Opinion
2:20-cv-01032-WKW-JTA (WO)
05-03-2023
BILL LIETZKE, Plaintiff, v. CITY OF MONTGOMERY, AL, and KEVIN MURPHY, Chief, Defendants.
RECOMMENDATION AND ORDER OF THE MAGISTRATE JUDGE AND ORDER TO SHOW CAUSE
JERUSHA T. ADAMS UNITED STATES MAGISTRATE JUDGE
Before the court is the Complaint(Doc. No. 1) filed by pro se Plaintiff Bill Lietzke. For the reasons stated below, the court recommends that the Complaint be dismissed without prejudice for failure to prosecute and failure to comply with court orders.
The Complaint in this case is substantially identical to the Complaint in Lietzke v. City of Montgomery, Case No. 2:20-cv-01029-RAH-JTA. On today, the Court is entering a Recommendation in Lietzke v. City of Montgomery, Case No. 2:20-cv-01029-RAH-JTA, recommending that case be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2(B)(i)-(ii) as frivolous, malicious, and for failure to state a claim upon which relief can be granted. The court has not undertaken § 1915(e)(2)(B) review in this case because Lietzke did not file a motion to proceed in forma pauperis in this case.
The undersigned also recommends that the court enter other sanctions similar to sanctions recommended in other casesto ensure that, in the future, Lietzke does not proceed in forma pauperis in this District on vexatiously repetitive complaints.
Today, the undersigned is recommending similar measures in the following cases: Lietzke v. County of Montgomery, Case No. 2:21-cv-00209-MHT-JTA; Lietzke v. Greyhound Lines, Inc., Case No. 2:21-cv-00208-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:21-cv-00207-ECM-JTA; Lietzke v. City of Birmingham, Case No. 2:21-cv-00206-ECM-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01033-MHT-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01032-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01031-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01030-ECM-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01029-RAH-JTA; and Lietzke v. County of Montgomery, Case No. 2:20-cv-01028-ECM-JTA.
I. STANDARD OF REVIEW
“A district court has inherent authority to manage its own docket ‘so as to achieve the orderly and expeditious disposition of cases.'” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Consistent with this authority, and also pursuant to Rule 41(b)of the Federal Rules of Civil Procedure, “the court may dismiss a plaintiff's action sua sponte for failure to prosecute or failure to comply with the Federal Rules of Civil Procedure or a court order.” Centurion Sys., LLC v. Bank of New York Melon, No. 8:21-CV-726-SDM-AAS, 2021 WL 7448071, at *1 (M.D. Fla. Aug. 12, 2021) (citing Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)), report and recommendation adopted sub nom. Centurion Sys., LLC v. Bank of New York Mellon, No. 8:21-CV-726-SDM-AAS, 2021 WL 7448080 (M.D. Fla. Aug. 27, 2021). “‘The power to invoke this sanction [of dismissal for failure to prosecute] is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the [d]istrict [c]ourt.'” Equity Lifestyle, 556 F.3d at 1240 (quoting Durham v. Fla. E. Coast Ry. Co., 385 F.2d 366, 367 (5th Cir. 1967)).
Though Rule 41(b) refers specifically to dismissal on a defendant's motion, “[a] federal district court has the inherent power to dismiss a case sua sponte under Federal Rule of Civil Procedure 41(b) if the plaintiff fails to comply with a court order.” Rodriguez v. Lawson, 848 Fed.Appx. 412, 413 (11th Cir. 2021) (citing Betty K Agencies, Ltd. v. M/VMONADA, 432 F.3d 1333, 1337-38 (11th Cir. 2005)).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
Whether to dismiss a complaint under Rule 41(b) “is a matter committed to the district court's discretion.” Id. at 1240 n.14 (citing Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999)). “The legal standard to be applied under Rule 41(b) is whether there is a ‘clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (quoting Jones, 709 F.2d at 1458).
II. JURISDICTION
This court has subject matter jurisdiction over this action based on federal question jurisdiction, 28 U.S.C. § 1331, as Lietzke appears to allege claims of constitutional violations under 42 U.S.C. § 1983. Lietzke also asserts state law claims over which the court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).
III. DISCUSSION
A. Lietzke's Currently Pending Litigation
Lietzke has a habit of filing cases here and around the country that arise out of the same acts or omissions and allege the same causes of action. For example, he has frequently filed complaints arising out of what appears to have been some instances of involuntary commitment for psychiatric treatment in August 1999 and again from December 2002 through early 2003.He has frequently filed complaints alleging that on April 20, 2018, he was unlawfully assaulted, falsely imprisoned, and unconstitutionally arrested at a Greyhound bus terminal in Birmingham, Alabama.He has frequently filed complaints involving instances in which police officers stopped and questioned him on suspicion of walking in and out of traffic, flagging down cars, walking in traffic lanes, walking in the middle of the street, walking along the interstate, and committing other legal and safety infractions as a pedestrian. See, e.g., Lietzke v. City of Montgomery, No. 16CV1296 WPL, 2016 WL 9818319, at *1 (D.N.M. Nov. 29, 2016). Serially filed cases involving Lietzke's brief interactions with police over pedestrian infractions most recently include three cases in which Lietzke asserts claims against the City of Montgomery and its Mayor, Steven Reed, because Montgomery police stopped him on July 6, 2020, to question him regarding complaints that he was flagging down cars, then simply ordered him to stay out of the street and not flag down cars.Another case Lietzke has commonly filed is one in which he alleges that, on January 30, 2018, the Montgomery police violated his constitutional rights and libeled and slandered him by stopping him to question him about reports from members of the First Baptist Church of Montgomery that he was following a woman on the church's property.Lietzke has also filed repetitive complaints arising out of other incidents, but those listed here cover serial filings that are currently pending and assigned to the undersigned.
