Foley v. Fix, 106 F.3d 556 (4th Cir. 02/04/1997)

[1] U.S. Court of Appeals, Fourth Circuit


[2] No. 95-8587


[4] decided: February 4, 1997.


[5] FREDERICK LYNWOOD FOLEY, PLAINTIFF-APPELLANT,
v.
MS. C. FIX; SERGEANT SANTIAGO; MS. SWISHER, DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, District Judge. (CA-95-1341-R).


[7] Frederick Lynwood Foley, Appellant Pro Se.


[8] Before Russell, Luttig, and Williams, Circuit Judges.


[9] Per Curiam:


[10] This court goes to great lengths to ensure that its doors are open to all appellants, particularly those who proceed in forma pauperis. However, when one party repeatedly brings frivolous appeals in abuse of our processes, he burdens this court's ability to provide a fair and speedy process to those with legitimate appeals. Frederick Lynwood Foley, an inmate in the Augusta Correctional Center (ACC), has now brought his twenty-third appeal in this court in just over a year. The one characteristic that all of these appeals have in common is that we have consistently, and summarily, affirmed the district court's dismissals or grants of summary judgment. Furthermore, the district court has warned Foley on more than one occasion that he would be subject to sanctions if he continued to harass correctional officers by filing frivolous claims that those officers have taken his personal property without due process of law. Notwithstanding this warning, Foley has again brought suit claiming, inter alia, that Sgt. Santiago took his personal property without due process of law. The district court appropriately dismissed this claim as "utterly frivolous." Because Foley's repeated, frivolous claims have placed a significant burden on this court, as well as on the district court, we ordered Foley to show cause why he should not be sanctioned for filing frivolous appeals. Having reviewed his response, we hereby impose sanctions upon Foley pursuant to Federal Rule of Appellate Procedure 38.


[11] Foley has presented this court with a multitude of claims over the past year-and-a-half, ranging from complaints about his housing to allegations that he was given improper medication. Foley's most recurrent allegation is that prison officials have taken his property. He has claimed that officials have stolen items such as earplugs, bubble gum, mayonnaise packets, and cheese spread. Foley v. Wood, No. 95-0691-R (W.D.Va. July 17, 1995) (earplugs); Foley v. Boyers, No. 95-0765-R (W.D.Va. Aug. 3, 1995) (bubble gum, mayonnaise packets, cheese spread). On at least seven occasions (including the case now on appeal), the district court has dismissed these claims as frivolous and quoted the following language:


[12] "an intentional . . . deprivation of property by a state employee does not violate the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984). Inasmuch as plaintiff possesses tort remedies under Virginia state law, see Virginia Code § 8.01-195.3, it is clear that he cannot prevail in a constitutional claim for the alleged property loss in the instant case.


[13] Foley v. Fix, No. 95-1341-R (W.D.Va. Dec. 19, 1995); Foley v. Holloway, No. 95-1167-R (W.D.Va. Oct. 26, 1995); Foley v. Boyer, No. 95-0983-R (W.D.Va. Sept. 5, 1995); Foley v. Boyers, No. 95-0765-R (W.D.Va. Aug. 3, 1995); Foley v. Wood, No. 95-0691-R (W.D.Va. July 17, 1995); Foley v. Starkey, No. 95-C268-R (W.D.Va. Mar. 21, 1995); Foley v. Talbert, No. 95-0211-R (W.D.Va. Mar. 6, 1995). Because Foley continued to bring § 1983 claims for property deprivation rather than pursue state tort remedies, the district court notified Foley "that he may be sanctioned for filing frivolous pleadings if he continued to bring property deprivation claims" in the district court. Foley v. Boyer, No. 95-0983-R (W.D.Va. Sept. 5, 1995). When Foley again brought such a claim, the district court notified Foley that "if he again files a lawsuit under § 1983, claiming that correctional officers have taken his personal property without due process, the court shall assume that he is filing that lawsuit with the sole purpose of harassing the defendants. The court shall then direct him to show cause why monetary sanctions should not be imposed under Rule 11." Foley v. Holloway, No. 95-1167-R (W.D.Va. Oct. 26, 1995). Despite the district court's clear warnings, Foley has again claimed that a prison official intentionally deprived him of property. As the district court has pointed out, "Foley is well aware from past opinions in his cases" that such an allegation fails to state a claim under § 1983. Foley v. Fix, No. 95-1341-R (W.D.Va. Dec. 19, 1995). In light of the district court's clear and consistent holdings that Foley's property deprivation claims have been frivolous and this court's affirmance of those holdings, Foley's frequent appeals of these and other frivolous claims warrant the imposition of sanctions under Federal Rule of Appellate Procedure 38.


