D'Amario v. Heagney et al

Filing 45

ORDER denying 42 MOTION Relef from Judgment. So Ordered by United States District Judge D. Brock Hornby, District of Maine on 5/23/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
ARTHUR D’AMARIO, III,
PLAINTIFF
v.
MANHATTAN HOUSING
SPECIALISTS, INC., ET AL.,
DEFENDANTS

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CIVIL NO. 1:12-CV-00779-DBH-MJK

ORDER ON MOTION FOR RELIEF FROM JUDGMENT
Arthur D’Amario, III has moved “for relief from the sanctions order
entered by Judge Hornby on or about Oct. 13, 2013, and requests an
evidentiary hearing,” relying upon Fed. R. Civ. P. 60(b)(4)-(6). Pl.’s Mot. 1 (ECF
No. 42).
D’Amario appears to be referring to my Order of October 30, 2013 (ECF
No. 31), which, first, affirmed the October 16, 2013, Recommended Decision of
Magistrate Judge Kravchuk (ECF No. 29) that the Court should dismiss
D’Amario’s lawsuit against Manhattan Housing Specialists, Inc., et al., and,
second, concluded that D’Amario henceforth should be treated as a vexatious
litigant who has abused his right of access to this Court and enjoined him from
making further filings without prior leave of court.

D’Amario appealed that

October 30, 2013, decision to the United States Court of Appeals for the First
Circuit, but he procedurally defaulted and his appeal was dismissed. D’Amario
v. Manhattan Hous. Specialists, Inc., No. 13-2511, slip op. at 1 (1st Cir.
Feb. 25, 2015).

The current motion is a prime example of why D’Amario is enjoined from
filings without prior leave of court.

It is a four-page single-space rant

recounting his complaints about conduct back to at least 1983 and covering
lawyers and federal judges from the First and Third Circuits, Rhode Island,
New Jersey, New Hampshire, and Maine, as well as state judges from Rhode
Island.
The motion does not propose a new lawsuit that D’Amario seeks leave to
file.

Instead, it appears to be a broad request that all restrictions on him

against federal filings in the District of Rhode Island be lifted, that this case be
reassigned to a “judge from without the 1st Circuit,” and for an evidentiary
hearing on the motion. Pl.’s Mot. 5. He has shown no grounds for this relief
under Rule 60(b) or any other authority.
Contrary to D’Amario’s assertion that I entered the October 30, 2013,
Order “with no notice, hearing or findings,” Pl.’s Mot. 2, he had notice of the
possibility of restrictions from the Magistrate Judge’s Recommended Decision
of October 16, 2013, id. at 15-16.

The Magistrate Judge gave a succinct

description of the reasons justifying restrictions and a court’s power to order
them.

I had earlier placed D’Amario on notice on June 5, 2008, that filing

restrictions might be in the offing. D’Amario v. United States, No. 05-216-P-H,
slip op. at 2-3 (D.R.I. June 5, 2008). I recounted that earlier 2008 notice in my
October 30 Order, id. at 2. D’Amario also characterizes the October 30, 2013
Order as denying him “DNA testing of forensic evidence held by the state” and
says that I “whimsically concluded that because Plaintiff’s motion in a criminal
proceeding under the new Innocence Protection Act had been denied, he was
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collaterally estopped from seeking DNA testing in an independent civil action.”
Pl.’s Mot. 2. There is no such reference in the Order. What I actually did on
his claim for DNA testing was adopt the Recommended Decision of the
Magistrate to dismiss D’Amario’s claim against the City of Attleboro.

The

Magistrate Judge’s reasoning, which I adopted, was:
[U]nder [Ashcroft v. Iqbal, 556 U.S. 662 (2009)] pleading
standards the conclusory statement regarding an official
municipal policy of harassment is insufficient. Assuming
the preposterous allegations in this proposed amended
complaint are true, half of them have nothing to do with the
City of Attleboro and its agents or officers. Furthermore,
the allegations concerning the sporadic actions of individual
Attleboro police officers over a span of almost fifteen years
do not in and of themselves create an official policy.
D’Amario has not sued the individual officers and thus
apparently thinks he can simply skip the requirement of
municipal liability under section 1983 that requires him to
first prove a constitutional violation by one or more officers.
Or course, if he tried to establish the constitutional liability
of these officers for his “wrongful” conviction, he would run
into Heck v Humphrey, 512 U.S. 477 (1994), which bars
civil lawsuits for allegedly unconstitutional conduct if the
allegations, if proved, would render his underlying
conviction invalid.

Recommended Dec. at 15.
For these reasons, D’Amario’s motion for judicial reassignment, an
evidentiary hearing, and relief from the provisions of the October 30, 2013,
requiring prior leave of court to make further filings is DENIED.
SO ORDERED.
DATED THIS 23RD DAY OF MAY, 2018
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
DISTRICT OF MAINE

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