See, e.g., Lietzke v. County of Montgomery, Case No. 2:21-cv-00209-MHT-JTA (originally filed in the United States District Court for the Western District of Texas); Lietzke v. County of Montgomery, Case No. 2:20-cv-01028-ECM-JTA (same); Lietzke v. County of Montgomery, Case No. 2:17-cv-00714-MHT-GMB (originally filed in the United States District Court of Maine); Lietzke v. County of Montgomery, Case No. 2:17-cv-00674-MHT-GMB (originally filed in the United States District Court for the Eastern District of Michigan); Lietzke v. County of Montgomery, Case No. 2:07-cv-00943-WKW-TFM (originally filed in the United States District Court for the Southern District of New York); Lietzke v. McKinney, Case No. 2:07-cv-00383-WKW-TFM; Lietzke v. Bright, Case No. 2:07-cv-00324-WHA-WC (originally filed in the United States District Court for the District of Maryland); see also, e.g., Lietzke v. County of Montgomery, et al., Case No. 3:13-cv-448-B-BK (N.D. Tex.); Lietzke v. County of Montgomery, No. 2:13-CV-01023-JCM, 2013 WL 6452318, at *1 (D. Nev. Dec. 9, 2013).
See, e.g., Lietzke v. Greyhound Lines, Inc., Case No. 2:21-cv-00208-WKW-JTA (originally filed in the United States District Court for the Western District of Texas); Lietzke v. City of Birmingham, Case No. 2:21-cv-00206-ECM-JTA (same); Lietzke v. City of Birmingham, Case No. 2:18-cv-00887-WKW-GMB (same); Lietzke v. Greyhound Lines, Inc., Case No. 2:18-cv-00488-MHT-GMB (originally filed in the United States District Court for the Middle District of Alabama); Lietzke v. City of Birmingham, Case No. 2:18-cv-00469-MHT-GMB (same); see also Lietzke v. Greyhound Lines, Inc., Case No. 2:20-cv-01968-RDP (N.D. Ala.) (originally filed in the Western District of Texas; dismissed with prejudice “[b]ased on Plaintiff's serial filings in this court and courts around the country” (Doc. No. 8)); Lietzke v. City of Birmingham, AL, et al., Case No. 2:20-cv-01967-MHH (N.D. Ala.) (originally filed in the Western District of Texas; dismissed without prejudice for failure to prosecute); Lietzke v. City of Birmingham, AL, et al., Case No. 2:20-cv-01966-MHH (N.D. Ala.) (originally filed in the Western District of Texas; dismissed as duplicative of another pending lawsuit); Lietzke v. Greyhound Lines, Inc., Case No. 2:20-cv-01965-RKK (N.D. Ala.) (originally filed in the Western District of Texas; dismissed with prejudice as barred by the statute of limitations and for failure to state a claim on grounds that § 1983 does not provide a cause of action against nonstate actors); Lietzke v. Greyhound Lines, Inc., Case No. 2:18-cv-01853-KOB (N.D. Ala.) (originally filed in the Eastern District of California; dismissed with prejudice as duplicative of another pending lawsuit); Lietzke v. City of Birmingham, et al., Case No. 2:18-cv-01729-MHH (N.D. Ala.) (originally filed in the Eastern District of California, then transferred to the Middle District of Alabama, Case No. 2:18-cv-00887, then transferred to the Northern District of Alabama; dismissed without prejudice for failure to prosecute); Lietzke v. Greyhound Lines, Inc., Case No. 2:18-cv-01650-VEH (N.D. Ala.) (originally filed in the Eastern District of California; dismissed without prejudice for failure to prosecute and pursuant to § 1915(e) for lack of jurisdiction and failure to state a claim upon which relief could be granted); Lietzke v. City of Birmingham, Case No. 2:18-cv-00796-RDP (N.D. Ala.) (originally filed in the Eastern District of Michigan; dismissed without prejudice for failure to prosecute).
Lietzke v. City of Montgomery, Case No. 2:21-cv-00207-ECM-JTA (originally filed in the United States District Court for the Western District of Texas); Lietzke v. City of Montgomery, Case No. 2:20-cv-01033-MHT-JTA (same); Lietzke v. City of Montgomery, Case No. 2:20-cv-01030-ECM-JTA (same).
Lietzke v. City of Montgomery, Case No. 2:20-cv-01032-WKW-JTA (originally filed in the Western District of Texas); Lietzke v. City of Montgomery, Case No. 2:20-cv-01029-RAH-JTA (same); Lietzke v. City of Montgomery, Case No. 2:18-cv-00395-MHT-GMB (originally filed in the Eastern District of Michigan).
Other complaints Lietzke has filed are practically identical to one another in their legal theories asserting constitutional and state law claims against police for brief interactions that fell short of arrest, but they allege that Lietzke was stopped and questioned by police on different occasions. For example, in the another currently-pending case, Lietzke alleges that, on September 30, 2020, police stopped him at his front door to ask questions about an alarm system that had been going off and to ask him what he was doing on the premises.
B. Lietzke's Past History of Repetitive, Frivolous Filings
In the December 9, 2020 Order transferring this case to this District from the Western District of Texas, United States Magistrate Judge Jeffrey C. Manske noted that “Bill Lietzke is perhaps one of the most notorious vexatious litigants ever to appear before this [Western District of Texas] Court” and that, for years, he has frequently filed frivolous lawsuits against Defendant City of Montgomery and its police officers. (Doc. No. 3 at 1 (citing example cases from the Middle District of Alabama, the District of Maine, the District of South Dakota, the District of New Mexico, the District of Nevada, and the District of Idaho).)
