Opinion
Civil No. 9:03-CV-00019 (GLS).
March 21, 2005
DONTIE S. MITCHELL, Pro Se, Southport Correctional Facility, Pine City, New York, for Petitioner.
Bridget Erin Holohan, Esq., Assistant Attorney General, HON. ELIOT SPITZER, New York State Attorney General, Albany, New York, for Respondent.
Memorandum-Decision and Order
I. Introduction
For the second time, petitioner pro se, Dontie S. Mitchell, appeals a nondispositive order of Chief Magistrate Judge Gustave J. DiBianco rejecting a motion for summary judgment. See Dkt. Nos. 30-31. Mitchell's appeal is denied because Judge DiBianco's order is neither clearly erroneous nor contrary to law. Furthermore, since this is the second time that Mitchell has unsuccessfully appealed the identical issue, he is warned that his continued failure to obey court orders may result in sanctions.
II. Facts
In January 2003, Mitchell filed a habeas corpus petition challenging, inter alia, his state court robbery and weapons convictions and his resulting 35 to 70 year prison sentence. Dkt. No. 1; see also 28 U.S.C. § 2254. Simultaneously, he filed a motion for summary judgment. See Dkt. No. 4 (DiBianco Jan. 9, 2003, Order and Attachment).
Mitchell's action was originally co-assigned to District Court Judge Lawrence E. Kahn and Judge DiBianco, and referred to Judge DiBianco. In the Northern District, all actions are co-assigned to district court and magistrate judges. L.R.N.D.N.Y. 40.1, 72.3(a) ("L.R."). State habeas proceedings are referred to the magistrate to review petitions and motions, and to submit a report and recommendation to the district court. See 28 U.S.C. § 636(b)(1) (B-C), Rule 10 of the Habeas Rules 28 U.S.C. foll. § 2254, and L.R. 72.1(a)(c), 72.3(c), and 72.4. Local Rule 72.4(a) requires that habeas petitions be filed in compliance with the habeas rules.
In March 2004, Mitchell's case was reassigned from Judge Kahn to this court, but Judge DiBianco remained the co-assigned magistrate. See Dkt. No. 29.
All magistrate judges are empowered to regulate assigned matters by issuing nondispositive orders. 28 U.S.C. § 636(b)(1)(A). Additionally, Judge DiBianco has been appointed by the Northern District's Chief Judge and Board of Judges to oversee the processing of all litigation. See General Order No. 27 (Oct. 5, 2000). Pursuant to policies adopted by the Board of Judges, Judge DiBianco "is authorized to strike pleadings which fail to conform to . . . [the rules]. . . ." Id.
On January 9, 2003, Judge DiBianco issued an order striking the summary judgment motion filed with Mitchell's initial petition. Dkt. No. 4. In that order, Judge DiBianco explained:
The rules governing habeas corpus actions provide only for a petition and answer, together with supporting documentation from the respondent. 28 U.S.C. fol. Sect. 2254, Rules 2, 5.
No further submissions are authorized except by leave of Court and only when the Court finds that additional submissions are necessary and will serve a useful purpose. 28 U.S.C. fol. Sect. 2254 Rules 6, 7.
Your motion for summary judgment was unauthorized and, thus, inappropriate.Id. (emphasis added).
Unhappy with Judge DiBianco's decision, Mitchell appealed to Judge Kahn. Dkt. Nos. 5, 9-10. In an April 2003 order, Judge Kahn denied Mitchell's appeal, stating:
This application concerns a matter properly referred to a magistrate judge for determination; thus, a district court may reverse the magistrate judge's determination only if it is "clearly erroneous and contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). The "clearly erroneous or contrary to law" standard of review affords the magistrate judge broad discretion and reversal is appropriate only where that discretion is abused. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)
Since the Rules governing habeas petitions provide only for the submission of a petition and answer, see Rules Following 28 U.S.C. § 2254, the rejection of petitioner's summary judgment motion was clearly not an abuse of discretion. Therefore, this Court denies petitioner's appeal and affirms the January Order.
Dkt. No. 8.
In direct violation of Judge DiBianco's earlier order, as affirmed by Judge Kahn, Mitchell once again filed a summary judgment motion in September 2004. See DiBianco Sept. 28, 2004 Order and Attachment. Mitchell's motion was unauthorized, was not preceded by judicial permission, was unnecessary, and served no useful purpose. Accordingly, Judge DiBianco struck the motion. Id.
Again unhappy with Judge DiBianco's order, and despite the fact that Judge Kahn earlier affirmed the identical order, Mitchell appealed once more. Dkt. Nos. 31-32. That appeal is now before the court. III. Analysis
The docket reflects repetitive filings by Mitchell that fail to comply with the Federal Rules, the habeas rules, this District's local rules, and various court orders.
A magistrate judge is authorized by statute to issue orders regarding nondispositive pretrial matters. 28 U.S.C. § 636(b)(1)(A); see also Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). That statutory authority has been specifically delegated to this District's magistrates by the Local Rules, and in the case of Chief Magistrate Judge DiBianco, by General Order. See L.R. 72.1(a)(c), 72.3(c), 72.4, and General Order No. 27 (Oct. 5, 2000).
