Opinion
6:14-CV-06416 EAW
2021-09-13
Jeffrey Blane HOUGHTALING, Plaintiff, v. Deborah EATON, Senior C.C. Gowanda, Defendant.
Jeffrey Blane Houghtaling, Rochester, NY, Pro Se. Gary M. Levine, Heather Lynn McKay, New York State Office of the Attorney General, Rochester, NY, for Defendant.
Jeffrey Blane Houghtaling, Rochester, NY, Pro Se.
Gary M. Levine, Heather Lynn McKay, New York State Office of the Attorney General, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Plaintiff Jeffrey Blane Houghtaling ("Plaintiff"), proceeding pro se , asserts claims against defendant Deborah Eaton ("Defendant") pursuant to 42 U.S.C. § 1983. (Dkt. 11). Presently before the Court are the following motions: Plaintiff's motion for a bench trial (Dkt. 143); Plaintiff's motion for summary judgement (Dkt. 153); Plaintiff's motion to withdraw his jury trial demand (Dkt. 157); and Plaintiff's motion for an immediate restraining order (Dkt. 214). For the reasons discussed below, Plaintiff's motions are denied.
DISCUSSION
I. Plaintiff's Motion for a Bench Trial and Motion to Withdraw Jury Trial Demand
Plaintiff moves for a bench trial (Dkt. 143) and relatedly moves to withdraw his jury trial demand (Dkt. 157). Plaintiff cites to the obstacles presented by the COVID-19 pandemic and their impact on the disposition of his case, stating that he has decided to withdraw his jury trial demand and proceed with a bench trial before the Court. (Dkt. 143 at 2; Dkt. 157 at 2).
In their pleadings, both Plaintiff and Defendant made demands for a jury trial. (See Dkt. 11 at 22 (Plaintiff requesting in second amended complaint "[a] jury trial on all issues triable by a jury"); Dkt. 17 at 1 (Defendant's answer to second amended complaint, specifying that a jury trial is demanded)). Although Plaintiff no longer desires a jury trial, "the right to a jury trial is a fundamental right," see S.E.C. v. Masri , 551 F. Supp. 2d 320, 321 (S.D.N.Y. 2008), and Plaintiff's unilateral request that his case be converted to a bench trial is not sufficient. Rule 39 of the Federal Rules of Civil Procedure provides, in relevant part:
(a) When a Demand Is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless:
(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or
(2) the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial.
Fed. R. Civ. P. 39(a). Accordingly, Plaintiff's case may only proceed as a bench trial if (1) the parties agree, on the record, to a nonjury trial, or (2) the Court finds that on some or all of the issues presented, there is no federal right to a jury trial. Neither of those exceptions apply here. Defendant has not agreed to proceed by way of a bench trial, and Plaintiff's case—brought pursuant to 42 U.S.C. § 1983 —is not one of those classes of cases where there is no federal right to a jury trial. The case will proceed as a jury trial unless Plaintiff and Defendant stipulate to a bench trial, and Plaintiff's motion for a bench trial and motion to withdraw his jury trial demand are therefore denied.
II. Plaintiff's Motion for Summary Judgment
On November 6, 2020, Plaintiff filed a document entitled "Notice of Motion for Summary Judgment in support of Motion for Summary Judgment ECF 118, ECF 145 and Motions for Sanctions Docket 127, 127-1, Docket 131, FRCP 30(d)(3)(A)." (Dkt. 153). The document stated that it was a "follow up to docket 150." (Id. at 1).
It is unclear whether Plaintiff's filing at Docket 153 is meant to serve as a motion for summary judgment, or whether this filing was made in further support of Plaintiff's earlier-filed summary judgment motion and/or motions for sanctions. To the extent Docket 153 is intended to serve as the latter, Plaintiff's motions for sanctions (Dkt. 127; Dkt. 131) were previously denied by the Magistrate Judge on February 1, 2021 (Dkt. 177), and his earlier-filed motion for summary judgment (Dkt. 118) was denied without prejudice by this Court on March 26, 2021 (Dkt. 195), and the filing was therefore already considered in connection with denial of those motions. However, to the extent Plaintiff intended Docket 153 to serve as a standalone motion for summary judgment, any such motion is denied because it is not a proper motion for summary judgment. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a). Rule 56 requires the movant to cite to particular materials in the record, such as depositions, documents, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials, showing that they do not establish a genuine dispute regarding the claims. See Fed. R. Civ. P. 56(c). Plaintiff's filing at Docket 153 consists merely of a list of his complaints about defense counsel, and does not address the claims in his second amended complaint. (See, e.g. , Dkt. 153 at 2-7 (accusing defense counsel of filing a false declaration and making untruthful statements)). Although the Court is cognizant that it is required to construe pro se filings liberally, there is simply no means by which the Court could construe Plaintiff's filing at Docket 153 as raising any arguments related to the merits of his claims in the second amended complaint. Bell v. Jendell , 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) ("the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law" (citation omitted)). Accordingly, Plaintiff's motion for summary judgment is denied.