In this District, too, Lietzke is infamous for his vexatiously serial, frivolous filings. “Plaintiff Bill Lietzke is well known to this court, having continually filed frivolous lawsuits against the City of Montgomery, Alabama and its police officers for more than a decade.” Lietzke v. City of Montgomery, No. 2:17-CV-609-MHT-GMB, 2018 WL 4677837, at *1 (M.D. Ala. Aug. 8, 2018), report and recommendation adopted in part, rejected in part on other grounds, No. 2:17-CV-609-MHT-GMB, 2018 WL 4030696 (M.D. Ala. Aug. 23, 2018), judgment entered, No. 2:17-CV-609-MHT-GMB, 2018 WL 4030697 (M.D. Ala. Aug. 23, 2018). To date, he has filed thirty-eight cases in the Middle District of Alabama; of those that have ended in a final judgment in this District, nearly all have been dismissed pursuant to 28 U.S.C. § 1915(e) as frivolous or for failure to state a claim, though a small number were dismissed for failure to prosecute or comply with court orders. He usually seeks leave to file his cases in forma pauperis. “Lietzke has also filed many cases in other districts.” Id.
See Lietzke v. County of Montgomery, Case No. 2:21-cv-00209-MHT-JTA; Lietzke v. Greyhound Lines, Inc., Case No. 2:21-cv-00208-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:21-cv-00207-ECM-JTA; Lietzke v. City of Birmingham, Case No. 2:21-cv-00206-ECM-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01033-MHT-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01032-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01031-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01030-ECM-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01029-RAH-JTA; Lietzke v. County of Montgomery, Case No. 2:20-cv-01028-ECM-JTA; Lietzke v. City of Birmingham, Case No. 2:18-cv-00887-WKW-GMB; Lietzke v. City of Montgomery, Case No. 2:18-cv-00858-MHT-GMB; Lietzke v. Greyhound Lines, Inc., Case No. 2:18-cv-00488-MHT-GMB; Lietzke v. City of Birmingham, Case No. 2:18-cv-00469-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:18-cv-00395-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:18-cv-00027-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:18-cv-00012-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:17-cv-00812-MHT-GMB; Lietzke v. County of Montgomery, Case No. 2:17-cv-00714-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:17-cv-00713-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:17-cv-00712-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:17-cv-00711-MHT-GMB; Lietzke v. County of Montgomery, Case No. 2:17-cv-00674-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:17-cv-00628-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:17-cv-00626-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:17-cv-00614-MHT-GMB; Lietzke v. City of Montgomery, Case No. 2:17-cv-00609-MHT-GMB; Lietzke v. City of arising out of Lietzke's involuntary commitments in 1999 and 2002, then-United States Montgomery, Case No. 2:16-cv-00950-WKW-TFM; Lietzke v. City of Montgomery, Case No. 2:16-cv-00949-WKW-TFM; Lietzke v. City of Montgomery, Case No. 2:13-cv-00849-MHT-CSC; Lietzke v. County of Montgomery, Case No. 2:07-cv-00943-WKW-TFM; Lietzke v. City of Montgomery, Case No. 2:07-cv-00932-WKW-WC; Lietzke v. County of Montgomery, Alabama, Case No. 2:07-cv-00814-MHT-WC; Lietzke v. City of Montgomery, Case No. 2:07-cv-00588-ID-WC; Lietzke v. McKinney, Case No. 2:07-cv-00383-WKW-TFM; Lietzke v. Bright, Case No. 2:07-cv-00324-WHA-WC; Lietzke v. City of Montgomery, Case No. 2:03-cv-00584-MEF-CSC; Lietzke v. Winn Dixie, Inc., Case No. 2:97-cv-01752-WHA-CSC.
In 2007, while addressing the second of what would become many iterations of Lietzke's complaints arising out of his involuntary commitments in 1999 and from 2002 03, the court stated:
The undersigned [United States Magistrate Judge Wallace Capel, Jr.] ... observes that Lietzke repeatedly files meritless Complaints in this Court.. While the Court recognizes that Lietzke is a pro se litigant, the Court is concerned that Lietzke's repeated filings constitute an abuse of process, which could warrant sanctions.Lietzke v. County of Montgomery, et al., Case No. 2:07-cv-00814-WKW-WC, October 10, 2007 Report and Recommendation of the Magistrate Judge (Doc. No. 5 at 5 n.3), report and recommendation adopted, November 9, 2007 Order (Doc. No. 6).
In February 2008, the third time this court dealt with a complaint alleging claims Magistrate Judge Terry F. Moorerreiterated Judge Capel's concerns about abuse of process and further stated:
In 2008, Judge Moorer was a United States Magistrate Judge in this District. He is now a United States District Judge in the United States District Court for the Southern District of Alabama.
Apparently undeterred by the notice [Judge Capel] provided regarding the limited jurisdiction of federal courts, the glaring deficiencies of his lawsuit, and penalties for abusing the privilege of proceeding without paying filing fees and costs, Lietzke filed this and one other action in October of 2007.
Lietzke is advised, as this court has consistently reminded similarly situated pro se litigants, the privilege of filing a federal court lawsuit without prepayment of filing fees properly acknowledges a “right of access to courts” which is constitutionally secured for all American citizens. The privilege is subject, however, to valid and reasonable limitations designed not only to conserve limited judicial resources, but also to prevent abuse by unlearned laymen who may be tempted to seize the privilege as a license for limitless or misguided forays into federal court with bootless claims and grievances unresolved in other forums or for which there simply is no remedy. Frivolous or malicious lawsuits against any defendants - corporate, public, institutional, or individual - automatically result in inconveniences, burdens, and costs, associated with defense even to the extent of securing dismissal from the action.
