Massi v. Walgreen Co

Filing 66

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 59 Report and Recommendation; granting 5 Motion to Dismiss; dismissing 22 Motion to Supplement re 20 Response in Opposition to Motion; dismissing 25 Motion to Correct the Record; dismissing 30 Motion for Leave to File; dismissing 35 Motion for Judicial Notice; dismissing 43 Motion to Allow Plaintiff to File Proof of Walgreens Fraud; dismissing 44 Motion for Judicial Notice; dismissin g 49 Motion for Leave to Inform this Court of Fraudulant Materials on the Docket; denying 62 Motion for Relief from Judgment FRCP Rule 60(b)(3) Fraud on the Court; dismissing 63 Motion for Writ of Mandamus; granting 65 Motion to Strike. Signed by Honorable Cameron McGowan Currie on 9/25/2013. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Clay Massi,

)
)
Plaintiff,
)
)
v.
)
)
Walgreen Co.,
)
)
Defendant.
)
___________________________________ )

C.A. NO. 0:13-538-CMC-PJG

OPINION AND ORDER

This matter was removed to this court by Defendant pursuant to 28 U.S.C. § 1332. Plaintiff’s
pro se complaint asserts claims of violations of his civil rights.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), DSC, this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and
a Report and Recommendation (“Report”). On September 6, 2013, the Magistrate Judge issued a
Report recommending that Defendant’s motion to dismiss be granted, that Plaintiff’s pending
motions be either dismissed or denied, and that this matter be dismissed with prejudice. The
Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the
Report and the serious consequences if he failed to do so. On September 23, 2013, Plaintiff filed
objections to the Report (ECF No. 64), a motion for relief from judgment pursuant to Federal Rule
of Civil Procedure 60(b)(3) (ECF No. 62), and a “Petition for Writ of Mandamus,” (ECF No. 63).1
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
1

On September 24, 2013, Plaintiff moved to strike the petition for writ of mandamus. ECF
No. 65. This motion (ECF No. 65) is granted and the petition of writ of mandamus is dismissed.
1

See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After conducting a de novo review of the record, and after considering the applicable law,
the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections and other filings,
the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court adopts and
incorporates the Report and Recommendation by reference in this Order.
As explained in the Report, this is the fifth legal action Plaintiff has instituted relating to
Defendant’s improper filling of a prescription in Tennessee in 2004.2 Report at 2-4 (ECF No. 59).
Plaintiff’s first three actions were filed in the Eastern District of Tennessee (referred to as Massi I,
Massi II, and Massi III in the Report). The last two, including this action, were filed in this Court
(Massi IV and Massi V).
Like Massi II and Massi III and the post-trial motions in Massi I, this action alleges that
Defendant and its attorney perpetrated fraud on the court in Massi I. The Report recommends this
matter be dismissed as barred by the doctrine of res judicata because actions involving the same
parties and issues have already been litigated to finality. Report at 7. The Report also notes that
“courts have not recognized an independent damages action based upon fraud upon the court.” Id.
at 8 (citing Chewning v. Ford Motor Co., 35 F. Supp. 2d 487, 489 (D.S.C. 1998)).
2

Massi I was tried to jury verdict which found for Plaintiff. The jury award was reduced
based upon a finding of Plaintiff’s comparative negligence, and judgment was entered in the amount
of $13,750.00. This judgment has been satisfied.
2

In response to the Report, Plaintiff filed the three above-noted documents. These documents
are different in introductory language and conclusions, but contain the same substantive content; that
is, reiterations of the fraud Plaintiff believes was perpetrated on the court in Massi I, and, to some
degree, Massi II-IV. Each of these documents also argues the Report failed to consider Plaintiff’s
response to Defendant’s motion to dismiss. Plaintiff contends that the Report
did not even consider Massi’s responsive pleading [Doc. No. 20, exhibits 1-7]. The
court’s 9 page ruling [Doc. No. 59-1, exhibit 9] had a single sentence as justification
for dismissing the lawsuit [sic] “The defendant first argues that the allegations in this
matter are barred by the doctrine of res judicata. The court agrees.”
See ECF Nos. 62, 63, & 64 at 3.3 Plaintiff maintains that “[f]raud on the Court prohibits a res
judicata defense. The court avoided the issue by refusing to acknowledge Plaintiff responded. Fraud
on the Court occurred in every legal proceeding including the case before this Court.” Id.
A review of Plaintiff’s objections and the “Rule 60(b)(3)” motion confirm that the current
case is primarily a collateral attack on Massi I. To the extent the complaint goes beyond a collateral
attack on Massi I, it is an attack on the determinations of Massi II-IV, which were, in the end,
primarily collateral attacks on Massi I. All four of Plaintiff’s earlier cases have been fully litigated
and are now final.
Plaintiff fails to provide any authority for the proposition that the doctrine of res judicata is
unavailable where the issue of fraud on the court has been litigated to finality. That is the case here,
as revealed by the litigation history of Massi I-IV.
Out of an abundance of caution, the court has reviewed Plaintiff’s memorandum in
opposition to the motion to dismiss. This memorandum (as well as Plaintiff’s post-Report filings)

