MERHIGE

Roger Zaczek, pro se.

Robert Sinclair Corish, Slenker, Brandt, Jennings & Johnston, Merrifield, Va., Linwood Theodore Wells, Office of Atty. Gen., Warren H. Britt, James Walter Hopper, Parvin, Wilson, Barnett, & Hopper, Lynne Jones Blain, Browder & Russell, Richmond, Va., John David McGavin, Lewis, Trichilo & Bancroft, P.C., Fairfax, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, Roger Zaczek, a Virginia State prisoner proceeding pro se, submitted this complaint under 42 U.S.C. § 1983. Plaintiff alleged, inter alia, that he was falsely arrested, falsely imprisoned, and maliciously prosecuted for an incident that occurred on May 31, 1988. Jurisdiction is appropriate pursuant to 28 U.S.C. § 1343(a)(3).

By Order entered March 14, 1991, the Court ruled on at least ten (10) motions filed by the plaintiff. Eight days later, on March 22, 1991, plaintiff filed a document entitled "Motion to amend or alter judgment". It challenges the validity of the March 14 Order and was served within ten (10) days of it. Accordingly, the Court construes it as a Rule 59(e) motion. See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir.1978).

In addition, the plaintiff also filed the following documents:

1. Plaintiff's third motion for summary judgment against Deputy Moshier filed on March 28, 1991;

2. Plaintiff's opposition to defendant Moshier's motion for sanctions and plaintiff's motion for sanctions against Deputy Moshier filed April 1, 1991; and

3. Application for interlocutory appeal or notice of interlocutory appeal filed April 3, 1991.

Also pending is a motion for summary judgment filed by defendant Hunsaker to which the plaintiff responded on April 8, 1991. Finally, on May 6, 1991, plaintiff filed a document entitled "Rule 78 Motion ..." in which he demands an immediate decision on his Rule 59(e) motion. The motions are ripe for disposition.

The first issue which must be addressed is plaintiff's application for or notice of an interlocutory appeal. Plaintiff seeks to appeal an Order entered March 22, 1991 in which the Court declined to consider certain motions filed by him. A notice of appeal filed prior to the disposition of a Rule 59(e) motion is void and has no effect. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61, 103 S.Ct. 400, 403-04, 74 L.Ed.2d 225 (1982); Fed.R. App.P. 4(a)(4)(iii). Moreover, plaintiff's application for an interlocutory appeal is baseless. The March 22 Order was not a final determination of the plaintiff's claims against defendant Moshier. Cf. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). It certainly did not involve a controlling question of law as to which there is substantial ground for difference of opinion. See 28 U.S.C. § 1292(b). In fact, the Court did not even consider the merits of the subject claims because the plaintiff improperly filed his motions. Accordingly, plaintiff's application for an interlocutory appeal will be DENIED.

Next, plaintiff seeks to alter or amend the March 14, 1991 Order. He alleges that the Court erroneously denied his motion to amend the complaint to add a claim against defendant Moshier. See Memorandum entered March 14, 1991 p. 13-14. The Court has already carefully considered plaintiff's "double jeopardy claim". Id. It is frivolous and has no basis in law or fact. The instant motion fails to persuade the Court that the March 14 Order is erroneous. Accordingly, plaintiff's Rule 59(e) motion will be DENIED. In view of this decision, the document entitled plaintiff's "Rule 78 Motion" will be DENIED as MOOT.

The third issue which must be addressed is yet another motion filed by the plaintiff. On March 28, 1991, plaintiff filed a document entitled "Plaintiff's third motion for summary judgment as to defendant Deputy Moshier....". This motion clearly violates the specific terms of the Orders entered January 4, 1991 and March 14, 1991. It is also but one example of plaintiff's abusive litigation practices. The Court will, therefore, sanction the plaintiff for his "contumacious conduct". See Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir.1974). For the reasons set forth below, the complaint will be DISMISSED WITH PREJUDICE. The Court recognizes that the sanction is harsh. As a result, a detailed discussion of the facts of this case and reasons for the sanction will follow. However, the plaintiff has persistently ignored and refused to comply with the Orders of this Court. He is solely responsible for his abusive misconduct; and there is no other sanction which is appropriate under the circumstances of this case.

Statement of Facts

The instant complaint was filed by Order entered September 5, 1990. Since that date, the plaintiff has flooded the Court with unnecessary motions. In less than four months, plaintiff filed thirty-seven (37) motions, supplements, objections and replies. On January 4, 1991, the Court ruled on all pending motions. It also instructed and cautioned the plaintiff, as well as the defendants, to comply with the Local Rules and the Federal Rules of Civil Procedure. See Memorandum entered January 4, 1991 at p. 50-53. Additionally, the plaintiff was warned that the Court would not tolerate his constant barrage of unnecessary and repetitive motions. Id. at 52-53.