III. Plaintiff's Motion for an Immediate Restraining Order
Plaintiff next moves for an immediate restraining order pursuant to Rule 65(b)(1)(A) of the Federal Rules of Civil Procedure, demanding "a precise and clear injunction on the New York State Attorney General Office's ability to harass, annoy and threaten him and his family[.]" (Dkt. 214 at 1). Plaintiff contends that defense counsel disregarded the Court's instructions not to utilize email to communicate with him, and defense counsel's use of email has harassed him and his family, including because defense counsel has sent emails around Plaintiff's dinnertime. (Id. at 1-4). On July 20, 2021, Plaintiff filed a further sworn affirmation for an immediate restraining order and for "summary judgment granted with enormous damages." (Dkt. 218). Defendant filed a declaration in response to Plaintiff's motion on July 28, 2021. (Dkt. 221). Defense counsel denies Plaintiff's allegations of misconduct and states that she has received emails from Plaintiff in the past, but she would "refrain from sending Plaintiff courtesy emails and do my best not to communicate via email in connection with this case going forward." (Id. at ¶¶ 5, 6, 8).
Rule 65(b) governs Temporary Restraining Orders ("TROs") and provides, in relevant part, that the court may issue a temporary restraining order, without written or oral notice to the adverse party or its attorney if "specific facts in an affidavit 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." Fed. R. Civ. P. 65(b)(1)(A). " ‘[A] temporary restraining order ... serves a purpose different from that of a preliminary injunction,’ in that ‘[t]he purpose of a temporary restraining order is to preserve an existing situation in status quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.’ " Martin v. Warren , 482 F. Supp. 3d 51, 67 (W.D.N.Y. 2020) (alterations in original) (quoting Garcia v. Yonkers Sch. Dist. , 561 F.3d 97, 107 (2d Cir. 2009) ).
Plaintiff's motion for an immediate restraining order is not the proper means for asking that the Court enforce its own discovery order against Defendant. Indeed, it is unclear to the Court what immediate or irreparable injury Plaintiff claims he has suffered, and maintaining the status quo would not provide Plaintiff with the relief he seeks. Rather, the more appropriate means for Plaintiff's obtaining relief is by a motion for sanctions pursuant to Rule 37, which governs failure to make disclosures or to cooperate in discovery. See Fed. R. Civ. P. 37 ; Burns v. Imagine Films Ent., Inc., 164 F.R.D. 594, 598 (W.D.N.Y. 1996) ("The district court may impose sanctions when ‘a party ... fails to obey an order to provide or permit discovery.’ " (quoting Fed. R. Civ. P. 37(b) ). For example, under Rule 37(b)(2)(A)(iv), the Court may stay proceedings until the order is obeyed. Considering Plaintiff's pro se status, the Court will consider Plaintiff's motion, including considering whether sanctions are warranted.
In support of his statement that the Court "banished" defense counsel from using email to communicate with Plaintiff, he cites to "Exhibit A" attached to his papers. (Dkt. 214 at 1 ("Exhibit A very clearly banishes [defense counsel] from using my private email server.")). However, Exhibit A is not an Order of the Court—rather, it is Plaintiff's own March 10, 2021 letter, submitted to the Clerk of Court and complaining that defense counsel emailed him the previous evening. (Id. at 6). Further, in support of his claims that defense counsel is harassing him and his family, he refers to Exhibit B and Exhibit C attached to his motion papers. (Id. at 2). The Court has reviewed all the correspondence between Plaintiff and defense counsel that Plaintiff has submitted in support of his motion, and none of his accusations regarding harassment are supported by the record. Rather, the communications provided by Plaintiff—which take the form of both communications sent via email and others sent via U.S. mail—are professional communications from defense counsel relating to discovery, including setting discovery deadlines, inquiring into the status of Plaintiff's discovery responses, and informing Plaintiff of a subpoena to be served on Rita M. Reisinger-Novisky. (See, e.g., id. at 7-8, 12-20). In other words, Plaintiff has not provided support for his conclusory assertions that defense counsel is harassing him, and his assertions are not otherwise supported by the record.
