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ANDERSON v. D.C. PUB. DEFENDER SERV.

March 6, 1995

GRANT ANDERSON, Plaintiff,
v.
D.C. PUBLIC DEFENDER SERVICE, et al., Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 Prior to June 16, 1993, plaintiff Anderson had filed numerous complaints in this and other courts against judges, lawyers, and others who had participated in his 1988 prosecution and conviction for crimes of violence. On June 16, 1993, I issued an injunction prohibiting plaintiff from filing any further complaints with this Court without first seeking and obtaining leave to file. The Court of Appeals, however, held that such an injunction should not have been entered without first giving this incarcerated plaintiff an opportunity to be heard on the issue. On remand, appointed counsel filed briefs for plaintiff and represented him at a hearing with regard to whether, and if so, upon what conditions, an injunction is appropriate in this case. Upon careful consideration of the voluminous record and other relevant materials, I find that the injunction should remain in effect. In order to facilitate the appeal process which will inevitably follow this decision, the history of this protracted case is chronicled in some detail below.

 I

 On September 7, 1988, a jury convicted plaintiff of assault with intent to commit rape while armed, two counts of first degree burglary while armed, and assaulting, resisting, or interfering with a police officer with a dangerous weapon. See Anderson v. U.S., D.C. Court of Appeals Memorandum Opinion No. 88-1522 (Feb. 28, 1990). On November 28, 1988, plaintiff's counsel filed a notice of appeal. Plaintiff's convictions, with the exception of one of the burglary charges, were affirmed by the District of Columbia Court of Appeals on February 28, 1990. See id.

 On April 6, 1990, plaintiff filed in the D.C. Superior Court a pro se motion to vacate sentence, arguing that he was denied effective assistance of counsel. See U.S. v. Anderson, Criminal No. F-7226-88, Memorandum Opinion and Order of July 26, 1990, at 9. The Superior Court reviewed plaintiff's ineffective assistance claims *fn1" and found them "wholly without merit." Id. at 11. Plaintiff's motion to vacate sentence was denied in a considered Memorandum Opinion and Order dated July 26, 1990, which noted that "all of [Anderson's] assertions that his trial counsel was ineffective and/or deficient are unsubstantiated by the record and transcripts of the trial proceeding below." Id. at 13.

 Plaintiff next argued that the mandate affirming his convictions should be withdrawn because of the ineffectiveness of his appointed appellate counsel. That request was denied by the D.C. Court of Appeals on July 19, 1990. On August 8, 1990, plaintiff's motion for expansion of the record and for appointment of counsel was denied by Judge Cushenberry because "no useful purpose would be served by granting the request for expansion or for appointment of counsel since the Court has already denied [plaintiff's] Motion to Vacate after a careful review of the trial record." See Affidavit of DiFonzo, Att. to Motion to Dismiss, at 5, quoting Order of August 8, 1990. *fn2"

 On August 27, 1990, plaintiff filed this action against the D.C. Public Defender Service, the D.C. Office of Bar Counsel, Mark Rochon (original appointed counsel who represented plaintiff through presentment), Avis Buchanan (subsequently appointed counsel who represented plaintiff through indictment, trial and sentencing), and J. Herbie DiFonzo (appellate counsel, appointed by the D.C. Court of Appeals). *fn3" In his complaint, plaintiff alleged, inter alia, "ineffective assistance of trial lawyer Buchanan and appellate attorney DiFonzo" and "criminal conspiracy of the plaintiff to deprive him of his rights to resort to remedy." Complaint at P 10. Specifically, plaintiff claimed that Buchanan failed to interview witnesses, failed to explore inconsistencies in the testimony presented by the Government, and misquoted evidence in her summation. *fn4" Id. at P 12. He claimed that DiFonzo: (i) failed to pursue the theory that Anderson was intoxicated at the time of the crimes and, therefore, could not formulate the requisite intent to commit them; and (ii) refused to charge that the trial transcripts were falsified. *fn5" See id. at P 13. In addition, plaintiff alleged that "defendant Rochon participated in the conspiracy by failing to properly investigate the case." Plaintiff sought hundreds of millions of dollars in relief, as well as a declaratory judgment. Id. at Count VI, p. 4-5.

 On November 23, 1990, plaintiff filed a pro se motion to voluntarily dismiss defendants Rochon and D.C. Public Defender Service. That motion was treated as a praecipe of dismissal and was granted on November 27, 1990. An Order of February 12, 1991, granted the motion to dismiss of the Office of Bar Counsel based upon absolute immunity, granted the motions to dismiss of Buchanan and DiFonzo because plaintiff failed "to allege sufficient facts to establish that Buchanan and DiFonzo acted under color of state law," and dismissed plaintiff's complaint. See Anderson v. D.C. Public Defender Service, 756 F. Supp. 28, 30-31 (D.D.C. 1991).