Thereafter, despite the Court's admonition, the plaintiff filed approximately ten more motions. By Order entered March 14, 1991, the Court ruled on all pending motions including a demand for summary judgment against defendant Moshier filed by the plaintiff on January 22, 1991. The plaintiff was also warned, for the second time, that his successive motions would not be tolerated. The pertinent portion of that Order stated:

The Court recognizes that the plaintiff is a pro se litigant. As a result, the Court will presume that he did not deliberately ignore, but misunderstood the January 4, 1991 admonition against unnecessary, supplemental motions. However, plaintiff is again ADVISED that the Court will not tolerate successive or supplemental

motions. Should plaintiff continue to file such documents, appropriate sanctions will be imposed. Further, plaintiff is ADVISED that should he again disregard or violate this Court's specific orders, the action may be dismissed. Fed.R.Civ.P. 41(b).

Memorandum entered March 14, 1991 at p. 16-17.

Shortly before the March 14 Order was issued, plaintiff filed two more motions for summary judgment against defendant Moshier. The first was submitted on March 8, 1991. The second was filed on March 11, 1991. By Order entered March 22, 1991, the Court refused to entertain these motions for two reasons. First, they did not comply with the Local Rules of this Court. More importantly, however, the motions were successive and clearly violated the specific terms of the January 4, 1991 Order. Thus, plaintiff was notified for the third time that his persistent motions were improper.

Nevertheless, six days later, on March 28, 1991 the plaintiff disregarded the clear and specific Orders of this Court by filing another motion for summary judgment against defendant Moshier. This last motion is but one example of a pattern of abusive litigation which began the moment the plaintiff filed this action. A lengthy discussion to further detail his abuses is not necessary. The docket speaks for itself. In recognition of plaintiff's pro se status, the Court repeatedly advised, warned and admonished him to refrain from filing repetitious and successive motions. In response, the plaintiff ignored and disobeyed the Court.

A review of the history of this case and relevant precedent reveals that it is now appropriate to sanction the plaintiff. To reach this conclusion, the Court has considered four issues and answered each affirmatively. First, the Court will review whether or not federal courts possess the authority to dismiss cases with prejudice sua sponte. Next, it will discuss whether pro se litigants are subject to such sanctions. The Court will then analyze the circumstances which must exist before the dismissal sanction may be imposed. Finally, the Court will determine whether or not dismissal is appropriate in this case.

I.

There is no doubt that federal courts possess the inherent authority to dismiss cases with prejudice sua sponte. See Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734, reh'g denied, 371 U.S. 873, 83 S.Ct. 115, 9 L.Ed.2d 112 (1962); White v. Raymark Industries, Inc., 783 F.2d 1175 (4th Cir.1986) (inherent authority to dismiss to control docket recognized and approved). In fact, district courts have invoked the sanction on numerous occasions, albeit with great caution. See White, 783 F.2d at 1177; Eash v. Riggins Trucking, Inc., 757 F.2d 557, 561-62 (3rd Cir.1985) (en banc) (authority is so well entrenched, it is often presumed but not defined).

The United States Supreme Court described the origin of and purpose for the dismissal sanction in Link v. Wabash R. Co., 370 U.S. 626, 629-36, 82 S.Ct. 1386, 1388-92, 8 L.Ed.2d 734 (1962). In Link, the Supreme Court affirmed a District Court's decision to dismiss a case with prejudice because plaintiff's counsel failed to appear at a pretrial hearing and failed to promptly prosecute the complaint. The Court explained that the authority "to dismiss sua sponte for lack of prosecution" is an "`inherent power' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases". Id. at 630-36, 82 S.Ct. at 1388-92 (citations omitted). It also held that the authority to dismiss is not limited by Federal Rule Civil Procedure 41(b), which generally applies to involuntary dismissals. Nor is the authority dependent upon notice to the plaintiff, or the existence of a Local Rule. Id. 632-34, 82 S.Ct. at 1389-91.