With regard to Plaintiff's assertion that the Court entered an order directing that defense counsel refrain from using email, upon review of the record, the Court notes that on October 7, 2020, at an appearance before the Magistrate Judge, he directed that "all communication between the parties moving forward will be through letter or filing." (Dkt. 144). While the Court appreciates defense counsel's assertion that the use of email allows for efficient communication, which at times is required when litigating a matter (see Dkt. 221 at ¶ 4; see also Dkt. 214 at 12), given the Magistrate Judge's directive on the mode of communication between the parties, as well as Plaintiff's expression that he does not want defense counsel sending him emails, defense counsel should refrain from utilizing email to contact Plaintiff. Given defense counsel's agreement that she will refrain from sending Plaintiff courtesy emails, Plaintiff's motion is denied as moot. However, Plaintiff is reminded that, as a result of his pro se status, he is required to communicate with both the Court and defense counsel to ensure an orderly and efficient disposition of his case, and defense counsel's attempts to communicate with him—at least those offered by Plaintiff and reviewed by the Court—do not qualify as "harassment."
IV. Filing Injunction
In connection with Plaintiff's motion for a restraining order—and indeed, in connection with other motions and filings he has made on the public docket—Plaintiff engages in unnecessary name-calling and ad hominem attacks. For example, in his motion for a restraining order, Plaintiff refers to defense counsel as a "lunatic," a "madwoman," a "sick person," a "lost soul," and a "psychopath." (Dkt. 214 at 4; Dkt. 218 at 2; Dkt. 212 at 4). Plaintiff has also made duplicative and frivolous filings. Plaintiff has made several motions for summary judgment and filings purporting to be motions for summary judgment, several of which are not properly filed (see, e.g. , Dkt. 98; Dkt. 118; Dkt. 153; Dkt. 218), and he has filed several motions for sanctions throughout the history of this case (see, e.g. , Dkt. 177 (addressing Plaintiff's motions for sanctions)). Further, following the Magistrate Judge's June 21, 2021 decision granting in part and denying in part Defendant's motion to dismiss, and directing Plaintiff to provide discovery responses by July 19, 2021 (Dkt. 203), Plaintiff filed several "responses" to the decision, which do not raise any substantive issues with regard to that decision, but rather purport to be "formal complaints" against the Magistrate Judge for allegedly violating this Court's orders regarding the disposition of dispositive motions. (Dkt. 204; see also Dkt. 205; Dkt. 206; Dkt. 212).
Turning first to Plaintiff's ad hominem attacks on defense counsel, such conduct will not be tolerated by any individual appearing before the Court. While the Court is cognizant that Plaintiff wants and is entitled to represent himself zealously, he is also subject to the rules of decorum of this Court. See Robinson v. Macy's Retail Holding, Inc. , No. 14 Civ. 4937 (CM), 2015 WL 10793114, at *1 (S.D.N.Y. Aug. 19, 2015) ("Pro se litigants are no less bound by the Federal Rules of Civil Procedure and this court's Local Rules than are represented litigants."). Plaintiff is hereby advised that any further filings that attack defense counsel personally will be stricken from the docket pursuant to Rule 11(b)(1) of the Federal Rules of Civil Procedure. Plaintiff is certainly entitled to challenge the legal and factual positions taken by Defendant, but he may not engage in the type of inflammatory name-calling of defense counsel that has littered his filings.
The Court next addresses Plaintiff's contention that the Magistrate Judge violated the Court's order regarding the disposition of dispositive motions. Plaintiff argues that the Magistrate Judge did not have authority to issue his June 21, 2021 decision on Defendants’ motion to dismiss (Dkt. 203) because (1) the referral order in this case does not permit the Magistrate Judge to issue decisions on dispositive motions, and (2) Plaintiff previously filed an appeal of the Magistrate Judge's February 1, 2021 decision denying the parties’ cross-motions for sanctions (Dkt. 177). (See Dkt. 204 at 1-3). Plaintiff raises these same issues in his subsequent filings. (Dkt. 205; Dkt. 206; Dkt. 212).