3

The “ruling” to which Plaintiff refers is the recommendation in the Report (ECF No. 59).
3

confirms that Plaintiff’s arguments were considered by the Magistrate Judge in formulating the
Report. Plaintiff’s argument that his claims constitute valid “independent” causes of action for
“fraud on the court” and that Defendant’s arguments are “null and void due to Walgreen’s fraud on
the court” ignore the circumstances of this particular case. ECF No. 20 at 1. For example, Plaintiff
relies on an appellate decision, Chewning v. Ford Motor Co., as authority for an independent action
for fraud upon the court. See ECF No. 20 at 4. Plaintiff has not provided this court with the citation
for this case; however, it appears Plaintiff refers to the South Carolina Supreme Court’s decision in
Chewning v. Ford Motor Co., 579 S.E.2d 605 (S.C. 2003).4 In this case, the South Carolina
Supreme Court held that equitable relief may be available for extrinsic fraud upon a court. However,
nothing in this decision suggests that there is an independent claim for damages available for fraud
on the court, or that such an action may be pursued in any court other than the one which issued the
original decision.5
Plaintiff’s memorandum also cites various state law decisions in which one party seeks to
enforce an order which the other party challenges as void. However, these cases stand for the

4

The South Carolina Supreme Court decision was based upon a case which had been
remanded to state court after removal. See Chewning. v. Ford Motor Co., 35 F. Supp. 2d 487, 489
(D.S.C. 1998). The district court remanded the case to state court for a determination whether there
was available equitable relief under state law, noting that equitable claims for relief must be pursued
in the court which rendered the initial decision. Chewning, 35 F. Supp. 2d at 489 (citing Weisman
v. Charles E. Smith Management, Inc., 829 F.2d 511, 513 (4th Cir. 1987), for the proposition that
there are “three methods by which a party may seek to vacate a verdict, all of which must be
addressed by the court in which the action occurred”). Following Chewning and Weisman, any
motion or action to vacate the earlier decision in Massi I-IV must be pursued only in the Eastern
District of Tennessee, if at all. Had the issues not already been litigated, this court would, therefore,
transfer the matter to that court.
5

Contrary to his arguments in his recently filed documents, Plaintiff’s complaint seeks
monetary rather than equitable relief. That relief is, moreover, sought from a court other than the
one that was the alleged “victim” of the fraud.
4

proposition that a court asked to determine whether a previous judgment is void considers whether
the issuing court had jurisdiction over the parties. This is a far more limited review than Plaintiff
seeks here. Essentially, Plaintiff’s complaint seeks reconsideration of substantive legal rulings of
the courts which issued the earlier decisions. In this circumstance, such relief is available only from
the United States Supreme Court.
A review of Plaintiff’s complaint confirms that the focus of this action is alleged misconduct
by Defendant in prior litigation. See, e.g., ECF No. 1 ¶ 6 (referring to the improper filling of a
prescription in November 2004); id. ¶ 10 (referring to a “case” being held in Knoxville, Tennessee
in November 2006); id. ¶ 13 (referring to an October 2007 motion for a new trial); and id. ¶ 15
(stating “[t]here were a series of appeals due to accusation of Fraud upon the Court.”). Additionally,
the causes of action focus on Defendant and its agents’ litigation-related conduct.6
Accordingly, the court grants Defendant’s motion to dismiss, and dismisses this matter with
prejudice.7 Plaintiff’s motion for relief from judgment (ECF No. 62) is denied as premature because

6

For example, the first cause of action alleges Defendant’s attorney caused Plaintiff to suffer
a denial of his civil rights because the attorney “fraudulently presented exhibits and testimony in
Federal Court which impaired the impartial performance of the court.” ECF No. 1 at ¶¶ 24-26. The
second cause of action alleges Defendant denied Plaintiff’s Fifth Amendment right to due process
“during court proceedings from 09/11/2007 to 03/2/2012” including by “fraudulent actions in the
District Court and Circuit Court[.]” Id. ¶¶ 28-29. The third cause of action, for “Intentional infliction
of emotional distress and mental duress,” alleges Plaintiff suffered a stroke due to the improper
prescription after which Defendant used Plaintiff’s “disabilities in an attempt to inflict an emotional
and mental duress.” The only specific actions referenced are as follows: “Walgreens [sic]
intentionally tortured Massi for 4 years in an effort to prevent discovery of fraud upon the Court.”
Id. ¶ 37. Thus, even the emotional distress claim focuses on actions relating to the prior litigation
in Massi I-IV.
7

The only alternative ruling available to this court is transfer of the action to the Eastern
District of Tennessee. If Plaintiff believes he has new evidence that might persuade that court to
modify its earlier rulings, he should seek relief in that court, subject to the prefiling requirements
imposed by the Sixth Circuit.
5

no judgment has been entered.8
IT IS SO ORDERED.

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
September 25, 2013

8

As noted by the Report, Plaintiff has filed several additional motions relating to the merits
of his case or which seek to supplement pleadings with additional unspecified evidence. These
motions (ECF Nos. 22, 25, 30, 35, 43, 44, and 49) are dismissed.
6