This court also deems it appropriate now to advise Lietzke that pro se litigants are also bound to honor Rule 11 of the Federal Rules of Civil Procedure, which provides in pertinent part at Rule 11(b):
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying
that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
A plaintiff may incur a substantial penalty for non-compliance with this rule by filing a federal court lawsuit without first conducting “an inquiry reasonable under the circumstances” in order to inform his “knowledge, information, and belief” about the merits of the lawsuit. Rule 11(c)(2) provides:
A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.Lietzke v. County of Montgomery, et al., Case No. 2:07-cv-00943-WKW-TFM, February 15, 2008 Report and Recommendation of the Magistrate Judge (Doc. No. 7 at 11-13), report and recommendation adopted in part, rejected in part on other grounds, March 3, 2008 Order (Doc. No. 8).
See Lietzke v. City of Montgomery, et al., Civil Action No. 2:07-cv-932-WKW, a case in which Lietzke claimed that police violated his constitutional rights on several occasions from 2005 through 2007 when they allegedly arrested him, briefly stopped him, spoke harshly to him, or merely asked him questions from the window of a patrol car, including occasions in which he was reported to have been flagging down cars, walking and running in the middle of the street, and trying to stop cars.
Since 2008, Rule 11 has been amended, but Lietzke is advised that Rule 11 remains the same in substance and he is bound to abide by it.
In May 2008, United States District Judge William Keith Watkins noted Lietzke's status as “a frequent filer” in this District and “around the country” and dismissed certain of Lietzke's claims with prejudice “[b]ecause Lietzke continues to file these claims in courts around the country despite the determination that they are frivolous.” Lietzke v. City of Montgomery, et al., Case No. 2:07-cv-00932-WKW-WC, May 16, 2008 Order (Doc. No. 6 at 6-8, 16).
In 2013, faced with a complaint of Lietzke's asserting substantially the same claims as before arising out of involuntary commitments in 1999 and 2002, Judge Renee Harris Toliver, a United States Magistrate Judge in the Northern District of Texas, recommended denial of Lietzke's motion to proceed in forma pauperis, summary dismissal, and imposition of sanctions, stating:
Plaintiff, an Alabama resident, filed a pro se civil rights complaint against Montgomery County, Alabama, and Alabama residents Reese McKinney, D. T. Marshall, and an unidentified Sheriff Officer, along with a motion to proceed in forma pauperis. For the reasons that follow, it is recommended that this action be summarily dismissed.
I. BACKGROUND
Plaintiff asserts that in 1999 and 2002, Defendants seized him from his home and involuntarily confined him in a psychiatrist hospital following various hearings in probate court. (Doc. 3 at 2-7). He seeks monetary damages for false imprisonment, malicious prosecution, harassment, and kidnapping -claims that Plaintiff has unsuccessfully litigated in at least three other actions. See Lietzke v. County of Montgomery, No. 2:07-CV-943 (M.D. Alabama Mar. 3, 2008) (accepting recommendation and dismissing case as frivolous because it was barred by res judicata, statute of limitations, and absolute immunity). See also Lietzke v. County of Montgomery, et al., No. 1:12-CV-00145, 2012 WL 5449623 (D. Idaho May 29, 2012), accepting recommendation, 2012 WL 5449617 (D. Idaho Nov. 5, 2012) (dismissing as frivolous because jurisdiction and venue were lacking); Lietzke v. County of Montgomery, et al.,
No. 2:12-CV- 00268, 2013 WL 1033037 (D. Utah Feb. 21, 2013), accepting recommendation, 2013 WL 1031725 (D. Utah Mar. 14, 2013) (same).
Over the past ten years, Plaintiff has filed more than twenty cases in federal courts nationwide against these and other Alabama residents complaining of related civil rights violations. See Public Access to Courts Electronic Records (PACER) for a full listing of Plaintiff's cases. A random sampling indicates that the vast majority of these lawsuits were dismissed as frivolous and/or for failure to state a claim. At least one court has restricted Plaintiff from filing new lawsuits. See Lietzke v. City of Montgomery, et al., No. 3:06-CV-1804 (D. Or. Mar. 19, 2007) (imposing pre-filing requirement which requires that all pleadings be “reviewed by this Court and ordered filed only if such filings are deemed not frivolous or repetitive[”).]
II. ANALYSIS
Federal courts have the authority to levy sanctions against pro se litigants and attorneys who violate Rule 11(b), of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 11(b) and (c)(1); Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 802-03 (5th Cir. 2003) (a violation of any provision of Rule 11(b) justifies sanctions). Sanctions may be appropriate when a pro se litigant has a history of submitting multiple frivolous claims. Mendoza v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993). Litigants who abuse the judicial process are “not entitled to sue and appeal without paying the normal filing fees -- indeed, are not entitled to sue and appeal, period.” Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989).
Here, Plaintiff's allegations duplicate the claims that he has pursued unsuccessfully in the Middle District of Alabama and in the Districts of Idaho and Utah. Thus, his complaint is frivolous. See Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (a complaint is frivolous when it “duplicates allegations of another pending federal lawsuit by the same plaintiff”). In light of the duplicative nature of the complaint and Plaintiff's lengthy and notorious history of filing repetitive, frivolous lawsuits, his request to proceed in forma pauperis should be denied and sanctions should be imposed. See FED. R. CIV. P. 11(b)(2) and (c)(1); Canzoneri v. McCormick, No. 3:12-CV-1241-G-BK, 2012 WL 1864309 (N.D. Tex. Apr. 26, 2012), recommendation accepted, 2012 WL 1864282 (N.D. Tex. May 22, 2012) (denying in forma pauperis motion and imposing sanctions because of plaintiff's history of filing frivolous, repetitive lawsuits).