Plaintiff is correct that the referral order is "for all pretrial matters excluding dispositive motions." (Dkt. 89). However, the motion resolved by the Magistrate Judge's June 21, 2021 decision, although listed as a "motion to dismiss" on the docket, was a motion filed pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure and is based on Plaintiff's alleged discovery-related violations, with one of the possible sanctions being dismissal. (See Dkt. 193). As the motion is primarily related to discovery issues—which the Magistrate Judge has overseen in this case—the Magistrate Judge is permitted to rule on such a motion and, in the event he rules that dismissal is proper, to issue a Report and Recommendation directed to the undersigned recommending that the case be dismissed, which the undersigned could then accept, reject, or modify, in whole or in part. See Fed. R. Civ. P. 72(b) ; 28 U.S.C. § 636(b)(1). However, in deciding the motion at issue, the Magistrate Judge did not recommend dismissal of Plaintiff's case, and therefore he was not required to issue a Report and Recommendation. Accordingly, the Magistrate Judge properly issued his June 21, 2021 decision resolving Defendant's motion.
Plaintiff's latter argument—that the Magistrate Judge was not permitted to issue his June 21, 2021 decision because Plaintiff's appeal of a prior decision was pending—fares no better. On February 1, 2021, the Magistrate Judge issued a decision denying Plaintiff's motions for sanctions and denying Defendant's motion for sanctions, which was filed pursuant to Rule 11 of the Federal Rules of Civil Procedure. (Dkt. 177). The Magistrate Judge further directed Plaintiff to fully respond to Defendant's interrogatories and document demands, and to not delay or impede the deposition of Ms. Reisinger-Novisky. (Id. ). Plaintiff contends that he appealed that decision by way of a 231-page letter filed at Docket 187. (See Dkt. 204 at 1; see also Dkt. 187). While that filing states on the third page that it is a "Declaration in support of Summary Judgment, Appeal from Dkt. 177," it is not a properly-filed appeal. The letter does not address the merits of the Magistrate Judge's February 1, 2021 decision, but rather lists his complaints about his treatment by the Magistrate Judge. (See Dkt. 187 at 1-18). Further, Plaintiff's letter does not comply with the requirements of Local Rule of Civil Procedure 72, which requires the party filing objections to a non-dispositive matter to "clearly set out" the specific matters to which the party objects, and also to include with the objections a written statement either certifying that the objections do not raise new legal or factual arguments, or identify new arguments and explain why they were not raised before the magistrate judge. See L. R. Civ. P. 72(a) & (c). Plaintiff has not complied with either of these requirements.
Even if Plaintiff's appeal was properly filed, the Magistrate Judge was permitted to decide Defendant's later-filed motion for sanctions, which was filed not pursuant to Rule 11, but pursuant to Rules 37 and 41.
Given the aforementioned filings, the Court warns Plaintiff that, should he continue this course of conduct, he may be subject to a filing injunction. This Court has the power, pursuant to the All Writs Act, 28 U.S.C. § 1651, to issue an injunction limiting vexatious litigation. See In re Martin-Trigona , 737 F.2d 1254, 1262 (2d Cir. 1984) (a district court has "the power and the obligation to protect the public and the efficient administration of justice from [a vexatious litigant's] litigious propensities"). "[T]he traditional standards for injunctive relief, i.e. irreparable injury and inadequate remedy at law, do not apply to the issuance of an injunction against a vexatious litigant." Id. Instead, the Second Circuit Court of Appeals has enumerated five factors to be considered in restricting a litigant's access to the court system:
(1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.
Iwachiw v. N.Y.S. Dep't of Motor Vehicles , 396 F.3d 525, 528 (2d Cir. 2005) (quotation omitted).
As discussed above, Plaintiff has demonstrated a consistent pattern of making duplicative, voluminous, and meritless filings, which serve to harass defense counsel and/or raise frivolous issues. The Court hereby warns Plaintiff that he cannot continue to engage in these filing practices. Taking into account Plaintiff's pro se status and his lack of legal training, the Court will not issue a filing injunction at this time. However, Plaintiff is strongly cautioned that any further frivolous conduct on his part, including making multiple motions seeking the same relief, or submitting otherwise frivolous filings, may result in the entry of a filing injunction against him.
CONCLUSION
Accordingly, for the foregoing reasons, Plaintiff's motion for a bench trial (Dkt. 143), motion for summary judgment (Dkt. 153), motion to withdraw his jury trial demand (Dkt. 157), and motion for an immediate restraining order (Dkt. 214) are denied.
SO ORDERED.