In re Winslow

Full title: In re Rainsford J. WINSLOW, Debtors. Rainsford J. WINSLOW and Winifred W…

Court: United States District Court, D. Colorado

Date published: Oct 10, 1991

132 B.R. 1016 (D. Colo. 1991)

Opinion

Civ. A. Nos. 89-K-1811, 90-K-663, Bankruptcy No. 89-B-247-E.

October 10, 1991

Rainford Winslow, pro se, and for debtors-appellants.

Arthur Linguist-Kleissler, Robert J. Dyer, III, Philip A. Pearlman, Denver, Colo., Christina C. Bauer, Brush, Colo., E. Ord Wells, Ft. Morgan, Colo., and Solomon Linguist-Kleissler, Denver, Colo. for creditors-appellees.

ORDER DENYING MOTION FOR RULE 60(B) RELIEF AND LIMITING THE FILING OF MOTIONS FOR RECONSIDERATION

KANE, Senior District Judge.

On September 16, 1991, Rainsford J. and Winifred W. Winslow filed a "Verified Motion to Prevent Morgan County/Williams Class from Getting a Million Dollar Reward after Committing Two Serious Fraudulent Federal Felonies as per Title 18 U.S.C. § 152 and 1001 which is Projected to be the Biggest and Most Infamous Crime in the History of Morgan County." The Winslows allege:

(1) in 1980, attorney Stanley Rosener committed a criminal act by tapping into the Winslows' privately owned sewer system without permission;

(2) in June, July and September 1989, Morgan County and the Williams Group, two creditors of the Winslow bankruptcy estate, filed false proofs of claims by concealing that they had not revived the state court judgments upon which their claims were based;

(3) the attorneys representing Morgan County and the Williams Group, the bankruptcy trustee and her counsel, and the U.S. Trustee participated in the concealment of the falsity of the claims;

(4) Judge Matheson, presiding in the Winslows' bankruptcy case, approved the Morgan County and Williams Group claims as secured;

(5) the Winslows did not get a fair trial before an impartial judge in the state court action which resulted in the judgments in favor of Morgan County and the Williams Group; and

(6) two of the three state court judges hearing an appeal related to the state court judgments were improperly appointed.

( See Motion at 2-3).

The motion requests relief under Rule 60(b)(3) and (4), from final judgments entered in Civil Action Nos. 89-K-1811 and 90-K-633 on May 8, 1990 and February 5, 1991, respectively. The Winslows have further appealed both judgments. On June 7, 1991, the Court of Appeals for the Tenth Circuit entered an order and judgment affirming this court's ruling in No. 89-K-1811. See Winslow v. Williams Group (In re Winslow), 935 F.2d 278 (10th Cir. 1991). The appeal of No. 90-K-663 is still pending. See Winslow v. Morgan County (In re Winslow), No. 91-1047 (notice of appeal filed Feb. 5, 1991).

This motion demonstrates the Winslows' litigiousness, disorganization and repeated disregard for the authority of this court. This is now the fifth motion seeking extraordinary postjudgment relief that the Winslows have filed in connection with No. 89-K-1811.¹ In an order entered on February 15, 1991, I denied the preceding two motions, explaining that they were procedurally improper in the context of a bankruptcy appeal. (Order on Rule 59(e) and Rule 60(b) Mots. and Mot. for Subs. of Counsel at 1-2.) In addition, I noted that "[i]f . . . the Debtors are seeking to have the state court judgments against them altered through these motions, this court has no jurisdiction to do so . . . ." (Order on Rule 59(e) and Rule 60(b) Mots. at 2.) Again the Winslows raise the validity of these state court judgments, as well as other matters extraneous to both cases.

1 The four previous motions were: (1) "Verified Motion for Rehearing as Per B.R. 8015," filed May 18, 1990; (2) "Motion to permit Winslows to File Attached Memorandum in Support of Verified Petition for Rehearing," filed June 1, 1990; (3) "Verified Motion to Alter or Amend Order as Per FRCP 59(e), filed June 6, 1990; and (4) "Motion for Relief from Judgments as Per FRCP 60(b)(4), filed September 20, 1990. Each was denied.