[14] Furthermore, Foley's frivolous appeals of other claims bolster our Conclusion that sanctions are not only appropriate, but also necessary to stem Foley's frivolous appeals. For example, Foley brought a wrongful conviction claim because the reporting officer said that the strips of cloth which gave rise to Foley's destruction of state property charge came from a pillow, when Foley had instead (as evidenced by Foley's own complaint) cut them from a mattress. The district court dismissed this claim as frivolous. Foley v. Talbert, No. 95-0688-R (W.D.Va. July 17, 1995). The district court also denied as "utterly frivolous" Foley's request for a temporary restraining order against a correctional officer who allegedly "rakes through[Foley's] bag of Rolaids and his legal papers, looking for contraband." Foley v. Starkey, No. 95-C268-R (Mar. 21, 1995). The district court noted that the request had "the ring of a kindergartner tattling to his teacher." Id. Similarly, Foley brought a § 1983 claim alleging that the broken light over the sink in his cell gave him insufficient light to floss his teeth and shave. Foley v. Huffman, No. 95-1013-R (W.D.Va. Sept. 12, 1995).


[15] Ironically, Foley's persistent petitioning has become a source of a whole series of additional frivolous claims by Foley. For example, Foley brought a frivolous claim that the chief security officer at Augusta Correctional Center had an obligation to prosecute an institutional charge against another inmate who allegedly wanted to charge Foley money for helping him with legal work. Foley v. Day, No. 95-0269-R (W.D.Va. Mar. 21, 1995). Also, when Foley claimed that correctional officers retaliated against him for his previously filed lawsuits by requiring him to stand next to his bed for "count" (a procedure in which prison officials count the inmates), Foley had to admit that he stayed up nights writing new petitions and therefore was too tired to get up in the morning for "count." This prompted the district court to quip, "although the court recognizes Foley's heavy caseload, no constitutional rights are implicated by requiring Foley to stand next to his bed in the morning." Foley v. Gettier, No. 94-0536-R (W.D.Va. July 17, 1995).


[16] Foley has magnified the costs of his frivolous litigation by persistently appealing his claims after they have been dismissed as frivolous. And it is obvious that the mere threat of sanctions has not caused Foley to restrain himself.


[17] Under F.R.A.P. 38, we are authorized to impose sanctions upon appellants for the filing of frivolous appeals. Bast v. Cohen, Dunn & Sinclair, PC, 59 F.3d 492 (4th Cir. 1995). F.R.A.P. 38 provides:


[18] If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.


[19] Such "just damages" and "costs," include "damages, attorney's fees and other expenses incurred by an appellee if the appeal is frivolous," regardless of whether "the appeal resulted in delay." F.R.A.P. 38, Advisory Committee Notes. We are authorized to award such damages and costs "in [our] discretion in the case of a frivolous appeal as a matter of Justice to the appellee and as a penalty against the appellant." Id.


