio), plaintiff has
continued to file motions in this case (see Docs. 15, 16) over which this Court has no
jurisdiction. In view of this Court's Order dismissing plaintiffs case (Doc. 11) and the Order of
the Sixth Circuit Court of Appeals dismissing plaintiffs appeal (Doc. 14), this Court lacks any
basis upon which to consider the motions of the nature submitted by plaintiff. See Fed. R. Civ.
P. 59, 60.
Plaintiff is well-aware from his actions and this Court's rulings in Overton v. USA, Case
No. 1: 11-cv-591 (S.D. Ohio), a case which presented circumstances virtually identical to those in
the instant case, that the filing of post-judgment, post-appeal motions is inappropriate and
consumes valuable time of the Court. A pro se litigant may not flagrantly ignore relevant
procedural or substantive rules of law. The post-judgment motions filed by plaintiff are
frivolous. They are not based on a plausible view of the law and, because of their nature, appear
to be filed for purposes of harassment or to cause unnecessary delay and expense to this Court in
the resolution of its other cases.
3

Plaintiffs response to the Court's show cause order fails to set forth any rational
justification for his filing of frivolous post-judgment motions. Plaintiff does not address the
basis for the show cause order, but instead argues that he is entitled to default judgment because
the defendant was "properly served" and failed to answer. Plaintiff is incorrect. Plaintiffs
complaint was never properly filed, and therefore never served on defendant, as plaintiff failed to
pay the required filing fee of $350.00 or submit an affidavit with the required income and debt
information in support of his in forma pauperis motion. Plaintiffs complete disregard of the
Court's orders and his failure to demonstrate any valid reason for such filings amounts to bad
faith in this matter.
In addition, the cost of plaintiffs actions to the Court in this and its other cases is high.
Plaintiffs frivolous post-judgment motions have wasted this Court's limited resources, delayed
the Court's resolution of other cases, and deprived other litigant's claims the prompt attention to
which they are entitled. As the Supreme Court has noted, "Every paper filed with the Clerk of
this Court, no matter how repetitious or frivolous, requires some portion of the institution's
limited resources. A part of the Court's responsibility is to see that these resources are allocated
in a way that promotes the interests of justice." In re McDonald, 489 U.S. 180, 184 (1989).
Plaintiffs persistence in filing frivolous post-judgment motions, even after the Court's repeated
Orders in Overton v. USA, Case No. 1: 11-cv-591 (S.D. Ohio) to the contrary, has caused an
unnecessary drain on this Court's resources and constitutes an abuse of the judicial process. The
court has the inherent power to prevent the abuse of its procedure, which includes the imposition
of sanctions.
Rule 11 authorizes sanctions of a nonmonetary nature. Kratage v. Charter Township of

4

Commerce, 926 F. Supp. 102, 105 (E.D. Mich. 1996). Courts have restricted prose litigants
from filing further pro se actions without a certification from the Court or an attorney that the
claims asserted are not frivolous and that the suit is not brought for any improper purpose. See
Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir. 1992); Sawchyn v. Parma Municipal Court, 114
F.3d 1188 (6th Cir. 1997) (unpublished), 1997 W.L. 321112. The Court finds that a similar
sanction is appropriate in this case "to deter repetition of such conduct" by plaintiff. Fed. R. Civ.
P. 11(c)(2).
IT IS THEREFORE RECOMMENDED that plaintiff be prohibited from filing any
further motions or papers in this case, unless such motions or papers are first certified as
non-frivolous by an attorney. The Clerk of the Court should be specifically DIRECTED not to
accept any motions or papers presented by plaintiff in this action unless such motions or papers
are first certified as non-frivolous by an attorney. The above recommendation does not apply to
any notice of appeal to the Sixth Circuit Court of Appeals plaintiff wishes to file to obtain review
of any Order imposing sanctions. This recommendation is not intended to place any limitation
upon plaintiffs ability to pursue litigation in the United States District Courts or in the courts of
any state except in the particular action now before the Court. Nor is this recommendation
intended to prohibit plaintiff from filing any new lawsuits that have a legitimate basis and
comply with Fed. R. Civ. P. 11(b) after payment of the appropriate filing fee.

Date:

____u!lr-.,~~;3~~~~--=-1
I

Karen L. Litkovitz, Magistrate J
United States District Court
5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1:11-cv-158
Spiegel, J.
Litkovitz, M.J.

BILL MAX OVERTON,
Plaintiff
vs
UNITED STATES OF AMERICA,
Defendant

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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