Similarly, in connection with No. 90-K-663, I denied the Winslows' Motion for Relief from Judgment under Rule 60(b), filed August 23, 1990, advising them that such relief must be sought from the bankruptcy court. See In re Winslow, 121 B.R. 598, 600 (D.Colo. 1990). In that order, and in response to several parties' request for sanctions due to the Winslows' repeated attempts to raise issues not germane to the appeal, I noted that the Winslows, as pro se parties, were subject to the strictures of Rule 11. Id. at 600. In addition, I stated, "[t]he Debtors are hereby advised that the only matters at issue in this case concern the bankruptcy court's March 30, 1990 order converting their case from Chapter 11 to Chapter 7 and that, in the future, the filing of pleadings concerning other matters not at issue will subject them to sanctions." Id.

This court has exercised considerable patience with the Winslows' hypergraphia. They apparently believe that a case, including one long resolved by a final order of the court, can simply be reopened by filing a pleading containing the terminated case number, though the matters raised are clearly outside of the scope of the case. A lawsuit does not rise like a phoenix from the ashes. Once resolved on its merits, a case will be reopened and extraordinary postjudgment relief granted only on a strong showing of good cause. See Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990) (relief from judgment under Rule 60(b) "is extraordinary and may only be granted in exceptional circumstances"). Simple persistence, as demonstrated here, in the filing of repetitious motions for reconsideration and postjudgment relief does not constitute good cause.

Rule 11 of the Federal Rules of Civil Procedure requires that "[e]very pleading, motion, or other paper" shall be signed by a party or a party's attorney. That signature

constitutes a certificate by the signer that the signer has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

Fed.R.Civ.P. 11. "`The certification requirement now mandates that all signers consider their behavior in terms of the duty they owe to the court system to conserve its resources and avoid unnecessary proceedings.'" Business Guides, Inc. v. Chromatic Communications Enters., Inc., ___ U.S. ___, 111 S.Ct. 922, 929, 112 L.Ed.2d 1140 (1991) (citing 5A C. Wright A. Miller, Federal Practice Procedure § 1331 at 21 (1990)).

Rule 11 applies to persons representing themselves pro se as well as persons represented by attorneys. See Eisenberg v. University of N.M, 936 F.2d 1131, 1134 (10th Cir. 1991). While pro se pleadings are held to less stringent standards than those drafted by attorneys, see Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988), pro se status does not confer a license to "`harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.'" Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988) (citation omitted).

Furthermore, the court is empowered under 28 U.S.C. § 1651 (a) to sua sponte enjoin a litigant from abusing the court system. Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989). "`[E]ven onerous conditions' may be imposed upon a litigant as long as they are designed to assist the district court in curbing the particular abusive behavior involved," id. at 352 (citation omitted), and the litigant is not denied meaningful access to the courts. Especially in a case, as here, where a party simply refuses to accept an adverse judgment, "the courts are not powerless in these circumstances and are not required to expend judicial resources endlessly entertaining repetitive arguments. Nor are opposing parties required to bear the burden of meritless litigation." Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990).

The Winslows have repeatedly been cautioned that the filing of repetitious motions for reconsideration will not be tolerated.² They have specifically been warned in No. 90-K-663 that the filing of pleadings not germane to the action would be sanctioned under Rule 11. Yet they persist in disregarding the orders of this court, and refuse to accept the finality of the judgments entered against them. In light of the excessive burden that their actions have placed on this court and other parties to the litigation, I find that the following measures are justified under Rule 11 and 28 U.S.C. § 1651 (a).

2 In addition to the instances noted above, in another case, I entered an order restricting the Winslows' ability to commence original civil proceedings in this district without first obtaining leave of court. See Winslow v. Romer, 759 F. Supp. 670 (D.Colo. 1991). The Winslows filed several motions for reconsideration. In an order denying those motions, I stated:

Winslow again engages in the same practice which led to the entry of the March 20 order restricting his abusive practices. None of the multiple motions for reconsideration filed in this case raises any new issues not adequately addressed in my original. . . . Winslow shall refrain from filing repetitive motions for reconsideration in this case. If additional motions for reconsideration are filed, they will be stricken.

(Order, filed April 23, 1991, at 1-2.)

