Craft v. Global Expertise in Outsourcing et al

Filing 144

ORDER denying 128 Motion to Vacate ; denying as moot 130 Motion for Leave to Appeal in forma pauperis; denying 134 Motion for Order; denying 134 Motion to Consolidate Cases; denying 135 Motion for Leave to Appeal in forma pauperis; denying 136 Motion for Order; denying as moot 137 Motion to Appoint Counsel ; denying as moot 138 Motion to Compel; denying as moot 143 Motion to Supplement, as more fully set out. Signed by Honorable David L. Russell on 10/4/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LOUIS DOUGLAS CRAFT, JR.,
Plaintiff,
v.
GLOBAL EXPERTISE IN
OUTSOURCING, et al.,
Defendants.

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Case No. CIV-12-1133-R

ORDER
Plaintiff Louis Douglas Craft, Jr., a prisoner proceeding pro se, has filed several
motions before this Court. Given Plaintiff’s pro se status, the Court construes his filings
liberally.
This is the latest round of post-judgment motions in Plaintiff’s 42 U.S.C. § 1983
action. This Court dismissed Plaintiff’s complaint on September 19, 2014 due to Plaintiff’s
failure to exhaust his administrative remedies. Doc. Nos. 86, 87. Since that time, Plaintiff
has filed numerous post-judgment motions, many of which rest on his contention that
Defendants or Defendants’ counsel has tampered or interfered with his filings.
Most recently, Plaintiff moved to set aside the judgment (Doc. No. 110), moved for
recusal (Doc. No. 111), and moved for leave to proceed in forma pauperis (Doc. No. 113).
The Court struck these as untimely and for lack of jurisdiction (Doc. No. 114) and
inappropriate (Doc. No. 115). Plaintiff then filed a motion for leave to file a supplemental
motion (Doc. No. 116), which the Court denied (Doc. No. 117), and a motion for a new
trial/motion to amend order (Doc. No. 118), which the Court denied (Doc. No. 120).
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Plaintiff appealed these orders to the Tenth Circuit. See Doc. No. 121. On July 12, 2016,
the Tenth Circuit affirmed the court’s orders. Case No. 16-6034; see also Doc. No. 140.
While the appeal was pending, Plaintiff filed several more motions, which are the
subject of this Order. These are addressed, in turn, below.
1.

Motion for the Court Orders and Judgment Vacated for Fraud on the Court
Newly Discovered (Doc. No. 128)
In this Motion, Plaintiff ostensibly seeks to vacate several of this Court’s orders

(Doc. Nos. 73, 86, 87, 92, 114, 117, and 120) on the basis of fraud on the Court. Doc. No.
128.
Upon review of Plaintiff’s arguments, however, the fraud he complains of occurred
before the appellate court, not this Court. Plaintiff argues that Defendants’ counsel altered
his opening appellate brief to remove/alter certain paragraphs and legal authority and his
appendix was altered. As the undersigned has explained to Plaintiff before, this Court does
not have jurisdiction to set aside the decision of the appellate court. Nor can this Court set
aside its orders based on purported fraudulent conduct that occurred in subsequent
appellate proceedings before the appellate court.
Accordingly, Plaintiff’s Motion (Doc. No. 128) is DENIED.
2.

Motion for Leave to Proceed on Appeal In Forma Pauperis (Doc. No. 130)
Plaintiff filed what appears to be an anticipatory notice of appeal (Doc. No. 129).

His motion to proceed in forma pauperis appears to be related to that notice. On June 14,
2016, the Tenth Circuit issued an order noting that the notice of appeal was not linked to
an appealable decision. See Doc. No. 133.
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Accordingly, Plaintiff’s Motion (Doc. No. 130) is DENIED as MOOT.
3.