However, the dismissal sanction is not limited to those cases in which a plaintiff fails to promptly prosecute his complaint. A variety of sanctions, including dismissal, may be imposed upon a party or an attorney who fails or refuses to obey a court order. The United States Supreme Court examined this authority more recently in Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-66, 100 S.Ct. 2455, 2463-64, 65 L.Ed.2d 488 (1980). In that case, the United States District Court for the Western District of Louisiana dismissed a complaint and ordered the plaintiff's attorneys to pay $17,000 to the defendant for attorney's fees and costs. In making this determination, the District Court found that the plaintiffs and their attorneys violated several discovery orders, improvidently enlarged the action and engaged in uncooperative behavior.

The Supreme Court affirmed the dismissal. It held that federal courts possess the inherent authority to "levy sanctions in response to abusive litigation practices". Id. at 765, 100 S.Ct. at 2463, citing, Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). This inherent authority was broadly defined as that which is "`necessary to the exercise of all others'". Id. 447 U.S. at 764, 100 S.Ct. at 2463, citing, United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812). Consequently, there is no doubt that federal judges possess the inherent authority to dismiss a complaint to sanction litigants or attorneys who violate court orders, abuse the litigation process, or otherwise conduct the litigation in bad faith. Roadway, 447 U.S. at 764-66, 100 S.Ct. at 2463-64; Link, 370 U.S. at 629-34, 82 S.Ct. at 1388-91; Hillig v. Commissioner, 916 F.2d 171, 173-74 (4th Cir.1990) (involuntary dismissal requires some finding of deliberate misconduct); White, 783 F.2d at 1177.

Further, there are strong policies which support the dismissal sanction which are directly applicable to this case. First, the sanction provides the control necessary to achieve the orderly and expeditious disposition of cases. Link, 370 U.S. at 630-31, 82 S.Ct. at 1388-89. The authority also promotes the "administration of justice and dignity of the courts ..." Roadway, 447 U.S. at 764, 100 S.Ct. at 2463 (quoting Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925)). Quite obviously, the sanction protects those litigants who are direct victims of abusive litigation.

Increasingly, however, the dismissal sanction has been invoked to protect other litigants before a court. In Eash v. Riggins Trucking, Inc ., the Third Circuit observed that federal courts can no longer indulge misconduct because of the dramatic rise in litigation. 757 F.2d 557, 565 (3rd Cir.1985). This Court is no exception. As early as 1974, Circuit Judge Butzner noted that "the District Court for the Eastern District of Virginia is exceptionally busy, and the demands on the time of its judges and jurors are great". Reizakis v. Loy, 490 F.2d 1132, 1136 (4th Cir.1974). As a result, it is now necessary to deter or limit those few litigants who so overtax and abuse limited judicial resources, that they prevent others from obtaining relief and prompt access to the courts. See Eash, 757 F.2d at 565. As will be more fully discussed below, there is no doubt that all of these policies would be served if the dismissal sanction is applied to this case.

II.

The second issue requires only brief discussion. Pro se litigants are not immune from any sanction by virtue of their status alone. See e.g. Ballard v. Carlson, 882 F.2d 93 (4th Cir.1989), cert. denied sub nom., Ballard v. Volunteers of America, ___ U.S. ___, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990) (pro se complaint dismissed with prejudice for failure to obey court order despite warning). In fact, the authority to punish attorneys arises from the judiciary's inherent power to sanction litigants for misconduct. Roadway, 447 U.S. at 766, 100 S.Ct. at 2464. Moreover, it is well acknowledged that litigants may be sanctioned for abusive litigation even if they are represented by counsel. Alyeska Pipeline Service Co. v. Wilderness Soc., 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622-23, 44 L.Ed.2d 141 (1975) (courts have inherent authority to tax counsel fees against a party who litigates in bad faith); Link, 370 U.S. at 628-29, 82 S.Ct. at 1387-88 (case dismissed because of attorney's misconduct); Hillig, 916 F.2d at 173-74 (propriety of sanction against litigant depends upon his culpability).

Likewise, in White v. Raymark Industries, Inc . the Fourth Circuit held that "there is no distinction between attorney and litigant abuses of the judicial process when applying the inherent power of the federal courts to penalize those responsible for the wrongful conduct". 783 F.2d 1175, 1177 (4th Cir.1986). There is, therefore, no doubt that pro se litigants are subject to any and all appropriate sanctions for their misconduct.

III.

The next question is what factors must be present before a federal court may invoke its inherent authority to sanction a pro se plaintiff by dismissing a complaint with prejudice sua sponte. The Court initially notes that there is no standard which is directly applicable to the facts of this case. However, the Fourth Circuit has approved a four factor test for those cases in which a complaint is involuntarily dismissed for failure to prosecute under Fed. R.Civ.P. 41(b). These cases routinely call for review of (i) the degree of personal responsibility of the plaintiff; (ii) the amount of prejudice caused the defendant; (iii) the existence of a history of deliberately proceeding in a dilatory fashion, and (iv) the existence of a sanction less drastic than dismissal. Chandler, 669 F.2d at 920; Reizakis, 490 F.2d at 1135; see also Hillig, 916 F.2d at 174.