[20] Here, we ordered appellant to show cause as to why he should not be sanctioned for filing a frivolous appeal, thereby providing him with "notice from the court and reasonable opportunity to respond." F.R.A.P. 38. Having reviewed the appellant's response to our order, we now conclude that the appeal was indeed "frivolous," and therefore impose the following sanctions upon the appellant. In lieu of particularized fees and costs, we award the amount of $500 to the appellees, as we have frequently done in similar circumstances. See, e.g., Peeples v. Commissioner of Internal Revenue, No. 87-1053 (4th Cir. Sept. 23, 1987) (unpublished); Leining v. Commissioner, No. 86-1253 (4th Cir. July 21, 1987) (unpublished); United States v. Bowser, No. 86-1241 (4th Cir. April 22, 1987) (unpublished); United States v. Wissig, No. 86-1188 (4th Cir. Dec. 29, 1986) (unpublished); Chapman v. Egger, No. 86-2151 (4th Cir. Oct. 21, 1986) (unpublished); Jensen v. United States, No. 86-1504 (4th Cir. June 25, 1986) (unpublished), motion for accounting and cert. denied, 479 U.S. 924 (Oct. 20, 1986). This money shall be payable to the Warden of the Augusta Correctional Center in his official capacity. Additionally, following a practice adopted in one of our sister circuits, we enjoin appellant from filing any further civil actions in this court until these monetary sanctions are paid, and unless a district court Judge certifies that his claim is not frivolous. See Smith v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991) (ordering that petitioner "be barred from filing any further appeals in this court until (1) the sanctions awarded by this court and the district court are fully paid; and (2) a district court certifies his appeal as having some arguable merit"); cf. Shieh v. Kakita, 134 L. Ed. 2d 464, 116 S. Ct. 1311 (1996) (directing "the Clerk not to accept any further petitions for certiorari from [appellant] in noncriminal matters unless he pays the docketing fee required by [Supreme Court] Rule 38 and submits his petition in compliance with [Supreme Court] Rule 33.1"); Jones v. ABC-TV, 134 L. Ed. 2d 1, 116 S. Ct. 870 (1996) (same); Attwood v. Singletary, 133 L. Ed. 2d 721, 116 S. Ct. 769 (1996) (same); Whitaker v. Superior Court of California, San Francisco County, 131 L. Ed. 2d 324, 115 S. Ct. 1446 (1995) (same).


[21] It is so ordered

Autry v. Woods, 106 F.3d 61 (4th Cir. 02/04/1997)

[1] UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT


[2] No. 96-6112, No. 96-6254, No. 96-6378


[4] decided: February 4, 1997.


[5] TIMOTHY CARNESS AUTRY, PLAINTIFF-APPELLANT,
v.
PHYLLIS B. WOODS; RICHARD HEATH; CHARLES G. RAYNOR, SR., DEFENDANTS-APPELLEES. TIMOTHY CARNESS AUTRY, PLAINTIFF-APPELLANT, V. PHYLLIS B. WOODS; RICHARD HEATH; CHARLES G. RAYNOR, SR., DEFENDANTS-APPELLEES. TIMOTHY CARNESS AUTRY, PLAINTIFF-APPELLANT, V. PHYLLIS B. WOODS; RICHARD HEATH; CHARLES G. RAYNOR, SR., DEFENDANTS-APPELLEES.


[6] Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CA-94-40-5-CT-F).


[7] Timothy Autry, Appellant Pro Se.


[8] Jane Ray Garvey, OFFICE OF THE ATTORNEY GENERAL, Raleigh, North Carolina, for Appellees.


[9] Before Russell, Luttig, and Williams, Circuit Judges.


[10] Per Curiam:


[11] Petitioner Timothy Autry has been incarcerated since 1986 for his commission of first degree rape. During commission of this offense, Autry impersonated a police officer, "arrested" and handcuffed sixteen-year-old Nena Charlene Faircloth, drove her to a secluded location in the woods, and then repeatedly raped and sodomized her. Since his incarceration, Autry has filed at least fifteen actions in district court, most of them pursuant to 42 U.S.C. § 1983. Autry has appealed to this circuit ten times since 1987. None of Autry's claims has ever proved to have merit and many have been labeled by this court and the district court as "frivolous." Because addressing Autry's repeated, frivolous claims have placed a significant burden on this court, as well as on the district court, we ordered Autry on May 16, 1996, to show cause why he should not be sanctioned for filing this most recent section 1983 claim. Having reviewed his response, we hereby impose sanctions upon Autry pursuant to Federal Rule of Appellate Procedure 38.