 On February 25, 1991, plaintiff filed a notice of appeal "to the United States District Court Judge for the District of Columbia from the memorandum dismissing the plaintiff's complaint" and a "motion to stay judgment to appeal to the district judge pursuant to Rule 76 F.R.C.P." Rule 76 governs appeals from magistrate judges and is inapplicable to plaintiff's case. Nevertheless, this Court treated plaintiff's filing as a motion to reconsider under Rule 60(b), and denied the motion because plaintiff "failed to provide any substantially new evidence or legal authorities." Order of March 14, 1991.

 On November 16, 1992, the Court of Appeals affirmed dismissal of the Office of Bar Counsel, vacated the portion of the February 12 Order that dismissed the claims against Buchanan and DiFonzo, and remanded this action for further proceedings, holding that "the heightened pleading standard" applicable in Section 1983 cases brought against public officials was not applicable to claims against those defendants. Anderson v. D.C. Public Defender Service, 298 U.S. App. D.C. 369, 980 F.2d 746 (D.C. Cir. 1992). Plaintiff filed a motion for leave to file an amended complaint on January 29, 1993. He also filed a motion to consolidate this matter with Anderson v. Buchanan, Civil Action No. 92-1709, because both cases "involve identical issues and questions of law and the same presiding judge and forum." Plaintiff's motion to file an amended complaint was granted, and an amended complaint was filed on February 5, 1993. Plaintiff's motion for consolidation was denied on March 11, 1993.

 Plaintiff next filed an "affidavit for disqualification or recusal of Judge Louis F. Oberdorfer" on April 27, 1993. He filed discovery requests and a motion for default against two newly named defendants -- Judge Reggie B. Walton (the presiding judge in plaintiff's criminal trial) and Jerry Massie (the prosecuting U.S. Attorney), who had not answered the amended complaint. On May 28, 1993, plaintiff filed a "motion for reassignment to successive trial judge." Another such motion was filed on June 7. *fn6" On June 16, 1993, plaintiff's motions for disqualification or recusal and for reassignment were denied, together with his motion for default judgment. The claims against defendants Walton and Massie were dismissed based upon absolute immunity, the motions to dismiss filed by defendants Buchanan and DiFonzo were granted because plaintiff "alleged no facts " demonstrating that there existed a conspiracy with government officials or that defendants acted under color of state law, and plaintiff's amended complaint was dismissed with prejudice. Memorandum and Order of June 16, 1993 (emphasis in original).

 Also on June 16, this Court noted that plaintiff had filed 33 complaints "against a variety of prosecutors, defense counsel (including the Public Defender), judges, (and) the Bar Counsel of the District of Columbia Bar," and "appeals and applications to the Court of Appeals for writs of mandamus as well as filing charges with the Chief Judges of this Court and the Circuit, seeking reassignment of his cases or recusal of judges." Injunction Order of June 16, 1993, at 1. This Court also held that:

 
except for the instant case, which was remanded by the Court of Appeals and is hereby dismissed after reconsideration, none of [plaintiff's] complaints or appeals have been found to have merit. Whatever may have been the basis for plaintiff's original claims, their repetition after rejection has no tenable basis, is demonstrably frivolous, and is an abuse of the processes of this Court.

 Id. (emphasis added). Plaintiff was accordingly enjoined "from filing any new complaint or petition for relief in the United States District Court for the District of Columbia without first moving for leave of court to file." Id. at 2. Plaintiff was further instructed to attach to each complaint or petition for relief a copy of the Injunction, together with a motion captioned "Application Pursuant to Court Order Seeking Leave to File," which demonstrated: "(a) that his claim or claims are neither frivolous nor taken in bad faith; (b) a tenable basis for each claim; and (c) why each claim is not precluded by his previous suits." Id. The Order further advised plaintiff that "failure to comply strictly with the terms of the injunction itself shall be sufficient grounds for denying leave to file." Id.

 On June 28, 1993, plaintiff filed a notice of appeal "from the memorandum and permanent injunction." On October 12, 1993, the Court of Appeals affirmed the dismissal of plaintiff's amended complaint. That Court also vacated the injunction of June 16 and remanded for further proceedings because the record failed to reflect whether plaintiff had received "the requisite notice and opportunity to be heard" before the injunction was entered. Anderson v. Buchanan, No. 93-7116 (D.C. Cir., Oct. 12, 1993).