Those cases and one of the criteria are clearly distinguishable from the unique circumstances of this case. Here, a sanction is necessary because the plaintiff repeatedly failed to comply with the Orders of this Court; and because he abused the litigation process. As a result, it is necessary to employ a new standard of review. See e.g. White, 783 F.2d at 1177-78 (district court discretion used to fashion an appropriate sanction); Ballard, 882 F.2d at 95-96 (four prong test is not a rigid standard — propriety of dismissal depends upon the circumstances of the case). The new test will incorporate the existing standards, but will reflect the type of misconduct which this plaintiff has engaged in.

The Court preliminarily notes that dismissal is a severe sanction which must be exercised with restraint, caution and discretion. Roadway, 447 U.S. at 764, 100 S.Ct. at 2463; Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978) (dismissal is a harsh sanction which should not be invoked lightly). The policy of the federal courts is to decide each case on the merits if possible. It is therefore obvious that the plaintiff must engage in some deliberate misconduct before the sanction is applied. Thus, to dismiss a complaint, a federal court must first find that the plaintiff willfully disobeyed a court order or acted in bad faith. See Roadway, 447 U.S. at 766, 100 S.Ct. at 2464 (citation omitted); see also Hillig, 916 F.2d at 174-75 (dismissal under Rule 37 requires callous disregard for the authority of the district court); Reizakis, 490 F.2d at 1135 (dismissal is permitted when a plaintiff engages in "contumacious" conduct). A court may find bad faith in the actions that led to the lawsuit or the conduct of the litigation. Roadway, 447 U.S. at 766, 100 S.Ct. at 2464, citing, Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36 L.Ed.2d 702 (1973). In doing so, a court will necessarily determine the degree to which the plaintiff is personally responsible for the misconduct.

Further, in general, pro se litigants are unfamiliar with the litigation process. As a result, their pleadings are liberally construed. See Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (pro se complaints are held to less stringent standards); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The Court must also advise them of the procedures necessary to properly prosecute their actions under certain circumstances. Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (courts must advise pro se plaintiff's of procedures required to respond to motion for summary judgment).

In some cases, therefore, a court should advise a pro se plaintiff of the consequences of his misconduct before a sanction is imposed. In Ballard v. Carlson , the United States District Court for the District of Maryland warned the plaintiff before it ultimately dismissed a pro se complaint with prejudice under Fed.R.Civ.P. 41(b). The sanction was imposed because the plaintiff failed to comply with a court order. The Fourth Circuit affirmed the dismissal. 882 F.2d 93 (4th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990). It held that the explicit warning was a critical factor and alone sufficient to justify the dismissal. Id. at 95-96.

Similarly, the Court finds that a warning is a second factor which must be present before a pro se complaint may be dismissed for failure to comply with a court order. This prerequisite is not only appropriate but necessary in view of the severity of the sanction and the limited experience that most pro se litigants have with the judicial process. Additionally, this criteria comports with the fundamental requirements of due process in that a litigant will have fair notice of the consequences of his actions. See Link, 370 U.S. at 632, 82 S.Ct. at 1389 (the adequacy of notice and hearing turns on the party's knowledge of the consequences of his conduct).

Third, courts must examine the amount of prejudice which the plaintiff's actions have caused. This element may be reviewed from two different vantages. First, a court may assess the amount of prejudice which a defendant has sustained as a result of delay or the costs associated with defending frivolous pleadings and motions. Alternatively, in view of the dramatic increase in litigation, courts may also review the amount of prejudice which the other litigants before the court may face if the plaintiff's misconduct continues. See Eash, 757 F.2d at 565. Such a requirement ensures that district courts will have the tools required to efficiently administer cases and to protect the increasing number of individuals who seek access to the courts. Id.

Finally, federal courts must consider the existence of an effective sanction which is less drastic than dismissal. However, courts must do more than decide that a less severe sanction exists, for there is no doubt that such will always be the case. The relevant inquiry is whether or not a lesser sanction is feasible and appropriate in view of the history of each case and the plaintiff's conduct.

