Opinion
NO. 9:01-CV-58
April 25, 2002
Harry Fred Scott, Crockett, TX (pro se), For Plaintiffs
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action is assigned to Hon. John Hannah Jr., Chief United States district judge for the Eastern District of Texas, who, by an order of reference dated March 2, 2001, (Docket No. 9), referred certain pretrial matters to the undersigned.
Referral of pretrial case management to United States magistrate judges is authorized by 28 U.S.C. § 636(b)(1)(A) and E.D. Tex. R. app. B (Rule 1(D)(1)). Generally, such references contemplate that magistrate judges shall rule on all pretrial matters that Congress authorizes magistrate judges to hear and determine. For all other pretrial motions, the reference contemplates that magistrate judges will conduct hearings, if necessary, and submit written reports containing proposed findings of fact, conclusions of law, and recommendations for disposition. Unless all parties consent to trial before a magistrate judge, trial and entry of final judgment will be handled by the district judge to whom the case is assigned.
I. Parties
Plaintiff, Reverend Harry Fred Scott (Reverend Scott), proceeding pro se, is a resident of Crockett, Houston County, Texas.Defendants are: (1) State of Texas, (2) First National Bank, (3) Citizen National Bank, (4) Attorney General of Texas, (5) 349th District Court, (6) District, Office of the District Clerk 349th Court, (7) City of Crockett, (8) Crockett Economic Development Board, (9) Crockett Chamber of Commerce, (10) State of Texas Historical Commission, (11) State of Texas Department of Housing and Community Affairs, (12) Secretary of State, Office of the Secretary of State, (13) Bill Horn, Crockett City Administrator, (14) David Gay, (15) Charles Cunningham, (16) Wayne Mask, City of Crockett Mayor, (17) Darrell Deckard, (18) Crockett Economic and Industrial Development Corporation, (19) Jake Caprielian, (20) Chris R.C. Von Doenhoff, Judge, Houston County, (21) Diane Rhone, Houston County Treasurer, (22) Cindy Maria Garner, District Attorney for Houston County, (23) Houston County, Texas, (24) Gerald Easterly, (25) Houston County Commissioner Court, (26) David L. Lamb, Sr., Individually and as member of the Houston County Commissioner Court, (27) CFEI Fire Department, CFEI Houston County Fire Marshal/EMC, (28) John Erickson, Individually and as member of the Houston County Chamber of Commerce, (29) Julius Clebourn, (30) Bail Bonding Board of Houston County, (31) Betty Gilbert, City of Crockett Secretary, and (32) Ron Duncan, City of Crockett Treasurer.
II. Original Proceedings
Reverend Scott is one of thirteen persons originally named as pro se plaintiffs in this action. The original complaint was signed by only seven of the thirteen plaintiffs. Two subsequent amended complaints were signed only by Reverend Scott, who clearly organized the suit and motivated the others to join.
Unfortunately, Reverend Scott's original and first two amended complaints presented a virtually undecipherable and confusing admixture of unrelated parties and allegations. The action was thus unmanageable for many reasons. The original and amended complaints action did not allege any injuries suffered by some of the named plaintiffs, or else alleged injuries suffered by people not named as plaintiffs. In addition, some defendants were not individually named, nor were all named defendants alleged to have committed wrongdoing. Further, the requested relief had little or no connection to the alleged wrongs.
After examining these jumbled allegations carefully, the court determined that interests of justice and of each individual plaintiff would be served — and, conversely, that abuse of the judicial system could best be avoided — by severing each named plaintiff's claims into a separate and distinct action. An order of severance was entered on July 17, 2001. (Docket No. 24).
This action remains pending on the court's docket. As a result of the severance mentioned above, only Reverend Scott remains as a plaintiff.
III. Proceedings After Severance
The above severance order directed that each original plaintiff submit a proposed amended complaint with a short and plain statement of the facts supporting his or her claims on or before August 15, 2001. The order further instructed each plaintiff to submit an amended complaint addressing only alleged wrongs causing injury to the individual named plaintiff, and also directed that each plaintiff name as defendant(s) only those person(s) or entities who allegedly perpetrated wrongdoing against and caused injury to the individual named plaintiff. Finally, the order gave each plaintiff notice that failure to comply with explicit directions of the severance order could result in dismissal for want of prosecution.