[12] Nearly half of Autry's lawsuits have been transparent personal attacks on female correctional, law enforcement, or judicial employees. In most of these complaints, Autry has alleged, sometimes in graphic detail, that he and the defendant had a sexual or romantic relationship. In some of his complaints, Autry has claimed that female magistrates treated him harshly because of his relationships with them. See, e.g., Complaint, 84-1059-CRT (E.D.N.C. 1984) (accusing magistrate of using "her position . . . in an unethical way, and by way of self-satisfaction of having a sexual relationship with [Autry]"); Complaint, 84-1062-CRT (E.D.N.C. 1984) (alleging that the magistrate set an improper bond "due to [Autry's] involvement with [the magistrate]"). In one case, for example, Autry alleged that a female magistrate was in love with him and, as a result, had written him several letters in which she supposedly claimed to be involved in "a Terrorist Group called the Omega Seven," confessed to sending a mail bomb that killed a United States Circuit Judge, and threatened to kill her husband. Complaint, Autry v. Dahnke, 90-165-CRT (E.D.N.C. 1990). The district court dismissed Autry's complaint, terming it "frivolous." Autry v. Dahnke, 90-165-CRT at 2 (E.D.N.C. 1990). Autry appealed the district court's decision, and we dismissed the appeal, holding that Autry's case was meritless. See Autry v. Dahnke, No. 90-6074 (4th Cir. Aug. 14, 1990) (unpublished).


[13] In still other lawsuits, Autry has accused female police and correctional officers of sexual misconduct. See, e.g., Complaint, 88-232-CRT, (E.D.N.C. 1988) (making allegations, inter alia, of prostitution, narcotics possession, and murder against a female correctional officer); Complaint, 86-874-CRT (E.D.N.C. 1986) (alleging that a female officer had given Autry nude pictures of herself, and worked "as a call girl on the weekends").


[14] The claims in the present case are strikingly similar to those found in Autry's previous actions. Here, Autry brought a section 1983 claim against the prison warden, alleging that the female warden engaged in various sexual escapades with Autry and then offered him money to kill her husband. A representative paragraph from Autry's complaint reads as follows:


[15] After entering defendant Wood's office, she placed a Brown chair diagonally across her desk and asked me to have a seat. Defendant woods then moved her chair, so she would be facing me, and then placed her right hand on my left thigh. Before I could respond Defendant woods ran her hand along my thigh up to my groin area and started fondling my penis. Defendant woods began to unbutton my pants and withdraw my penis and then place her mouth over my penis and performed oral sex on me. After ejaculating defendant Woods Re-Buttoned my pants and stated "I have often fantasized about having sex in my office." She then went on to say that I could have a Blow-Job and more if I would help her do something."


[16] [At a subsequent encounter Woods] allowed me to have vaginal intercourse with her. [Woods later] agreed to have anal intercourse with me. As I started to penetrate her she cried out "please don't your tearing me open," so I stopped. Defendant Woods stated that she could not take all (9) Nine Inches. After we put on our clothes Defendant Wood said again how Important it was to have her husband killed.


[17] Complaint, Woods v. Autry, No. 5:94 Civ. 40-F at 9, 11 (E.D.N.C. 1995) (errors and emphasis in original). Since the filing of Autry's petition, numerous persons have filed affidavits with the court establishing the falsity of the allegations. Two inmates, for example, have come forward on separate occasions and, through written letters or oral communications to defendant Woods, have related that Autry told them that his attack on Ms. Woods stems from a desire to have her fired or to force her to resign. See J.A., In Camera Exhibits A & B. Autry's actions in this case appear especially frivolous and malicious in light of the fact that, in documents filed in North Carolina state court in two previous civil lawsuits, Autry has graphically alleged that the defendant in this case had sexual intercourse with three correctional officers, her supervisors, various unnamed inmates, and had a lesbian affair with a female staffer. See J.A. Vol. II, No. 50 at 2.


