CUTLER v. GREEN et al

Filing 5

ORDER THAT UPON CONSIDERATION OF THE EMERGENCY MOTION TO VACATE ORDER AND SUMMARY JUDGMENT 3 BY PLAINTIFF JEFFREY CUTLER, WHO IS PROCEEDING PRO SE, IT IS ORDERED THAT THE MOTION IS DENIED, ETC. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 3/22/17. 3/22/17 ENTERED AND COPIES MAILED TO PRO SE.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFREY CUTLER
v.
AMBER GREEN, et al.

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CIVIL ACTION
NO. 17-984

MEMORANDUM AND ORDER
AND NOW, this 22nd day of March, 2017, upon consideration of the emergency motion
to vacate order and summary judgment (Dkt. No. 3) by plaintiff 1 Jeffrey Cutler, who is
proceeding pro se 2, it is ORDERED that the motion is DENIED for the reasons that follow.
Mr. Cutler, who identifies himself as the “East Lampeter Township Elected Tax
Collector,” filed this suit on March 3, 2017. Dkt. No. 1. In his motion filed on March 20, 2017,
he asserts that he brought this action “to defend the Constitution and protect the taxpayers and
himself from irreparable harm.” Dkt. No. 3 at ECF p. 3 (emphasis and capitalization omitted).
He asks the court for “immediate injunctive relief and summary judgment in this case.” 3 Id. at
ECF p. 9 (emphasis and capitalization omitted).

1

Although in his complaint and amended complaint Mr. Cutler refers to himself as
the defendant in this action, he filed the action and is thus the plaintiff.
2
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520
(1972).
3
To the extent that plaintiff’s “emergency” motion can be liberally construed as
seeking a temporary restraining order pursuant to Rule 65 of the Federal Rules of Civil
Procedure, the Court cannot grant plaintiff such relief because he has not certified in writing any
efforts he made to give notice to the adverse parties and the reasons why it should not be
required. See Fed. R. Civ. P. 65(b)(1)(B). Rule 65(b)(1) provides that
[t]he court may issue a temporary restraining order without written
or oral notice to the adverse party or its attorney only if:

In Mr. Cutler’s motion, he complains about actions undertaken by Judge Margaret Miller
in a case in the Court of Common Pleas for Lancaster County. 4 Dkt. No. 3 at ECF p. 1. Mr.
Cutler contends that, after a secret hearing” on March 7, 2017, id. at ECF p. 1 (emphasis in
original), “Judge Miller issued a ruling on 15MAR2017 [sic] stopping Mr. Cutler from doing his
job and freezing his bank accounts.” Id. at ECF p. 2. He then complains that during a hearing on
March 17, 2017, “Judge Miller was clearly confused and in error about the case material.” Id. at
ECF p. 3. Consistent with the attachments to Mr. Cutler’s motion, on March 17, Judge Miller
entered an Order which, inter alia, required Fulton Bank to “continue to freeze Defendant Jeffrey
Cutler’s Tax Collector Account,” enjoined Mr. Cutler “from performing any duties as Tax
Collector for East Lampeter Township,” and required Mr. Cutler to “deliver all books and
records associated with his tax collection duties to the Lancaster County Controller within ten
(10) days of the date of th[e] Order.” Id. at ECF p. 31-32.