In the future, any motion for reconsideration of an order of this court, however denominated, may be filed only with the court's permission. To obtain this permission, the Winslows must first file a separate motion for leave of court to file a motion for reconsideration. The motion for leave of court shall (1) include a copy of the proposed motion for consideration, (2) identify the specific procedural rule upon which the request for reconsideration is based, (3) specify each factual finding or legal conclusion for which reconsideration is desired, and (4) contain a certification that the arguments presented in the proposed motion for reconsideration are germane to the action and have not been raised or ruled upon in the action or in any other proceeding in which the Winslows are or were parties. A motion for reconsideration not accompanied by a motion for leave of court shall be stricken. Repeated disregard of the above limitations shall be grounds for the issuance of a contempt citation.

Due process requires that the Winslows be given prior notice and the opportunity to oppose these restrictions before they are instituted. See Tripati, 878 F.2d at 354. "The notice and opportunity requirement does not, however, require an inperson hearing in the district court." Id. Thus, the Winslows may respond, in writing, to this order on or before October 21, 1991. If no response is timely filed, the restrictions contained in this order shall take effect on that date. If the Winslows timely file objections to this order, the restrictions shall not take effect until further order of the court.

Accordingly, the Winslows' motion for Rule 60(b) relief is DENIED, and their request for a hearing on this motion is DENIED. In addition, the motion entitled "Verified Memorandum in Support of Disqualification of Judge Charles E. Matheson and Complaints Concerning Three Other Bankruptcy Court Judges Which Should be Reported to the U.S. Senate Judiciary Committee for Investigation," filed on September 24, 1991 in No. 90-K-663 is DENIED, as it seeks relief not cognizable in the action.

ORDER ON RESTRICTIONS

On October 10, 1991, I entered an order contemplating the institution of limitations on the Debtors' ability to file motions for reconsideration in this court. I permitted the Debtors to respond in writing to this order before it took effect. The Debtors did so on November 4, 1991.

The Debtors' response reflects their continued inability to accept the rulings of this and other courts. Contrary to their suggestion, I have not failed to construe their pro se pleadings liberally, and, in fact, I have done so with regularity. Nor have I applied procedural rules more stringently with respect to the Debtors. This court is not required, however, to engage in the repetitive exercise of explaining to the Debtors that their attempt to collaterally attack state court judgments in federal court, no matter how styled, is futile. Their instant response again reflects their fundamental misunderstanding of the jurisdictional limitations on this court and their failure to acknowledge the finality of judgments against them.^1a

1a For example, the Debtors again request habeas corpus relief on behalf of themselves and the Morgan Heights class. As the Tenth Circuit explained in Winslow v. Shinn, No. 88-1231, slip op. at 2-4 (10th Cir. Dec. 28, 1988) (unpublished disposition affirming district court and imposing sanctions against the Debtors), the Debtors are precluded from seeking habeas corpus relief because they are not in custody, and furthermore, they are not qualified to do so on behalf of the Morgan Heights class. The Debtors again fail to acknowledge the existence of court rulings disposing of the issues they raise. The Debtors cite Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), (upon which they also relied in Winslow v. Shinn), and Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978), for the proposition that they need not be in prison to be in custody. Their reliance on both cases is misplaced. In Jones, the Court held that a parolee could be considered to be in custody because of certain significant restraints on his liberty. See 371 U.S. at 242, 83 S.Ct. at 376. In contrast to Jones, the Debtors have voluntarily placed themselves in bankruptcy in an attempt to avoid collection of the state court judgments against them. The alleged restrictions on their liberty are of their own making and are hardly comparable to those in Jones. In Sylvander, the First Circuit held that the habeas remedy was not available. 584 F.2d at 1112-1113.

Accordingly, good cause appearing therefor, the restrictions on the Debtors' ability to file motions for reconsideration contained in this court's order of October 10, 1991 shall take effect as of the date hereof.

RE WINSLOW, (Colo. 1991) cite as 132 B.R. 1020 In re Rainsford J. WINSLOW, Debtor. Nos. 90-K-2245, 91-K-1428. United States District Court, D. Colorado. October 31, 1991.

Rainsford J. Winslow and Winifred Winslow, pro se.