On September 14, 2001, Reverend Scott submitted a proposed amended complaint (Docket No. 28), and also a separate supplemental complaint (Docket No. 29). On October 2, 2001, Reverend Scott submitted three additional proposed amended complaints. (Docket Nos. 30, 31 32).
On August 15, 2001, Reverend Scott submitted a motion for extension of time within which to comply with the court's severance order. The court granted Reverend Scott's motion (Docket No. 42).
IV. Discussion
This Action is Insubstantial
Reverend Scott nominally complied with the court's severance order by filing an amended complaint. In every other respect, however, he flagrantly disregarded the court's explicit instructions. Instead of providing a short and plain statement of facts supporting his claims, he has filed five additional amended complaints. One of these simply resubmits voluminous material provided earlier, and which the court earlier considered and rejected as constituting an unmanageable hodgepodge of unactionable grievances.
Instead of paring defendants to name only those whose actions adversely affected him, Reverend Scott has added eight new defendants, and — even after submitting a total of eight complaints — Reverend Scott still fails to allege any specific wrongful conduct by most of them. Finally, instead of narrowing issues, Reverend Scott's amended complaints present at least one entirely new cause of action.
Defendants added in the five amended complaints filed after the court's severance order are:
Houston County Commissioner Court,
David L. Lamb, Sr., Individually and as member of the Houston County Commissioner Court,
CFEI Fire Department, CFEI Houston County Fire Marshal/EMC,
John Erickson, Individually and as member of the Houston County Chamber of Commerce,
Julius Clebourn [Docket has Jacquline Clebourn, but amended complaint has Julius Clebourn],
Bail Bonding Board of Houston County,
Betty Gilbert, City of Crockett Secretary, and
Ron Duncan, City of Crockett Treasurer.
Reverend Scott has now submitted a total of eight complaints since the inception of this suit. Considering that he is a clergyman, and that the general object of his litigation is to benefit others as well as himself, it would be invidious to suggest that Reverend Scott purposefully is engaging in malicious litigation. However, given the circumstances just recited, it is evident that his continuing litigation has become vexatious in effect. Reverend Scott attempts to use this federal court to complain about virtually every aspect of municipal government and local politics in the community of Crockett, Texas. He brings suit against anyone in municipal government who opposes his views or thwarts his political vision. And once a lawsuit is filed, Reverend Scott substantially ignores the court's instructions to plead specific facts while pursuing a recreational-type strategy of presenting an ever-moving, nebulous target of both parties and claims.
_____Reverend Scott's other litigation in this district includes:Scott et al. v. Mask et al., No. 9:01-CV-51 (E.D.Tex. filed Feb. 20, 2001). Scott v. Tish, et al., No. 9:94-CV-134 (E.D.Tex. June 30, 1994);Scott v. Tish, et al., No. 9:93-MC-19 (E.D.Tex. Feb 22, 1994); Barbara Jewel Smith v. Crocket I.S.D., No. 9:92-CV-214 (E.D.Tex. July 10, 1996) (agreed final judgment entered); and Scott v. Tisch, et al., No. 9:87-CV-54 (E.D.Tex. Apr. 13, 1993) (Final Judgment for Preston Tisch against Harry Fred Scott entered).
Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and federal statute. Nothing in the Constitution or federal statutes confers on federal courts the authority to intervene in and manage by judicial decree local affairs of municipal government or private commercial transactions between citizens. Yet, Reverend Scott — being either unaware of or unwilling to acknowledge this limitation of federal jurisdiction — relentlessly continues to bring to the court grievances concerning entirely local matters.
Reverend Scott attempts to accomplish indirectly his objective of having a federal court manage local municipal projects, services and politics by claiming racial discrimination. Most assuredly, the United States Constitution and many other federal laws prohibit injurious discrimination based on race. However, federal law provides no guaranty against all injustices. It is not enough to show that discriminatory, arbitrary or unjust action has been taken against a citizen of a minority race. Federal protection is triggered only by showing that such action occurred because the citizen is a minority.