Here, the pretrial order striking Mitchell's summary judgment motion was nondispositive. The motion was unauthorized by various rules, lacked judicial permission as required by prior court order, was unnecessary, and served no useful purpose. The order neither precluded consideration of the merits of Mitchell's petition nor otherwise disposed of his claims. See Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 74 (N.D.N.Y. 2000) (636(b)(1)(A) identifies dispositive matters, such that anything not included is nondispositive by default).
A district court has the authority to set aside or modify a magistrate judge's nondispositive order. Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A). However, the court will do so only if the order is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); see also American Stock Exchange v. Mopex, Inc., 215 F.R.D. 87 (S.D.N.Y. 2002). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Concrete Pipe and Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). An order is deemed contrary to law "when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d at 74. Given this highly deferential standard, magistrate judges have broad discretion to regulate nondispositive matters, and reversal is warranted only if that discretion is abused. American Stock Exchange, 215 F.R.D. at 87 (S.D.N.Y. 2002)
Judge DiBianco's order was not clearly erroneous. Recognizing that the habeas corpus rules provide for the orderly processing of claims, he first exercised his discretion in January 2003 to preclude Mitchell's summary judgment motion. Generally, a habeas court cannot adjudicate a claim without reviewing the underlying state court record. Thus, this district generally adheres to the requirements set forth in the habeas corpus statutes, the rules governing those statutes, and the Local Rules. First, the petition is judicially reviewed to verify compliance with procedural and substantive requirements, and to determine whether it is subject to summary dismissal. Petitioners are often advised of defects in their petitions and offered an opportunity to supplement or amend. Once the court determines sufficiency, it orders a response and directs that the underlying state court record accompany the answer. Pursuant to the district's standard referral order, the entire record, including any traverse authorized, is then submitted to the co-assigned magistrate judge for report and recommendation. See e.g., 28 U.S.C. §§ 636(b)(1) (B-C), 2242, 2254(b)(1)(A); Habeas Rules 28 U.S.C. foll. § 2254, Rules 2-5, and 9; L.R. 72.1(a)(c), 72.3(c), 72.4, and General Order No. 27. Nothing in this procedure contemplates the disposition of habeas petitions by motion for summary judgment.
Regardless of this District's habeas procedures, it was completely within Judge DiBianco's authority to regulate habeas submissions pursuant to the Local Rules and General Order No. 27. Mitchell was expressly told that he could file no further submissions unless the court first authorized them after finding that they were necessary and served a useful purpose. Moreover, Judge Kahn affirmed that directive in his order following Mitchell's first appeal.
Just as Judge DiBianco's first order survived the clearly erroneous test, so too does the identical order now before this court. Mitchell has now been advised of this ruling twice by the Chief Magistrate Judge and twice by separate District Court Judges. It is in his interest to obey the rulings and orders of this court, and his continued failure to do so may constitute sanctionable conduct.
Although unnecessary, the court briefly addresses the "contrary to law" component of the appellate standard, and the propriety of summary judgment motions in habeas cases. Given the authority already cited, Judge DiBianco's order was not contrary to law. Furthermore, the conclusion would be the same even if the court conducted a de novo review. See Fed.R.Civ.P. 72(a) and (b); see also American Stock Exchange, 215 F.R.D. at 87.
Presuming judicial permission to file a summary judgment motion — a presumption unwarranted in Mitchell's case — this court has previously addressed the propriety of summary judgment and dismissal motions in habeas corpus cases. See Delinois v. Wiley, No. 98CV0084, 2000 WL 33767754 (N.D.N.Y. Feb. 2, 2000) (summary judgment motion); Pizza v. Nash, No. 9:01CV757, 2001 WL 1862808 (N.D.N.Y. Oct. 11, 2001) (motion to dismiss); Harrison v. Mazzuca, No. Civ.900CV1603, 2003 WL 169748 (N.D.N.Y. Jan. 23, 2003) (summary judgment motion).
In Pizza, the court recommended summary dismissal of the government's motion to dismiss, observing that it raised "fundamental procedural issues concerning the processing of habeas petitions in this district." Pizza at * 1. Motions to dismiss or for summary judgment may be appropriate on occasion, but only when the motion circumvents the need for a full review of the underlying record such as a jurisdictional challenge to the court's authority to consider the matter in the first instance. Delanois at * 1; Pizza at * 2. In Mazzuca, this court fully explored the kinds of issues that might benefit from the early filing of such motions. Mazzucca at 1-2. Nothing in the court's analysis suggested, however, that such motions should be routine, or that the court was without power to summarily reject them when inappropriate. In fact, this court did just as Judge DiBianco did in Mitchell's case — summarily rejected them.
Mitchell cites Petition of McShane, 235 F.Supp. 262 (N.D. Mississippi 1964) in support of his right to file a summary judgment motion. Nothing in McShane alters the fundamental observation that in the appropriate case, such a motion may be warranted. Mitchell's problem is that his is not such a case as he has now been told four times.
IV. Conclusion
Based upon the foregoing, it is hereby
ORDERED that the appeal (Dkt. No. 31) of petitioner, Dontie S. Mitchell, from the September 28, 2004, order of Chief Magistrate Judge Gustave J. DiBianco (Dkt. No. 30) is DENIED, and it is further
ORDERED that the Clerk of Court serve a copy of this Memorandum-Decision and Order on the parties.