Arthur Linguist-Kleissler, Solomon Linguist-Kleissler, Robert J. Dyer, III, Stutz, Dyer Miller, Philip A. Pearlman, Skeen Pearlman, Denver, Colo., Carolyn Gail Hunter, Boulder, Colo., E. Ord Wells, Ft. Morgan, Colo., Christina C. Bauer, Brush, Colo, for creditors.

Leo M. Weiss, U.S. Trustee, Denver, Colo.

ORDER ON MOTIONS TO ALTER OR AMEND, MOTION TO VACATE CONTEMPT HEARING, MOTION FOR CLARIFICATION, MOTION FOR THE CONSTRUCTION OF JURY BOXES AND OBJECTION TO THE APPOINTMENT OF ATTORNEY KATCH

KANE, Senior District Judge.

Debtors have for the second time moved to alter or amend my judgment of September 4, 1991, 131 B.R. 171, in these cases, contending that I overlooked several of their arguments. I address their contentions seriatim.

First, the Debtors contend that the presiding bankruptcy judge, Judge Matheson, is biased and prejudiced against them and should be disqualified. Debtors state that I "have never reviewed this issue, except [to] deny any basis for disqualifying Judge Matheson." (Motion to Alter or Amend at 1.) Apart from the obvious inconsistency apparent on the face of this statement, I have considered this issue ad nauseam. The Debtors simply refuse to accept my judgment.

As I have advised the Debtors repeatedly, their feeling that Judge Matheson is personally biased against them is legally insufficient to support disqualification. The source of his bias must stem from some extrajudicial source, such as the judge's financial stake in the matter at hand or his personal knowledge, gained outside the courtroom, of the disputed facts of the case. See 13A Charles A. Wright et. al., Federal Practice and Procedure, § 3542 at 559 (1984). It is not sufficient that the judge "has ruled adversely to a party at an earlier stage . . . has made remarks critical of a party or his lawyer or that there were other indications of friction. . . . A party cannot force disqualification by attacking the judge and then claiming that these attacks must have caused the judge to be biased against him." Id. at 563-578. Nor will a statistical one-sidedness of the judge's evidentiary, factual or legal rulings against a party support disqualification. See Southern Pac. Comm. v. American Tel. Tel. Co., 740 F.2d 980, 995 (D.C. Cir. 1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985).

Here, I did not previously address the Debtors' complaints about Judge Matheson's bias because they were irrelevant to the question at issue in these cases: whether the bankruptcy court's proposed findings of fact and conclusions of law to support its contempt citations should be adopted as final. Since I remanded these cases for a determination whether the Debtors desired and were entitled to counsel in these contempt proceedings, the prospect of a new trial in both cases obviated the need to address the redundant allegations of judicial bias. My comments above, addressing the merits of these issues, are only intended to clarify that the Debtors' motion to alter or amend on this basis has no merit whatsoever.

Debtors further claim a right to jury trial on their accusation that Judge Matheson is biased, citing Granfinanciera, SA v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). Granfinanciera provides absolutely no support for this contention. That case holds that a party who has not submitted a claim against the bankruptcy estate has the right to a jury trial in a preference action to recover a fraudulent conveyance. The right to a jury trial derives from the fact that fraudulent conveyance actions historically were actions at law, rather than equity, thereby entitling a defendant to a jury trial under the Seventh Amendment. See id. at 43-49, 109 S.Ct. at 2790-2794.

No such analogy can be made here. The judicial disqualification statutes describe the procedure by which, in a pending action, issues concerning the bias or prejudice of a judge are considered. See 28 U.S.C. § 144, 455. These statutes do not provide an independent cause of action for judicial disqualification, much less one to which the right to a jury trial could conceivably attach under the Granfinanciera analysis. The decision whether to grant the request for disqualification in the pending action is that of the presiding judge or another assigned judge, not a jury. See 13A Charles A. Wright et. al., supra, § 3550 at 629. The Debtors' assertion of a right to jury trial under Granfinanciera is patently frivolous.