III. RECOMMENDATION
For the foregoing reasons, it is recommended that Plaintiff's motion to proceed in forma pauperis be DENIED, and that Plaintiff be BARRED from filing future in forma pauperis actions in this Court without first seeking leave to file. It is further recommended that Plaintiff be WARNED that the continued submission of frivolous actions and documents may result in the imposition of additional sanctions, including monetary penalties.Lietzke v. County of Montgomery, et al., Case No. 2:13-cv-04468-B-BK (N.D. Tex.), November 12, 2013 Report and Recommendation of the Magistrate Judge (Doc. No. 6 at 1-4 (footnote omitted)), report and recommendation adopted, March 3, 2008 Order (Doc. No. 8) (adopting the recommendation in parts and ordering that “Plaintiff is BARRED from filing future in forma pauperis actions in this Court without first seeking leave to file. In addition, Plaintiff is WARNED that the continued submission of frivolous actions and documents may result in the imposition of additional sanctions, including monetary penalties.”).
In August 2018, United States Magistrate Judge Gray M. Borden observed in a Report and Recommendation entered in fifteen different cases Lietzke had filed, nearly all of which were or would eventually become redundant filings:
Put simply, Lietzke's modus operandi is to engage in a pattern of filing frivolous lawsuits both in this and other federal district courts throughout the country in flagrant violation of appropriate judicial process and procedure. Most recently, a district court in Nevada observed that Lietzke had filed eight cases in that district with identical allegations against Alabama defendants, noting that “[d]espite repeated warnings against filing frivolous lawsuits, [Lietzke] continues to abuse the judicial process.” Lietzke v. City of Montgomery, 2018 WL 702889, at *1 (D. Nev. Feb. 2, 2018). That court thus declared Lietzke a vexatious litigant pursuant to 28 U.S.C. § 1651 enjoining him from filing any new lawsuits in that district without first obtaining leave
from the court's Chief Judge. See id. Lietzke's 15 pending complaints stating nearly identical factual allegations reflect his scattershot approach to seeking relief in federal court based on claims that are not remotely actionable. This court ought not entertain his continued abuse of the judicial process and recommends the dismissal of all of his pending federal claims.Lietzke v. Greyhound Lines, Inc., Case No. 2:18-cv-00488-MHT-GMB, August 8, 2018 Report and Recommendation of the Magistrate Judge (Doc. No. 4 at 20-21 (footnote omitted)), report and recommendation adopted in part, rejected in part on other grounds, August 23, 2018 Order (Doc. No. 7).
In 2020, United States District Judge R. David Proctor dismissed another repeat complaint against Greyhound Lines not only as barred by res judicata, but as frivolous and malicious “[b]ased on Plaintiff's serial filings in this court and courts around the country.” Lietzke v. Greyhound Lines, Inc., Case No. 2:20-cv-01968-RDP (N.D. Ala.) (Doc. No. 8).
On May 19, 2019, after detailing Lietzke's history in the District of Montana of repeated serial filings made without any effort to correct deficiencies noted in previous dismissals, Chief United States District Judge Dana L. Christensen of the District of Montana wrote: “Enough is enough. Lietzke's filings in this Court demonstrate, at best, indifference to the law. He is not acting in good faith.” Lietzke v. City of Birmingham, et al., Case No. 9:19-cv-61-M-DLC (D. Mont.), April 19, 2019 Order (Doc. No. 3 at 3). After ordering Lietzke to show cause why he should not be declared a vexatious litigant subject to a prefiling review process, Judge Christensen declared him a vexatious litigant, summarily dismissed five frivolous complaints Lietzke had filed, and imposed preconditions on Lietzke's ability to file cases in the District of Montana. Lietzke v. City of Birmingham, et al., Case No. 9:19-cv-61-M-DLC (D. Mont.), May 10, 2019 Order (Doc. No. 5).
In December 2020, in a case Lietzke filed against Defendant Greyhound Lines arising out of the April 20, 2018 incident at the Birmingham, Alabama, Greyhound bus terminal, United States District Judge Abdul K. Kallon observed:
Lietzke is apparently a prolific litigant. As Judge Manske of the Western District of Texas pointed out when he transferred this case to this court: “Bill Lietzke is perhaps one of the most notorious vexatious litigants to ever appear before this Court. Li[e]tzke has continually filed frivolous lawsuits against the City of Montgomery, Alabama, and its police officers for more than a decade. Lietzke has filed similar cases in districts across the country.” Doc. 3 at 1-2 (quotation and citation omitted).Lietzke v. Greyhound Lines, Inc., Case No. 2:20-cv-01965-RKK, Dec.14, 2020 Order (Doc. No. 5 at 2 n.1) (N.D. Ala. Dec. 14, 2020).
C. Consequences for Serial Frivolous Filings
This court previously dismissed a case substantially identical to this one after explaining the legal and pleading deficiencies in Lietzke's Complaint. Lietzke v. City of Montgomery, et al., Case No. 2:18-cv-395-MHT-GMB. Nevertheless, Lietzke filed nearly the same Complaint again two more times(including in this case) without making any effort to address the deficiencies that were previously pointed out to him. The Complaint in this case and the Complaint in the currently-pending case of Lietzke v. City of Montgomery, et al., Case No. 2:20-cv-01029-RAH-JTA, are essentially identical, involve the same Defendants, arise out of the same misconduct, are worded identically or almost identically, and contain the same request for relief in the form of an apocalyptic judgment concerning a pale horse, the Book of Life, and a Lake of Fire.