Motion to Appeal by Permission and Consolidate Cases (Doc. No. 134)
In this motion, Plaintiff gives notice of intent to appeal for “Doc. Nos. 110-final”

and appears to seek permission for such an appeal, and that such an appeal be consolidated
with Case No. 16-6034. Doc. No. 110 is Plaintiff’s “Motion For the Court Order And
Judgment to Be Set Aside for Mistake During the Appellate Proceedings.”
As to the latter request, this Court lacks jurisdiction to consolidate cases before the
Tenth Circuit. And in any event, the Tenth Circuit has issued a decision in Case No. 166034, rendering any such request moot.
Regarding Plaintiff’s motion to appeal by permission, it is not clear to the Court
what specifically Plaintiff is requesting. Construing Plaintiff’s pro se filings liberally, it
appears that Plaintiff would like permission from this Court to appeal orders the Court had
not yet entered at the time of filing. Such a request is not ripe at this juncture and is therefore
DENIED.
Plaintiff has already appealed Doc. Nos. 114 and 115, which are orders that address
Plaintiff’s Motions, Doc. Nos. 110-113. To the extent Plaintiff seeks permission to appeal
those orders, such a request is MOOT because Plaintiff has already appealed those orders,
(Doc. No. 121) and the Tenth Circuit has already issued an opinion (Doc. No. 140).
Finally, to the extent Plaintiff seeks permission to appeal this Order under Rule 5 of
the Federal Rules of Appellate Procedure, such a request is not proper. Requests for
permission under Rule 5 are read in conjunction with 28 U.S.C. § 1292(b). Through Section
1292(b), Congress empowered district courts to permit interlocutory appeals only if (1) the
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order is not otherwise appealable; (2) the order involves a controlling question of law; (3)
there is substantial ground for difference of opinion as to the question at issue; and (4) an
immediate appeal will materially advance the termination of the litigation. However,
because this order is a final order and “otherwise appealable,” Plaintiff does not require
permission from this Court under Rule 5 to file an appeal with the Tenth Circuit.
4.

Motion for Leave to Proceed on Appeal In Forma Pauperis (Doc. No. 135)
Plaintiff also filed a motion for leave to proceed on appeal in forma pauperis. Doc.

No. 135. Pursuant to 28 U.S.C. ' 1915(a)(3), a litigant is not entitled to proceed in forma
pauperis on appeal if the appeal is not taken in good faith. An appeal is not taken in good
faith if the issues presented are frivolous in that they involve inarguable legal conclusions.
See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Having reviewed the record herein, the
Court finds that the appeal is not taken in good faith. Accordingly, the Court finds that
Plaintiff is not entitled to proceed without payment of the filing fee and his motion [Doc.
No. 135] is DENIED. Plaintiff is advised that unless he pays the appellate filing fee in full
to the Clerk of this Court in a timely manner, his action may be subject to dismissal by the
appellate court.
5.

Motion for Findings of Fact and Conclusions of Law (Doc. No. 136)
Plaintiff next asks this Court to make findings of fact and conclusions of law with

respect to his motions, Doc. Nos. 110, 112, 116, and 118. As discussed above, these
motions have already been addressed and were, at the time Plaintiff filed the motion, the
subject of Plaintiff’s appeal before the Tenth Circuit. The appeal divested this Court of
jurisdiction as to those orders. See W.N.J. v. Yocom, 257 F.3d 1171, 1173 (10th Cir. 2001).
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The Tenth Circuit has now issued a decision in Appeal No. 16-6034, rendering this motion
moot.
Accordingly the Court DENIES Plaintiff’s Motion (Doc. No. 136).
6.

Motion for an Appointment of Legal Counsel (Doc. No. 137), Motion to Compel
Attorney Don G. Pope, Warden Rodney Byrd, Correction Corporation of
America, to Answer Admission’s [sic] and Produce Documents (Doc. No. 138),
and Motion to Supplement Motion for Appointment of Counsel (Doc. No. 143).
Having dismissed Plaintiff’s post-judgment motions, the Court DENIES these

motions as MOOT.
IT IS SO ORDERED this 4th day of October, 2016.

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