Opinion
Case No. 1:10-cv-082.
November 24, 2010
ORDER ADOPTING REPORT AND RECOMMENDATION
Summary:
The Plaintiff submitted a PLRA packet and Magistrate Judge Miller issued a Report and Recommendation in which he recommended that the Court not authorize the filing of the Plaintiff's proposedcomplaint pursuant to the "three strikes rule." The undersigned is a named defendant, but found that the "Rule of Necessity" applies. The Court adopted the Report and Recommendation, finding that the Plaintiff asserts the same allegations in his current filings as he has in numerous previous filings and that the Plaintiff has not submitted any relevant evidence that he is under imminent danger of serious physical injury. On October 27, 2010, the plaintiff, Anthony Moore, submitted a PLRA packet that contained a proposed complaint and an application to proceed in forma pauperis. See Docket No. 1-2. On November 10, 2010, Magistrate Judge Charles S. Miller, Jr. issued a Report and Recommendation in which he recommended that the Court not authorize the filing of Moore's proposed complaint. See Docket No. 1. The parties were given fourteen (14) days to file objections to the Report and Recommendation. Moore filed an objection on November 17, 2010. See Docket No. 2.In his Report and Recommendation, Judge Miller points to an order issued by Judge Charles B. Kornmann in Case No. 3:09-cv-113. On January 26, 2010, Judge Kornmann dismissed that action pursuant to the "three strikes rule" under 28 U.S.C. § 1915(g) and ordered in part:
2) Anthony Moore shall not file or attempt to file any lawsuit in the Districts of North Dakota or South Dakota unless:
(a) the lawsuit is filed on his behalf by an attorney admitted to practice in the court in question and the pleadings have been signed pursuant to Federal Rule of Civil Procedure 11 by such attorney; or
(b) the filing of the lawsuit has been authorized by a federal judicial officer in writing after examining the lawsuit for frivolity or maliciousness.
(c) Anthony Moore will act at his peril in disregarding or attempting to circumvent this Writ and Order.See Docket No. 1-1.
Judge Miller noted in his Report and Recommendation that Moore repeatedly attempts to name the sitting judges in this District as defendants and that "[i]t may be time to call a halt to the waste of judicial resources that is occurring here with respect to Moore either by this court invoking the `rule of necessity' or the Eighth Circuit doing so by directing that a district judge of the District handle the case." See Docket No. 1.
Moore does not address the issue of his repeated efforts to disqualify every federal judge in this District, but instead contends that Judge Miller did not address Moore's allegations of "imminent danger of serious physical injury." See Docket No. 2.
The Court finds that the "Rule of Necessity" applies in this action. See Complaint of Doe, 2 F.3d 308 (8th Cir. 1993) (finding the rule of necessity permitted the Judicial Council of the Eighth Circuit to decide a judicial conduct proceeding where the majority of council members were disqualified because they were named respondents). Considering "the burdensomeness of [designating another judge from outside the district] and the patent insubstantiality of the pending [complaint]," the undersigned finds that "the best course is to decide this case . . . using the Rule of Necessity." Complaint of Doe, 2 F.3d at 310.
The Court has carefully reviewed the Report and Recommendation, relevant case law, Moore's objections, and the entire record, and finds the Report and Recommendation to be persuasive. The Court finds that Moore asserts the same allegations in his current filings as he has in numerous previous filings. While Moore makes conclusory statements, he has not submitted any relevant evidence that he is under imminent danger of serious physical injury as required under 28 U.S.C. § 1915(g). The Court ADOPTS the Report and Recommendation (Docket No. 1) in its entirety and does not authorize the filing of Moore's proposed complaint.