 Thereafter, plaintiff filed a motion requesting the appointment of a special master and appointment of counsel, and a motion for summary judgment. An Order of December 22, 1993, denied plaintiff's requests for a special master and for summary judgment, granted his request for appointment of counsel, and set a briefing schedule with respect to whether plaintiff should be enjoined from filing new complaints or petitions for relief without prior leave of court. A hearing was held on May 31, 1994. *fn7" In sum, plaintiff's position is that the injunction is inappropriate because many of his complaints "have raised legitimate grievances and are not so lacking in merit as to be patently frivolous." Pl's Memo in Response to Show Cause Order, at 2. In the alternative, plaintiff argues that he should "be permitted to raise claims based on new claims or facts not previously considered or disposed of by a federal court without the need of first seeking leave of Court." Id. at 2-3.

 II

 It is axiomatic that "prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72 (1977). That "right of access to the courts, however, is neither absolute nor unconditional." In re Green, 215 U.S. App. D.C. 393, 669 F.2d 779, 785 (D.C. Cir. 1981). Although limitations on free access to the courts should be the exception to the rule, reasonable restrictions may properly be imposed in certain circumstances. "It is now well settled that a court may employ injunctive remedies to protect the integrity of the courts and the orderly and expeditious administration of justice." Urban v. United Nations, 248 U.S. App. D.C. 64, 768 F.2d 1497, 1500 (D.C. Cir. 1985). It has also been held that "federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions." In Re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984), quoted in Stich v. United States, 773 F. Supp. 469, 470 (D.D.C. 1991), aff'd, 298 U.S. App. D.C. 141, 976 F.2d 1445 (D.C. Cir. 1992).

 Our Court of Appeals has held that when contemplating issuing an injunction in a case such as this, "it is incumbent upon the district court to make substantive findings as to the frivolous or harassing nature of the litigant's actions." In re Powell, 271 U.S. App. D.C. 172, 851 F.2d 427, 431 (D.C. Cir. 1988) (emphasis added). *fn8" This Court is, therefore, required to "discern if the litigant is filing numerous, similar complaints, and whether the litigant is attempting to harass a particular adversary." Id. In making such an assessment, the Court of Appeals has instructed that "both the number and content of the filings bear on a determination of frivolousness or harassment." Id. at 434 (emphasis added).

 A

 Although there has been some dispute about the number of cases plaintiff has actually filed in the federal district courts in the District of Columbia, it is certain that plaintiff has filed at least 31 cases with this Court, 30 of which were filed between 1990 and 1994. *fn9" Nevertheless, an injunction should not issue for "mere litigiousness alone." Id. In accordance with the mandated procedure, this Court has scrutinized plaintiff's litigation history in this forum. A sample of plaintiff's legal activities is next described.

 At the outset, it is abundantly clear that anyone who has had any contact with plaintiff's legal matters is a likely candidate to become a defendant in a subsequent suit. Plaintiff has sued at one time or another nearly every actor in the criminal justice system, usually raising unsupported allegations of some conspiracy to deprive him of his rights. Among those who have come under attack by plaintiff are: several District Courts; Judges in the Superior Court and Federal District Court; the Administrative Office; virtually every lawyer who has been appointed to represent plaintiff in connection with his criminal case and subsequent convictions and appeals; the U.S. Attorneys' Office and several Assistant U.S. Attorneys; clerks at the United States Supreme Court, the United States Court of Appeals for the District of Columbia, and the District of Columbia Court of Appeals; a court reporter; a courtroom deputy; the D.C. Public Defender Service; and D.C. Bar counsel. Several of the above-noted defendants have been sued by plaintiff on numerous occasions; Assistant U.S. Attorney Jerry Massie, for example, has been sued on three occasions for his involvement in plaintiff's trial in Superior Court, *fn10" and plaintiff's appointed trial and appellate counsel have each been sued by plaintiff multiple times.

 Plaintiff's propensity for recycling and repackaging claims has not gone without notice. This Court earlier determined that "the facts alleged and claims raised" in Anderson v. Buchanan, Civil Action No. 92-1709, were "identical to those dismissed for failure to state a claim" in Anderson v. D.C. Public Defender Service, Civil Action No. 91-7040. Order of April 26, 1993 in Anderson v. Buchanan, at 1. Buchanan, DiFonzo, D.C. Public Defender Service, D.C. Bar Association and the D.C. Office of Bar Counsel, defendants in this action, were all named as defendants in Anderson v. D.C. Public Defender, as well. Plaintiff concedes that he alleged nearly identical claims against the same defendants sued in the instant case in Anderson v. Buchanan. See Transcript of May 31, 1994, hearing at 10. Each of these cases related to plaintiff's criminal conviction. Furthermore, many of the same claims against the same defendants had previously been deemed frivolous by Judge Cushenberry when plaintiff raised them in Superior Court in a motion to vacate sentence. See n. 4, supra.

