Pemberton v. Patton et al

Filing 116

ORDER denying 109 Motion to Vacate ; denying 110 Motion to Amend/Correct; denying 113 Motion for Leave to File Objection Exceeding Page Limit. Signed by Honorable Timothy D. DeGiusti on 11/22/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PAUL CURTIS PEMBERTON,
Plaintiff,
v.
ROBERT C. PATTON, et al.,
Defendants.

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Case No. CIV-14-129-D

ORDER
Before the Court is Plaintiff’s Motion to Vacate and/or Set Aside the Order
and Judgment and to Reopen the Case [Doc. No. 109]. In his Motion, Plaintiff seeks
to vacate (1) the Court’s Order adopting the Magistrate Judge’s Report and
Recommendation, which dismissed Plaintiff’s Complaint for failure to state a claim
and exhaust administrative remedies [Doc. No. 51]; (2) the Court’s Order striking
Plaintiff’s Amended Complaint [Doc. No. 103]; and (3) the Court’s Order denying
Plaintiff’s Motion to Vacate and Set Aside the Prior Judgment Nunc Pro Tunc and
other various motions [Doc. No. 108]. As stated in his Motion, Plaintiff asserts the
requested relief should be granted
on the grounds of mistake, inadvertence, surprise, the Court lacked
jurisdiction of the subject matter and acted in a manner inconsistent
with due process rendering the judgment void and an extraordinary
circumstance, because the District Court violated the law, court rules
and the provisions of the Code of Judicial Conduct[.]

Mot. at 1-2. For the reasons stated below, the Court finds Plaintiff’s Motion should
be denied.
Plaintiff, a state prisoner appearing pro se, brought the present action against
numerous defendants, mostly prison officials, alleging violations of his
constitutional rights during his confinement.1 The matter was referred to United
States Magistrate Judge Charles B. Goodwin for initial proceedings. Upon
conducting an initial review of the Complaint and accompanying exhibits,2 Judge
Goodwin found and recommended that all claims be dismissed as (1) barred by the
Court’s disposition of Plaintiff’s previous lawsuit, and/or (2) failing to state a claim
upon which relief may be granted, and/or (3) barred by Eleventh Amendment
immunity, or (4) barred due to lack of exhaustion under the Prison Litigation Reform
Act of 1995 (“PLRA”) as codified in pertinent part at 42 U.S.C. § 1997e(a). See
generally Report and Recommendation (“R&R”) [Doc. No. 48]. The Court
overruled Plaintiff’s objections, adopted the R&R in its entirety, and assessed
another “strike” against Plaintiff [Doc. No. 51, 52].

1

Plaintiff filed a previous action on September 7, 2010 in which he raised multiple
legal claims, including several of the same claims now raised in the instant case,
against some of the same defendants. The Court dismissed Plaintiff’s claims, some
with prejudice and some without, and assessed a “strike” under 28 U.S.C. § 1915(g).
The Tenth Circuit Court of Appeals dismissed Plaintiff’s appeal and the Supreme
Court denied his petition for writ of certiorari.
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Plaintiff’s Complaint was 265 pages in length and accompanied by 334 pages of
exhibits.
2

Plaintiff filed a Motion to Alter or Amend Judgment, which was denied [Doc.
Nos. 58, 60]. The Tenth Circuit dismissed his subsequent appeal as frivolous and
assessed another strike against Plaintiff, which resulted in Plaintiff accruing four
strikes in total (the Tenth Circuit had assessed a third strike in response to a related
appeal). Accordingly, the court found Plaintiff could not proceed without
prepayment of fees in any future civil action or appeal unless he was under imminent
danger of serious physical injury [Doc. Nos. 80-82]. Shortly after his appeal was
submitted, Plaintiff filed a Motion for Relief from Judgment [Doc. No. 77] in which
he requested that the aforementioned Order and Judgment dismissing his Complaint
be set aside. That motion was denied [Doc. No. 92]. Plaintiff’s Motion for
Reconsideration was denied as well [Doc. No. 96].
On May 18, 2017, Plaintiff filed an Amended Complaint [Doc. No. 97]. The
Amended Complaint was stricken, however, as Judgment had been entered and
Plaintiff failed to show any reason that warranted having the Judgment vacated or
set aside [Doc. No. 103]. The Tenth Circuit has repeatedly cited the general rule that
once judgment has been entered, the filing of an amended complaint is not
permissible until the judgment is set aside or vacated. See, e.g., Brannon v.
Boatmen’s First Nat. Bank of Okla., 153 F.3d 1144, 1150 (10th Cir. 1998) (affirming
denial of leave to amend, noting plaintiffs neither sought leave to amend prior to
entry of judgment, nor sought to amend judgment or have it vacated pursuant to
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either Rule 59(e) or 60(b)). Plaintiff then filed a Motion to Vacate and Set Aside the
Prior Judgment Nunc Pro Tunc and a Motion for Leave to File Amended Complaint
[Doc. Nos. 105-106]. The Court denied these motions as untimely and repetitive of
arguments previously raised [Doc. No. 108].
Undeterred, Plaintiff has now filed another Motion to Vacate and/or Set Aside
the Order and Judgment and to Reopen the Case [Doc. No. 109]; another Motion for
Leave to File an Amended Complaint [Doc. No. 110]; two notices of his intent to
seek recusal of the undersigned [Doc. Nos. 111, 112]; a Motion for Leave of the
Court to File an Objection Exceeding the Page Limits [Doc. No. 113];3 a document
entitled “Written Objections to the District Court’s Order” [Doc. No. 114]; and an
“Affidavit of Paul Pemberton for Bias or Prejudice of Judge” [Doc. No. 115].4
As previously stated throughout these proceedings, Plaintiff’s Motion, as
before, fails to provide the Court with any justification to vacate or set aside the
Judgment entered in this case. Plaintiff’s Motion is needlessly verbose, repetitive,
conclusory, and fails to articulate a single cogent reason as to why the Judgment

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Despite filing a motion, Plaintiff filed his oversized objection without leave of
Court.
4

A motion made under Rule 60(b) must be made “within a reasonable time” and
within one year where “mistake, inadvertence, surprise, or excusable neglect” is
alleged. See id. In addition to the fact that the Court has denied Plaintiff’s prior
requests, Plaintiff’s motion – as it relates to the Court’s April 13, 2015 order
dismissing his Complaint – is untimely and will not be considered.
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dismissing his Complaint should be lifted. Plaintiff has incurred multiple strikes
throughout this litigation. Despite being repeatedly advised of the deficiencies of his
request, he has continued to file multiple lengthy motions without any discernable
factual or legal support. The federal courts have limited resources; frequent frivolous
filings diminish the ability of the courts to manage their dockets for the efficient
administration of justice. To this end, “[f]ederal courts have the inherent power to
regulate the activities of abusive litigants by imposing carefully tailored restrictions
under appropriate circumstances.” Ysais v. Richardson, 603 F.3d 1175, 1180 (10th
Cir. 2010) (citing Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). Plaintiff
is warned that the future filing of vexatious motions may result in the imposition of
sanctions, including, but not limited to, an injunction prohibiting Plaintiff from
making future filings without leave of court.
Accordingly, Plaintiff’s Motion to Vacate and/or Set Aside the Order and
Judgment and to Reopen the Case [Doc. No. 109], Motion for Leave to File an
Amended Complaint [Doc. No. 110], and Motion for Leave of the Court to File an
Objection Exceeding the Page Limits [Doc. No. 113] are DENIED as set forth
herein.

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IT IS SO ORDERED this 22nd day of November 2017.

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