See Lietzke v. City of Montgomery, et al., Case No. 2:20-cv-01029-RAH-JTA; Lietzke v. City of Montgomery et al., Case No. 2:18-cv-00395-MHT-GMB. The court is aware of only three such complaints. Given Lietzke's track record, there may well be more, but, in the interest of judicial economy, the court has not conducted a thorough review of the records of every court in the country to discover if more exist.
In the interest of judicial economy, the undersigned does not at this time recommend that the Complaint in this case alternatively be dismissed on grounds that it exclusively seeks relief beyond the powers of this court to grant - namely, an order requiring God to initiate the apocalypse and impose divine retribution on Defendants from the Great White Throne of Judgment by casting them into the Lake of Fire after judging them based on what is written about them in the Book of Life. Such relief is within the exclusive discretion of the divine whether to impose. It is doubtful that God is subject to this court's personal jurisdiction, much less to an order of mandamus, and the United States District Court for the Middle District of Alabama is not so presumptuous as to usurp The Great White Throne of Judgment. Cf. U.S. ex rel. Mayo v. Satan & his Staff, 54 F.R.D. 282, 283 (W.D. Pa. 1971) (denying a motion to proceed in forma pauperis after questioning the existence of personal jurisdiction over Defendants Satan and His Staff, and further noting the practical difficulties inherent in serving the defendants). Further, in civil actions, relief is ordinarily limited to compensatory and injunctive measures, and any punitive relief generally takes the form of a monetary judgment rather than confinement. Even in cases of civil contempt, extended confinement beyond eighteen months (such as eternal confinement to a flaming body of water) is strictly prohibited. 28 U.S.C. § 1826(a). In any event, the Book of Life is not included in the court's law library or available through online legal research resources, and the court is unable to obtain the original or a certified copy of it at this time. If ever the Book of Life will be opened, its contents revealed, and sinners dispatched accordingly by swift, merciless judgment from God's angry hands into the Lake of Fire, it will be done on a divine schedule not set by this court.
Despite many warnings and consequences from this and other courts, Lietzke has continued to serially file substantially the same lawsuits again and again here and in courts all across the country. Something must be done. Lietzke's vexatiously repetitive complaints are not harmless. “Every lawsuit filed, no matter how frivolous or repetitious, requires the investment of court time, whether the complaint is reviewed initially by a law clerk, a staff attorney, a magistrate [judge], or the [district] judge.” Procup v. Strickland, 792 F.2d 1069, 1072 (11th Cir. 1986). Though Lietzke's complaints are invariably dismissed prior to service of process, they repeatedly waste scarce judicial resources by requiring the court to address the same deficiencies again and again and again. At times, the court unnecessarily duplicates the work of other courts because it is unawarethat some other court has already addressed the deficiencies in the same complaint. Even as this Order is being drafted, judicial resources are being once again diverted from pressing matters to address ten casesfiled by Lietzke. See Thomason v. Deutsche Bank, Tr. for Home Equity Mortg. Loan Asset-Backed Tr. Series INABA 2006-A, Home Equity Mortg. Loan Asset-Backed Certificates Series INABS 2006-A8, No. 2:22-CV-52-ECM, 2022 WL 4371492, at *8 (M.D. Ala. Sept. 21, 2022) (declaring that the plaintiff was “an abusive and vexatious litigant” because he “wasted valuable Court resources” by “fil[ing] the same or substantially the same” claims against the same defendant despite “being repeatedly told by this Court (and probably others) that his claims ... are without merit”).
Lietzke habitually omits from his filings any information related to previous dismissals or concurrent litigation of the same matters, and each time he files a complaint in this District, the court simply does not have the resources to review the records of every other federal and state court in the country to determine whether he has previously pursued or is currently pursuing the same case elsewhere.
Today, the undersigned is entering recommendations or orders in the following cases: Lietzke v. County of Montgomery, Case No. 2:21-cv-00209-MHT-JTA; Lietzke v. Greyhound Lines, Inc., Case No. 2:21-cv-00208-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:21-cv-00207-ECM-JTA; Lietzke v. City of Birmingham, Case No. 2:21-cv-00206-ECM-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01033-MHT-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01032-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01031-WKW-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01030-ECM-JTA; Lietzke v. City of Montgomery, Case No. 2:20-cv-01029-RAH-JTA; and Lietzke v. County of Montgomery, Case No. 2:20-cv-01028-ECM-JTA.
In light of the previous warnings by this court and others, Lietzke's repetitive filings in this court and elsewhere are not merely careless mistakes. Lietzke has been told that he violates Rule 11(b) of the Federal Rules of Civil Procedure by repeatedly filing complaints that he knows are frivolous and that fail to state a claim upon which relief can be granted. Further, as Judge Capel warned Lietzke years ago, refiling the same complaint when he knows the claims within it are without merit constitutes vexatious abuse of process warranting appropriate sanctions. “‘[F]ederal 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.'” Shell v. U.S. Dep't Of Hous. And Urb. Dev., 355 Fed.Appx. 300, 308 (11th Cir. 2009) (quoting Martin-Trigona v. Shaw, 986 F.2d 1384, 1386-87 (11th Cir. 1993)). Courts may sanction such conduct, and they also have considerable discretion in crafting injunctions to protect against abusive and vexatious litigation, so long as the plaintiff is not completely closed off from any access to the court. Id.; Thomason, 2022 WL 4371492, at *8 (M.D. Ala. Sept. 21, 2022); see also Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017) (noting the court's inherent authority “to fashion an appropriate [compensatory] sanction for conduct which abuses the judicial process'” (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991)).