 In addition, plaintiff asserted that he was denied effective assistance of counsel in a habeas corpus petition styled Anderson v. Ridley, Civil Action No. 91-182. In his petition, plaintiff also asserted bias on the part of his trial judge, and argued that the government failed to disclose evidence to him. Judge Hogan dismissed the action for lack of subject matter jurisdiction, since plaintiff's motion to vacate sentence based on ineffective assistance, prosecutorial misconduct and inaccurate trial transcript had not yet been decided by the Superior Court. Order of April 22, 1991. *fn11" As previously noted, the Superior Court found plaintiff's claims to be without merit. See page 2, supra.

 Plaintiff complained about his court-appointed counsel in yet another case, Anderson v. Cubriel, Civil Action No. 92-1927. There plaintiff pressed allegations of "ineffectiveness of appellate counsel for failure to petition the court in the trial court level to address his claim of ineffectiveness of trial counsel." Motion to Vacate Sentence at 5-6 (emphasis added). Despite the extraordinary amount of judicial resources that had already been expended with regard to plaintiff's various attacks on his conviction, plaintiff has also asserted an "inordinate delay of more than (40) forty months to deprive him of due process . . . to resolve ineffectiveness of appellate counsel." Id. at 6.

 Undaunted by the dismissal of his claims in Cubriel and Ridley, plaintiff instituted Anderson v. U.S. Attorney's Office, et al., Civil Action No. 91-2262. In that case, plaintiff sued the prosecuting attorney at plaintiff's criminal trial, the attorney who defended against plaintiff's motion to vacate sentence, and the U.S. Attorney's Office for failure to properly supervise those attorneys, alleging that the defendants conspired to withhold information which would show bias on the part of the trial judge. On January 11, 1993, that action was dismissed for failure to state a claim upon which relief could be granted.

 Plaintiff next alleged a larger, more broad-based conspiracy; this time, the purported conspiracy had been formed to interfere with plaintiff's court mailings with the ultimate goal being to deprive plaintiff of access to the courts. See Ibrahim v. Thornburg, et al., Civil Action No. 91-2637. Those claims reappeared in Anderson v. Administrative Office of the United States Courts, et al., Civil Action No. 92-1201, which was dismissed as frivolous. In Administrative Office, plaintiff sued all the judges of the Superior Court for the District of Columbia, the D.C. Court of Appeals, the U.S. Court of Appeals for the D.C. Circuit, and its clerks, the Administrative Office of the U.S. Courts, the U.S. Postal Service, a Justice Department attorney, the Mayor of the District of Columbia, and various other governmental departments. His complaint encompassed a "laundry list of alleged violations of plaintiff's access to the justice system." June 16, 1992 Order. In dismissing the case, this Court found that "the nature of the causes of action combined with plaintiff's prayer for one million dollars in compensation, combine to make a showing that the Complaint is frivolous." Id. at 1.

 In Thornburg, plaintiff sued the Attorney General, the U.S. Court of Appeals, Supreme Court clerks, the Department of Justice, the FBI, the Administrative Office of the U.S. Courts, the D.C. Superior Court, the U.S. Court of Appeals, clerks from the Court of Appeals, the Mayor, the Postal Service, and the Office of Judicial Tenure, seeking one million dollars in compensatory damages and one million dollars in punitive damages against each defendant. Plaintiff once again raised various conspiracy theories. Thornburg was dismissed for failure to provide "a short and plain statement of the claim showing that the pleader is entitled to relief," pursuant to Federal Rule of Civil Procedure 8(a). Nevertheless, the claims asserted in that case were nearly identical to those asserted in Administrative Office, were similarly without merit, and rightfully could have been dismissed as frivolous.

 After being transferred to a prison in Texas, plaintiff changed the targets of his conspiracy claims. In Ibrahim v. U.S. District Court, et al., Civil Action No. 93-060, plaintiff sued courts in the Western District and Southern District of Texas, as well as the Fifth Circuit Court of Appeals, regarding his confinement conditions and trial proceedings, seeking $ 2,000,000 in compensatory and punitive damages. Plaintiff complained that the court had "done all things possible to undermine, subvert, and evanesce plaintiff's rights to resort to redress of his grievance. The defendant[]s continue[] to erect barriers to deny him the right to petition the Court ...


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