The Debtors next raise the familiar litany of assertions appearing in numerous pleadings they have filed in this court. They claim: (1) they did not get a fair trail before an impartial judge in state court, (2) two state court of appeals judges were unqualified to issue judgments against them, and (3) Morgan County and the Williams Group filed false proofs of claim against their bankruptcy estate, concealing the fact that the claims were based on state court judgments that had not been revived.

I hasten to point out that these matters have nothing to do with the contempt proceedings at issue in these cases. Again, I address them only to put an end to the Debtors' repeated assertion that no court has ruled on them. First, Debtors have no one to blame but themselves for their failure to have a hearing on the fair trial issue. In their appeal of the adverse state court judgments against them, they failed to file a transcript, and the appeal was dismissed with prejudice. See Winslow v. Williams Group, No. 89-M-1811, slip op. at 2 (D.Colo. May 8, 1990) (explaining the history of the Debtors' state court cases). The state court of appeals' judgment dismissing that appeal is entitled to full faith and credit in this court. Id., slip. op. at 9.

Second, the Debtors argue that two state court of appeals judges hearing a subsequent appeal were improperly appointed. This issue has already been fully addressed by this court:

[Winslow's] argument is based on Winslow's reading of Article VI, section 5(b) of the Colorado Constitution, under which the Chief Justice of the Colorado Supreme Court may "assign any district, probate, or juvenile judge, or retired justice, district, probate or juvenile judge who consents, temporarily to perform judicial duties in any court." Winslow contends that because retired court of appeals judges are not included on this list, they are excluded by omission, and therefore cannot be appointed to serve by the Chief Justice. . . .

. . . .

The Colorado Supreme Court has supervisory power over all inferior state courts under Article VI, section 1 of the Colorado Constitution. Also, the constitutional provision on which Winslow bases his argument was last amended in 1966, three years before the Colorado Court of Appeals was created. Thus, the omission of retired Court of Appeals judges from this list does not evidence an intent to exclude such judges from serving as senior judge. Moreover, this is not the proper forum for Winslow to raise this objection. Any challenge to the makeup of the Court of Appeals panel should have been made in that court.

Id. at 8-9.

Third, the Debtors challenge the proofs of claim filed by two creditors, Morgan County and the Williams Group, claiming they were false and based on judgments not revived under Colorado law. The court has previously held that the claims are presumptively valid. See id. at 5, 7. Whether the judgments underlying these claims were properly revived affects their status as secured or unsecured, the subject of separate rulings by the bankruptcy court not at issue here.

Finally, the Debtors appealed the order containing the above rulings to the Tenth Circuit, which affirmed in all respects. See Winslow v. Williams Group (In re Winslow), 935 F.2d 278 (10th Cir. 1991). Thus, these questions have been fully and finally adjudicated against the Debtors, and the doctrines of res judicata and collateral estoppel bar them from seeking reconsideration of the court's ruling in subsequent actions. In plain English, the Debtors have lost on each of these issues. There is no further relief available. Debtors are advised that the assertion of arguments barred by the doctrines of res judicata or collateral estoppel in future filings in this court, particularly those described above, will be construed as willful contempt and will subject them to sanctions, including but not limited to the striking of the improper pleading. The motion to alter or amend is DENIED.

Debtors additionally move to vacate a hearing in the bankruptcy court set for November 8, 1991, for clarification of this court's order regarding the appointment of an attorney and for the construction of jury boxes in all bankruptcy courts in this district. Further, they have filed an objection to the appointment of attorney Michael E. Katch as their counsel in the contempt proceedings below. The motion for the construction of jury boxes is DENIED as patently meritless. The motion for clarification is GRANTED to the extent that the Debtors are informed that they are not entitled to appointed counsel of their own choosing, United States v. Freeman, 816 F.2d 558, 564 (10th Cir. 1987); United States v. Gipson, 693 F.2d 109, 111 (10th Cir. 1983), cert. denied, 459 U.S. 1216, 103 S.Ct. 1218, 75 L.Ed.2d 455 (1983), and the court may order them to pay for counsel "[i]f at any time after the appointment . . . the court finds [they are] financially able to . . . make partial payment for the representation." 18 U.S.C. § 3006A(c); see id., § 3006A(f). The remaining motions are DENIED, as they concern the ongoing contempt proceedings in the bankruptcy court in which this court will not intervene.