To summarize, the Court will analyze four factors to determine whether or not it is appropriate to invoke the Court's inherent authority to dismiss the instant complaint with prejudice sua sponte. The factors to be examined are: (1) the bad faith or deliberate misconduct of the plaintiff; (2) the notice which the plaintiff received concerning the consequences of his continued misconduct; (3) the amount of prejudice caused by the plaintiff; and (4) the existence of an effective sanction which is less drastic. In view of these criteria, there is no doubt that the instant complaint should be dismissed.

IV.

The plaintiff in this case has clearly abused the judicial process and is personally responsible for his misconduct. As noted, in eight months, he filed over fifty motions. Each time the Court issued a decision, the plaintiff filed another stream of repetitive motions and objections. Zaczek filed approximately ten motions against one defendant alone including several motions for summary judgment. Simply stated, the plaintiff conducted this litigation in bad faith.

More importantly, Zaczek willfully disregarded the authority of this Court and ignored several admonitions. By Order entered January 4, 1991, the plaintiff was warned that he would not be permitted to file successive or supplemental motions. See Memorandum entered January 4, 1991 at p. 50-53. The plaintiff responded to that Order by filing ten more motions. By Order entered March 14, 1991, the plaintiff was again warned that the Court would not tolerate unnecessary, successive and repetitive motions. See Memorandum entered March 14, 1991 at p. 10-17. Shortly before that Order was issued, plaintiff filed two more motions. The Court refused to entertain those motions because they were successive. See March 22, 1991 Order. Thus, plaintiff was also warned, by example, of the type of motions which violated the January 4 Order. Nevertheless, six days later, Zaczek filed yet another motion for summary judgment. And, he has continued to file additional motions since that date. The docket alone is sufficient to demonstrate that the plaintiff has conducted this litigation in bad faith. Moreover, there is no doubt that his conduct was deliberate and that he voluntarily chose to ignore the Orders of this Court. As a pro se litigant, plaintiff bears complete personal responsibility for his actions in contrast to a client who might be unaware of the actions of his attorney. Zaczek is also familiar with legal research and the litigation process. In addition, the plaintiff was repeatedly admonished and had, therefore, ample notice of the consequences of his continued misconduct.

There is no doubt that the defendants in this case have been prejudiced by the plaintiff's misconduct. Their attorneys were required to review, research and respond to an incessant barrage of repetitive motions. This obviously caused unnecessary expenses for costs and attorneys fees. Further, the manner in which the plaintiff prosecuted his claims frequently confused the issues before the Court making it very difficult for the defendants to properly defend the action. See Defendant's motion for enlargement of time of November 19, 1990. In addition, although the issues are not complicated, this case has required an inordinate amount of time and judicial resources. More so than any other pro se action. Should the plaintiff be permitted to continue to unnecessarily consume limited judicial resources, the other litigants before this Court, including those proceeding pro se, will be severely prejudiced.

Finally, under the circumstances of this case, there is no other sanction which would be effective or appropriate. Plaintiff Zaczek is a Virginia State prisoner proceeding pro se. He is unemployed and has few assets. See Plaintiff's motion for in forma pauperis status. A monetary sanction would do little to curb his conduct and is not feasible.

The Court has considered dismissing only those claims against defendant Moshier because this defendant has been the object of the plaintiff's most flagrant abuses. However, the history of this case demonstrates that the plaintiff has no regard for the authority of this Court and would not, therefore, comply with a lesser sanction. His most recent submissions reveal that he clearly does not intend to discontinue his abusive motion practice. See Plaintiff's motion for interlocutory appeal; see also plaintiff's Rule 78 motion. Finally, the plaintiff was warned that the complaint could be dismissed if he did not obey the Orders of this Court. It is, therefore, appropriate to apply that sanction. Accordingly, for all of the reasons stated above, the complaint will be DISMISSED WITH PREJUDICE. All pending motions are DENIED as MOOT.

An appropriate Order shall issue.

ORDER

In accordance with the accompanying Memorandum, it is ORDERED that:

1. Plaintiff's application for an interlocutory appeal is DENIED;

2. Plaintiff's Rule 59(e) motion to amend or alter the March 14, 1991 Order is DENIED;

3. Plaintiff's "Rule 78 motion" is DENIED as MOOT;

4. The complaint is DISMISSED WITH PREJUDICE;

5. All other pending motions are DENIED as MOOT; and

6. This case stands CLOSED.

Should plaintiff desire to appeal, written notice of appeal must be filed with the Clerk of the Court within thirty (30) days of the date of entry hereof.

Let the Clerk of the Court send a copy of this Order and the Memorandum filed herewith to the plaintiff and counsel for the defendants.

And it is so ORDERED.