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dismissing a case filed by an individual on the restricted filer list
Summary of this case from Lloyd v. United StatesOpinion
Case No. 2:06-CV-00308.
May 11, 2006
PROPOSED FINDINGS AND RECOMMENDATION
On April 27, 2006, Petitioner, Larriante Sumbry, an Indiana state prisoner, filed an Application to Proceed in forma pauperis (docket sheet document # 1) and a Petition for a Writ of Habeas Corpus (# 2). The matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b) (1) (B).
The undersigned proposes that the presiding District Judge FIND that the United States District Court for the Southern District of West Virginia lacks jurisdiction over this civil action because Petitioner was neither convicted, nor is he incarcerated in this district. As shown in the attached "Opinion and Order," Petitioner is on the restricted filer list of the United States Court of Appeals for the Seventh Circuit.
Accordingly, it is respectfully RECOMMENDED that the presiding District Judge DISMISS this matter for lack of jurisdiction and DENY AS MOOT Petitioner's Application to Proceed in forma pauperis (# 1).
Plaintiff is notified that this "Proposed Findings and Recommendation" is hereby FILED, and a copy will be submitted to the Honorable John T. Copenhaver, Jr., United States District Judge. Pursuant to the provisions of Title 28, United States Code, Section 636(b) (1) (B), and Rules 6(e) and 72(a), Federal Rules of Civil Procedure, Plaintiff shall have ten days (filing of objections) and then three days (service/mailing) from the date of filing this "Proposed Findings and Recommendation" within which to file with the Clerk of this Court, specific written objections, identifying the portions of the "Proposed Findings and Recommendation" to which objection is made, and the basis of such objection. Extension of this time period may be granted for good cause shown.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). Copies of such objections shall be served on Judge Copenhaver and this Magistrate Judge.
The Clerk is directed to file this "Proposed Findings and Recommendation" to mail a copy of the same to Plaintiff.
United States District Court Northern District of Indiana South Bend Division
LARRIANTE' SUMBRY, Petitioner,vs. CAUSE NO. 3:06-CV-144 AS
SUPERINTENDENT INDIANA STATE PRISON, Respondent.
OPINION AND ORDER
Larriante' Sumbry, a pro se prisoner, mailed a habeas corpus petition to the United States District Court for the District of Columbia. That court transferred the case to this district, perhaps without knowing that he is on the restricted filer list for the United States Court of Appeals for the Seventh Circuit and/or perhaps so that this court would be aware of his continued intransigence.
Mr. Sumbry has repeatedly abused the judicial process and he has been progressively sanctioned and restricted. The Circuit has ordered that,
. . . the clerks of all federal courts within this circuit shall return unfiled all papers submitted directly or indirectly by or on behalf of Larriante' J. Sumbry unless or until Sumbry has paid in full all outstanding filing fees and sanctions. This order does not apply to criminal cases or petitions challenging the length or terms of his confinement. . . .In Re Larriante' J. Sumbry, No. 02-2565 (7th Cir. August 1, 2002).
Until he pays his entire debt to this and the district courts, we will receive but not act on any § 2244(b)(3) application submitted by Sumbry.Sumbry v. Davis, No. 03-4332 (7th Cir. January 16, 2004).
[C]lerks of all federal courts within this circuit must return unfiled any papers submitted by . . . Sumbry in any habeas corpus action unless the petition attacks a state court imposed criminal judgment.Sumbry v. Davis, No. 03-2937 (7th Cir. March 30, 2004).
The Circuit has further observed that,
[b]ecause . . . Sumbry ha[s] received federal habeas corpus review of [his] current convictions, [he is] effectively barred from filing any civil action in the district courts until [he] settle[s] [his] debts to the federal judicial system.Sumbry v. Davis, No. 03-2937 (7th Cir. March 30, 2004)
Nevertheless, despite having been repeatedly fined and restricted, Mr. Sumbry persists in exploiting the judicial system by filing papers in the district courts of other circuits. When he attempts to directly file papers in this district, where the clerk's office is painfully familiar with his litigation history, the staff understand their obligation to return unfiled Mr. Sumbry's papers. Obviously this is not always known in district courts outside of the Seventh Circuit.
Mr. Sumbry appears to have exploited this loophole approximately three dozen times in at least 24 states and the District of Columbia over the last two years. When those courts have transferred a case to this district, the clerk of this court has properly accepted the transfer and opened a new case which was promptly dismissed by order of this court. It was proper for the clerk of this court to accept these transfers because in each case a judge in those districts signed an order transferring the case and it is not for the clerk of this court to refuse to honor those judicial orders. See Hall v. Stone, 170 F.3d 706, 708 (7th Cir. 1999) ("Even an invalid judicial order must be obeyed until it is stayed or set aside on appeal.")
Nevertheless, Mr. Sumbry is restricted from filing in this circuit and therefore pursuant to the orders of the Seventh Circuit, this case is DISMISSED. Furthermore, the clerk is DIRECTED to forward a copy of this order to the Seventh Circuit and the Superintendent of the Indiana State Prison so that they are aware of Mr. Sumbry's continuing exploitation of the judicial process despite the previous fines, sanctions, and restrictions.
IT IS SO ORDERED.
ENTERED February 15, 2006
S/ ALLEN SHARP ALLEN SHARP, JUDGE UNITED STATES DISTRICT COURT