(A) specific facts or a verified complaint clearly show that
immediate and irreparable injury, loss or damage will result to the
movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts made to
give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1) (emphasis added). To date, plaintiff has not filed such a certification
with the Court.
Nor, for that matter, has Mr. Cutler yet provided the Court with proof that defendants
have been served with his amended complaint. Mr. Cutler is reminded that Rule 4(m) of the
Federal Rules of Civil Procedure provides, in relevant part, that “[i]f a defendant is not served
within 90 days after the complaint is filed, the court – on motion or on its own after notice to the
plaintiff – must dismiss the action without prejudice against that defendant or order that service
be made within a specified time.” Fed. R. Civ. P. 4(m).
4
Although he does not specifically identify the case in the body of his motion, the
motion also attaches a number of documents which appear to be filings in East Lampeter
Township v. Jeffrey Cutler (Lancaster Cnty. Ct. Comm. Pleas Dkt. No. CI-15-05424). See, e.g.,
Dkt. No. 3 at ECF p. 17-18 (Order and Rule to Show Cause), id. at ECF p. 19-25 (East Lampeter
Township’s Petition for Special Injunction and to Supplement the Record).
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Mr. Cutler contends that Judge Miller’s actions– allegedly taken between the date on
which he filed this action and the date on which he filed the instant motion – “demonstrate a
violation of the fourteenth amendment to the United States constitution, equal protection [sic],”
claiming that “[t]he transcript of the Hearing Arguments for [the Lancaster County] case is not
available,” and “[t]he judge made a ruling (within 10 minutes) without all the case material
reviewed properly.” Id. at ECF p.3. He asserts that “[t]he rapid dates and short periods is [sic]
an effort to prevent Mr. Cutler from appearing in front of the Supreme Court of Pennsylvania
and incarcerate and assassinate him in prison, by finding him in contempt of court.” Id.
In his amended complaint in this action, Mr. Cutler asks this Court to, inter alia, “Order
Judge Miller . . . to Cease and Desist any effort to rule on case Cl-15-0524 and disclose all
conversations, meeting minutes and parties involved in trying to circumvent the Pennsylvania
Supreme Court and violate Mr. Cutler’s civil rights.” Dkt. No. 2 at ECF p. 9. He also contends
that Judge Miller had no legal authority to enter an order allowing his counsel to stop
representing him and asks this Court to order Judge Miller to vacate that order. Id.
To the extent that plaintiff s motion asks me to undo certain decisions of the Lancaster
County Court of Common Pleas in the case brought against him by East Lampeter Township, I
must abstain under Younger v. Harris, 401 U.S. 37 (1971), a decision which prevents federal
courts from enjoining pending state proceedings absent extraordinary circumstances. 5 See
Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 437 (1982). The
Court must abstain where: “(1) there are ongoing state proceedings involving the would-be
federal plaintiffs that are judicial in nature, (2) the state proceedings implicate important state
interests, and (3) the state proceedings afford an adequate opportunity to raise the federal
5

The court may raise the issue of Younger abstention sua sponte. See O’Neill v.
City of Phila., 32 F.3d 785, n.1 (3d Cir. 1994).
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claims.” 6 Middlesex County, 457 U.S. at 432; Gwynedd Properties, Inc. v. Lower Gwynedd
Twp., 970 F.2d 1195, 1200 (3d Cir. 1992). A case is considered “ongoing” so long as a party
has yet to exhaust state appellate remedies. O’Neill v. City of Phila., 32 F.3d 785 (3d Cir. 1994),
quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) (“‘[A] necessary concomitant of
Younger is that a party must exhaust his state appellate remedies before seeking relief in the
District Court.’”).
With respect to the first prong of Younger, it appears from Mr. Cutler’s own submissions
that there are pending state court proceedings involving him which raise issues directly related to
the issues he raises in this matter. See, e.g., Dkt. No. 3 at ECF p. 17-18 (Order and Rule to
Show Cause), id. at ECF p. 19-25 (East Lampeter Township’s Petition for Special Injunction and
to Supplement the Record). As for the second prong, these state court proceedings undoubtedly
implicate East Lampeter Township’s legitimate interest in the collection of tax revenue. See
Dkt. No. 3 at ECF p. 19-23 (East Lampeter Township’s Petition for Special Injunction and to
Supplement the Record). East Lampeter Township contends that Mr. Cutler “issued
unauthorized tax bills to the residents of East Lampeter Township,” that he “continues to fail to
reconcile bank statements and keep proper books, records, and accounts of all money collected
by him as taxes” and that he “repeatedly fails to provide timely tax certifications to title
companies and others upon request.” Id. at ECF p. 21. With respect to the third prong, to the
extent that Mr. Cutler’s motion raises federal constitutional objections, he is not unable to raise
his claims in the ongoing state court proceeding. See Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 17
6

The only basis for federal court interference is where one of four exceptions are
met: (1) irreparable injury is both great and immediate; (2) the state law is flagrantly and patently
violative of express constitutional prohibitions; (3) there is a showing of bad faith or harassment;
or (4) other unusual circumstances call for equitable relief. Mitchum v. Foster, 407 U.S. 225,
230 (1972), citing Younger v. Harris, 401 U.S. 37, 46–54 (1971). It does not appear to the Court
that any of these exceptions have been met.
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(1987) (“Article VI of the United States Constitution declares that ‘the Judges in every State
shall be bound’ by the Federal Constitution, laws, and treaties.”). Indeed, it appears that
plaintiff’s has asserted violations of his right to due process and the fourteenth amendment in his
filings in the state court proceeding. See Dkt. No. 3 at ECF p. 29.
Because it appears that all three Younger elements are met, I must abstain and therefore
cannot grant plaintiff the relief he seeks in his emergency motion.

s/Thomas N. O’Neill, Jr.
THOMAS N. O’NEILL, JR., J.

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