On the basis of the court's inherent power and obligation to protect litigants and its own judicial resources from vexatious and abusive litigation, in light of Lietzke's practice of serially filing cases without informing this court of identical past or concurrent litigation, and to deter Lietzke from impairing the court's function in the future by filing vexatious and repetitive complaints, the undersigned has considered carefully what injunctive consequences to recommend. The undersigned concludes that the following consequences suffice to deter future comparable conduct, enable the court to efficiently evaluate whether a case is frivolously or vexatiously duplicative of other litigation here or elsewhere, do not completely foreclose Lietzke from filing actions in this court, and avoid unduly burdening the court with extra prefiling review processes for handling vexatious litigants:
1. The undersigned recommends that the court enter an Order prohibiting Lietzke from proceeding in forma pauperis in this District against these Defendants on any complaint arising out of the January 30, 2018 incident in which police questioned him about reports that he had been following a woman at the First Baptist Church in Montgomery, Alabama.
2. The undersigned also recommends that Lietzke be declared a vexatious litigant because, despite many warnings and consequences, he repeatedly files the same cases here and elsewhere when he knows his complaints are frivolous and fail to state a claim upon which relief can be granted. See Thomason, 2022 WL 4371492, at *8 (declaring that the plaintiff was “an abusive and vexatious litigant” because he “wasted valuable Court resources” by “fil[ing] the same or substantially the same” claims against the same defendant despite “being repeatedly told by this Court (and probably others) that his claims ... are without merit”).
3. Further, the undersigned recommends that the court order that Lietzke shall not file in this District any more motions to proceed in forma pauperis without an
accompanying notarized affidavit, sworn under penalty of perjury, in which he states whether he has ever filed any lawsuits in any court arising out of the same incident(s), acts(s), or occurrence(s) as are implicated in the complaint on which he seeks to proceed in forma pauperis. If he has filed any related lawsuits, he must include in his signed, notarized affidavit the name of the court(s) where each such lawsuit was filed, the case number of the related case(s), and the status of the related litigation. He must also attach to his sworn, notarized affidavit (1) a current copy of the docket sheet for each such case and (2) a copy of each and every complaint that he has filed in any such case. Any such attached copy of a complaint shall bear the dated “filed” stamp of the Clerk of the Court in which it was filed, or it shall bear the mark of the CM/ECF (PACER) system showing that it is a copy of the complaint that is in the official court record. Failure to follow these instructions shall result in denial of the motion to proceed in forma pauperis and may result in dismissal of the case with or without prejudice for failure to comply with the court's orders. See Procup, 792 F.2d at 1072 (11th Cir. 1986) (listing approaches courts have used to address litigants who bring frequent or repetitive claims, including “requiring litigants to accompany all future pleadings with affidavits certifying that the claims being raised are novel, subject to contempt for false swearing” and “direct[ing] the litigant to attach to future complaints a list of all cases previously filed involving the same, similar, or related cause of action, and to send an extra copy of each pleading filed to the law clerk of the chief judge of the district”).
Lietzke is ADVISED that, whether or not the court adopts the recommendation in the preceding paragraph, in any case pending before the undersigned, the undersigned will require Lietzke to comply with the preceding paragraph before the undersigned grants any more applications to proceed in forma pauperis and before the undersigned undertakes the review process required by 28 U.S.C. § 1915(e)(2)(b).
Further, Lietzke is ADVISED that he will be subject to sanctions or further injunctive action in the future for filing a complaint that has been dismissed with prejudice as frivolous and for failure to state a claim upon which relief can be granted, or for filing a complaint that has been dismissed without prejudice on the same grounds without making any meaningful attempt to amend the complaint to address the deficiencies. Sanctions for such conduct may include, but are not limited to, dismissal of his case with or without prejudice, payment of attorneys' fees in the event that another party incurs them, other monetary sanctions, or limitations on his ability to file suit in this court without preapproval. Such sanctions may be imposed pursuant to Rule 11 of the Federal Rules of Civil Procedure, this court's inherent authority to manage its own docket “so as to achieve the orderly and expeditious disposition of cases” and compliance with its orders, Chambers, 501 U.S. at 43, the court's inherent authority to impose a compensatory sanction on conduct that abuses the judicial process, Rule 41(b)of the Federal Rules of Civil Procedure, and 28 U.S.C. § 1651.
Though Rule 41(b) refers specifically to dismissal on a defendant's motion, “[a] federal district court has the inherent power to dismiss a case sua sponte under Federal Rule of Civil Procedure 41(b) if the plaintiff fails to comply with a court order.” Rodriguez v. Lawson, 848 Fed.Appx. 412, 413 (11th Cir. 2021) (citing Betty K Agencies, Ltd. v. M/VMONADA, 432 F.3d 1333, 1337-38 (11th Cir. 2005)).
D. Failure to Prosecute and Failure to Comply with Court Orders
Lietzke filed this case on November 6, 2020, in the United States District Court for the Western District of Texas. (Doc. No 1.) He did not pay a filing fee. He did not file a motion for leave to proceed in forma pauperis. Therefore, on December 18, 2020, the court entered the following Order:
On December 9, 2020, this case was transferred from the Western District of Texas to the Middle District of Alabama. (Doc. No. 3.) Thereafter, this case was referred to the undersigned Magistrate Judge for further proceedings and determination or recommendation. (Doc. No. 5.) After a review of this matter, the court has determined that the plaintiff has not filed a motion for leave to proceed in forma pauperis in this action nor paid the filing fee. Accordingly, it is
ORDERED that on or before January 6, 2021, plaintiff shall pay the civil action filing fee to the Clerk of Court or file a motion to proceed in forma pauperis.
The plaintiff is ADVISED that failure to comply with this order will result in a recommendation by the undersigned to dismiss this case.(Doc. No. 6.)