To state a cognizable claim, one must allege facts, not mere conclusions. Moody v. Baker, 857 F.2d 256, 258 (5th Cir. 1988). Moreover, a subjective belief of discrimination — no matter how sincerely held — is not sufficient to provide a basis for judicial relief. Nichols v. Grocer, 138 F.3d 563, 570 (5th Cir. 1998) (citing toLittle v. Republic. Ref. Co., 924 F.2d 93, 96 (5th Cir. 1991). Yet, despite having taken advantage of numerous opportunities to plead his case on eight separate occasions, and having received the court's guidance through specific instructions to plead facts that might support a cause of action, Reverend Scott has not succeeded in bringing to the court anything more than conclusory allegations based on subjective beliefs.
The United States Supreme Court has repeatedly held that federal courts are without power to entertain claims otherwise within their jurisdiction if they are so attenuated and insubstantial as to be absolutely devoid of merit. See Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795 (1904). Reverend Scott's allegations fit within that category, and warrant a summary dismissal of this action as wholly and plainly unsubstantial.
Reverend Scott's Specific Allegations
A district court may sua sponte, or on its own, dismiss a complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Shawnee Int'l, N.V. v. Hondo Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984). However, for a pro se plaintiff, a court must generally give such a plaintiff the opportunity to amend before dismissing for failure to state a claim under Rule 12(b)(6). Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). In this case, the court has granted Reverend Scott numerous opportunities to state specific facts.
Considering the requirement that pro se litigants' pleadings must be construed broadly and liberally, this report, alternatively, will examine on the merits those complaints that appear to pertain to conduct that affected Reverend Scott directly.
To insure equal access to the courts, courts interpret pleadings of lay litigants proceeding pro se liberally. United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996). Moreover, pro se actions will not be dismissed based on technical pleading defects. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Rather, such actions must proceed toward a trial unless it is clear that pro se litigants can prove no set of facts that will entitle them to relief. Id.
Exhaustive examination of the voluminous material submitted leads one to conclude that Reverend Scott alleges four wrongdoings that directly and adversely affected him individually. While these allegations are also nebulous and mostly conclusory, they essentially assert:
Wrongful imposition of seventeen abstracts of judgment liens;
Breach of settlement agreement reached regarding voting rights in the case of Barbara Jewel Smith v. Crockett I.S.D., No. 9:92-CV-214 (E.D.Tex. July 10, 1996) (agreed final judgment entered);
Fraud in connection with Reverend Scott's plan to restore Mary Allen College; and
Breach of a contract regarding Reverend Scott's services of demolishing burned-out houses and other substandard buildings.
Each allegation will be examined separately.
1. Judgment Liens on Property
Reverend Scott's first allegation relates to his bail bonding business. According to Reverend Scott, numerous bail bonds on which he acted as surety were forfeited after criminal defendants failed to appear in court. Thereafter, judgments were obtained for the amount of the bonds, and, when not timely paid, abstracts of judgment were recorded, resulting in judgment liens against Reverend Scott's real property.
The defendants named with respect to this allegation are:
Houston County Commissioners Court
Cindy Maria Garner
Bail Bonding Board of Houston County
State of Texas, et al.
Despite naming four defendants, Rev. Scott describes only actions purportedly taken by the second defendant, Cindy Maria Garner.
Reverend Scott specifically states he is "not questioning whether Defendant had the power to place [liens] on Plaintiff." Pl. Am. Compl. at 3. (Docket No. 28). Moreover, he does not allege that procedures established under state law for obtaining and abstracting judgments were not followed. Consequently, he makes no traditional substantive or procedural Due Process claims.
What Reverend Scott complains of is that (a) some of the liens were placed on his homestead, and (b) he did not have an opportunity to negotiate settlements for lesser amounts before judgments were obtained and bonds were forfeited. This complaint simply fails to invoke federal subject-matter jurisdiction. The Constitution and laws of the United States do not exempt homesteads from execution on judgments. Neither do they confer upon individuals serving as sureties on bail bonds the right to negotiate settlements for lesser amounts than the face of the bonds prior to or after entry of judgments of forfeiture. Whatever claims may exist in this respect arise exclusively under state law, and are matters over which the state courts have exclusive jurisdiction. This court is without power to act on these claims.
2. Breach of Contract
From the standpoint of legal analysis, Reverend Scott's allegations 2 and 4 above are identical. They both allege breaches of contract. One agreement or contract was entered for the purposes of settling a federal lawsuit. The other was for demolition services.