The court finds a clear record of willful contempt and of intransigence in failure to prosecute and failure to comply with court orders. Lietzke knows how to file a motion for leave to proceed in forma pauperis in this court. In almost two and a half years, he has not attempted to do so. He has utterly disappeared from this case. Lietzke knows he must comply with court orders, but in more than two years he has not complied with the December 18, 2020 Order. In addition, Lietzke filed this case in violation of previous court orders. He has been instructed not to file duplicative litigation or complaints that he knows are meritless; as explained in Section III.B., courts (including many judges in this court) have frequently told him to stop it and have warned him on numerous occasions that filing frivolous, duplicative litigation constitutes a violation of Rule 11 and unnecessarily taxes the court's judicial resources. In 2018, United States District Judge Myron H. Thompson dismissed an almost identical complaint without prejudice pursuant to § 1915(e)(2)(B) after United States Magistrate Judge Gray M. Borden explained the pleading and substantive legal deficiencies.Yet, despite previous warnings about serially filing meritless complaints, Lietzke has now (at least) twice refiled substantially the same case without making any meaningful effort to address the previously-pointed-out deficiencies.
See Lietzke v. City of Montgomery et al., Case No. 2:18-cv-00395-MHT-GMB (Doc. No. 13) (adopting the relevant portion of the Report and Recommendation of the Magistrate Judge and dismissing an almost identical complaint).
Lietzke was warned that failure to comply with the court's order to pay a filing fee or file a motion to proceed in forma pauperis “will result in a recommendation by the undersigned to dismiss this case.”(Doc. No. 6.) This is that recommendation. The court recommends dismissal without prejudice for failure to prosecute and failure to comply with the court's orders. See Castro v. Director, F.D.I.C., 449 Fed.Appx. 786, 788 (11th Cir. 2011) (determining it was not an abuse of discretion to dismiss the plaintiff's complaint without prejudice under the court's Local Rule requiring payment of a filing fee or motion to proceed IFP); Rodriguez v. Lawson, 848 Fed.Appx. 412 (11th Cir. 2021) (affirming dismissal without prejudice for failure to comply with orders of the court after “warned that failure to comply with the court's orders could result in the dismissal of his complaint”).
To the extent that notice of sanctions for failure to prosecute and comply with court orders is required, the court's December 18, 2020 Order and this Recommendation serve to place him on notice. Because he will have an opportunity to object to this Recommendation, he will have an opportunity to object to imposition of the sanction of dismissal without prejudice prior to its imposition. Moreover, dismissal without prejudice poses no prejudice to Lietzke. Even if the statute of limitations has run on his claims, Lietzke will not be disadvantaged by the dismissal of this case without prejudice because he still has a concurrently pending case that is being addressed on the merits.
IV. CONCLUSION
Accordingly, it is ORDERED that, on or before May 17, 2023, Lietzke shall SHOW CAUSE why he should not be sanctioned for violating Rule 11(b)(1)-(3) of the Federal Rules of Civil Procedure by repetitively filing the same case arising out of police briefly stopping him to investigate reports that he was following a woman at First Baptist Church, knowing that his claims have previously been dismissed without prejudice as frivolous and meritless, yet making no meaningful effort to address the deficiencies in the Complaint before refiling it. Failure to comply with this Order may result in imposition of sanctions.
Lietzke v. City of Montgomery, et al., Case No. 18-cv-395-MHT-GMB.
Lietzke is WARNED that failure to fully and timely comply with this Order may result in denial of the motion to proceed in forma pauperis, may result in dismissal of this case with or without prejudice for failure to comply with the court's orders or for failure to prosecute, and may result in other sanctions, including monetary sanctions.
Further, it is the RECOMMENDATION OF THE MAGISTRATE JUDGE that:
1. This case be dismissed without prejudice for failure to prosecute and, alternatively, for failure to comply with court orders.
2. The court declare Lietzke a vexatious litigant.
3. The court prohibit Lietzke from proceeding in forma pauperis in this District against these Defendants on any complaint arising out of the January 30, 2018 incident in which police questioned him about reports that he had been following a woman at the First Baptist Church in Montgomery, Alabama.
4. As a consequence of Lietzke's status as vexatious litigant, the court require that any future in forma pauperis motions Lietzke files in this District shall be accompanied by a notarized affidavit, sworn under penalty of perjury, in which he states whether he has ever filed any lawsuits in any court arising out of the same incident(s), acts(s), or occurrence(s) as are implicated in the complaint on which he seeks to proceed in forma pauperis. If he has filed any related lawsuits, he must include in his signed, notarized affidavit the name of the court(s) where each such lawsuit was filed, the case number of the related case(s), and the status of the related litigation. He must also attach to his sworn, notarized affidavit (1)
a current copy of the docket sheet for each such case and (2) a copy of each and every complaint that he has filed in any such case. Any such attached copy of a complaint shall bear the dated “filed” stamp of the Clerk of the Court in which it was filed, or it shall bear the mark of the CM/ECF (PACER) system showing that it is a copy of the complaint that is in the official court record. Failure to follow these instructions shall result in denial of the motion to proceed in forma pauperis and may result in dismissal of the case with or without prejudice for failure to comply with the court's orders.
It is further ORDERED that on or before May 17, 2023, Plaintiff may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which Plaintiff objects. Frivolous, conclusory, or general objections will not be considered by the District Court. Plaintiff is advised that this Recommendation is not a final order of the Court; therefore, it is not appealable.
Failure to file written objections to the proposed findings and legal conclusions in the Recommendations of the Magistrate Judge shall bar a party from a de novo determination by the District Court of these factual findings and legal conclusions and shall “waive the right to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions” except upon grounds of plain error if necessary in the interests of justice. 11TH Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993) (“When the magistrate provides such notice and a party still fails to object to the findings of fact and those findings are adopted by the district court the party may not challenge them on appeal in the absence of plain error or manifest injustice.”); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).