The only defendants specifically named in connection with an alleged breach of settlement agreement are:
1. City of Crockett
Wayne Mask
3. Bill Horn
4. Crockett I.S.D.
5. Houston County Commissioners Court
6. Judge Von Doenhoff
7. Ron Duncan
Betty Gilbert.
The only defendants specifically named in connection with the alleged breach of demolition contract are:
Bill Horn
Wayne Mask
Julius Clebourn.
Nothing in the Constitution or federal statutes confers on federal courts the authority to adjudicate contract disputes between citizens of the same state. Such authority is lacking even when the contract at issue is a settlement agreement entered in a federal lawsuit. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). In Kokkonen, the United States Supreme Court held unequivocally:
[E]nforcement of the settlement agreement is for the state courts, unless there is some independent basis for federal jurisdiction.Id. at 382.
In Kokkonen, the Supreme Court indicated that a federal court might enforce a settlement agreement if its judgment explicitly retained jurisdiction over the settlement contract. 511 U.S. at 382. That exception is of no benefit to plaintiff here. Even if the court did retain jurisdiction to enforce the settlement contract in Barbara Jewel Smith v. Crockett I.S.D., any motion to enforce or motion for contempt would be filed in that action, and not as a separate and independent suit.
The fact that a federal court had original subject-matter jurisdiction over a suit, e.g., a dispute concerning minority voting rights, does not suffice to provide an independent basis for federal jurisdiction over a subsequent dispute regarding breach of settlement agreement reached in the earlier suit. McCall-Bey v. Franzen, 777 F.2d 1178, 1185 (7th Cir. 1985). Therefore, there is no independent basis for federal jurisdiction regarding either the prior lawsuit settlement agreement or the municipal contract for demolition services. Reverend Scott's breach of contract allegations do not invoke the subject-matter jurisdiction of the court, and the court cannot entertain these allegations. Consequently, they must be dismissed.
The exact nature of Rev. Scott's breach-of-settlement-agreement allegation is unclear. He does not identify specific provisions of the agreed judgment that defendants allegedly violated. Rather, he alleges that the "spirit" of the agreement was violated. Pl. Supplemental Compl. at 3. (Docket No. 29). It may be, then, that Rev. Scott is complaining more of the lack of political success subsequent to implementation of the agreement than of any literal or specific breach of the agreement. If so, his complaints are misdirected. The Voting Rights Act does not establish a right of a minority group to elect its representatives in proportion to its population size. 42 U.S.C. § 1973(b). Rather, the focus of the Act is "whether the political process is equally open to minority voters." Thornburg v. Gingles, 478 U.S. 30, 79, 106 S.Ct. 2752, 2781, 92 L.Ed.2d 25 (1986). The Act guarantees a fair process, not anequal result, or political success.
3. Fraud
The final allegation requiring examination is Reverend Scott's claim of being defrauded. Although the background facts are again muddled, it appears that Reverend Scott advocated a noble idea of restoring and reestablishing a defunct community-based college formerly known as Mary Allen College. Reverend Scott claims he communicated with a design firm, Bridges Hoyt Design, and John Kroll, Executive Director, Economic Industrial Development Corporation, regarding the restoration. However, Reverend Scott's plans were thwarted when the Houston County Fire Marshal (not a defendant) determined that the site was extremely dangerous and a fire hazard. Reverend Scott's complaint alleges that "several months later another group of people offered to restore the same structure building and promised to provide a sum of $25,000.00, and was granted the opportunity to restore Mary Allen College."
The only defendants alleged to have committed fraud are:
Bill Horn
Wayne Mask
Julius Clebourn
Again, Reverend Scott's allegations fail to invoke the court's subject-matter jurisdiction. Federal law does not provide a cause of action based on fraud. The tort of fraud is a creation of Texas common law, and Texas courts enjoy exclusive jurisdiction over fraud suits between citizens of Texas. There simply is no federally protected right to restore a college, and no federally protected right not to be defrauded.
RECOMMENDATION
This action should be DISMISSED for failure to comply with orders of the court, for failure to invoke the court's subject-matter jurisdiction, and for failure to state a claim.
OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).