[18] Notwithstanding the repeated warnings of both the district court and this circuit, Autry has continued to abuse the legal process by invoking that process in order to sexually harass the women within the legal system with whom he comes into contact. On May 16, 1996, this court ordered Autry to show cause why sanctions should not be entered against him for the filing of this suit, thereby providing him with "notice from the court and reasonable opportunity to respond." F.R.A.P. 38. Having reviewed appellant's response to our order, we now conclude that the appeal was indeed "frivolous," and therefore impose upon Autry the following sanctions. In lieu of particularized fees and costs, we award the amount of $500 to the appellees, as we have frequently done in similar circumstances. See, e.g., Peeples v. Commissioner of Internal Revenue, No. 87-1053 (4th Cir. Sept. 23, 1987) (unpublished); Leining v. Commissioner, No. 86-1253 (4th Cir. July 21, 1987) (unpublished); United States v. Bowser, No. 86-1241 (4th Cir. April 22, 1987) (unpublished); United States v. Wissig, No. 86-1188 (4th Cir. Dec. 29, 1986) (unpublished); Chapman v. Egger, No. 86-2151 (4th Cir. Oct. 21, 1986) (unpublished); Jensen v. United States, No. 86-1504 (4th Cir. June 25, 1986) (unpublished), motion for accounting and cert. denied, 479 U.S. 924 (Oct. 20, 1986). This money shall be payable to Phyllis B. Woods in her official capacity. Additionally, following a practice adopted in one of our sister circuits, we enjoin appellant from filing any further civil appeals in this court until these monetary sanctions are paid, and unless a district court Judge certifies that his claim is not frivolous. See Smith v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991) (ordering that petitioner "be barred from filing any further appeals in this court until (1) the sanctions awarded by this court and the district court are fully paid; and (2) a district court certifies his appeal as having some arguable merit"); cf. Shieh v. Kakita, 134 L. Ed. 2d 464, 116 S. Ct. 1311 (1996) (directing "the Clerk not to accept any further petitions for certiorari from appellant in noncriminal matters unless he pays the docketing fee required by [Supreme Court] Rule 38 and submits his petition in compliance with [Supreme Court] Rule 33.1"); Jones v. ABC-TV, 134 L. Ed. 2d 1, 116 S. Ct. 870 (1996) (same); Attwood v. Singletary, 133 L. Ed. 2d 721, 116 S. Ct. 769 (1996) (same); Whitaker v. Superior Court of California, San Francisco County, 131 L. Ed. 2d 324, 115 S. Ct. 1446 (1995) (same).


[19] It is so ordered



--------------------------------------------------------------------------------

Vestal v. Clinton, 106 F.3d 553 (4th Cir. 02/04/1997)

[1] U.S. Court of Appeals, Fourth Circuit


[2] No. 96-6089


[4] decided: February 4, 1997.


[5] DANNY ALAN VESTAL, PLAINTIFF-APPELLANT,
v.
BILL CLINTON; JAMES B. HUNT, DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Middle District of North Carolina, at Salisbury. James A. Beaty, Jr., District Judge. (CA-95-752).


[7] Danny Alan Vestal, Appellant Pro Se.


[8] Before Russell, Luttig, and Williams, Circuit Judges.


[9] Per Curiam:


[10] Danny Alan Vestal is before us as plaintiff/appellant for the seventh time within a year. All of Vestal's claims in the past have been totally frivolous. This appeal is no exception. Vestal now argues that the President of the United States and the Governor of North Carolina are "breaking the Laws of God" by swearing oaths on the New Testament upon taking office. Complaint at 3. Vestal concludes that, as a result of this action by President Clinton and Governor Hunt, Vestal is "suffering undue punishment and distress because the defendants are breaking the Law of God in speaking and conspiring against the Holy Commandments resulting in plagues upon this nation and my situation." Complaint at 3-4 (internal Biblical citations omitted). Vestal adds, for good measure, that "the defendants should be visiting the prisons." Complaint at 3. Because of the utter frivolousness of this appeal, we impose sanctions upon Vestal pursuant to Federal Rule of Appellate Procedure 38.


[11] Vestal began his pro se legal career claiming that during his incarceration at Davidson Correctional Center in Lexington, North Carolina, he was subjected to cruel and unusual punishment and that his First Amendment right to religious freedom was violated because he was denied his request to visit his terminally ill grandmother. Vestal claimed that these alleged violations entitled him to $3,000,000 in damages. The district court dismissed the action as frivolous, and this court affirmed. Vestal v. Freeman, 1995 WL 551277 (4th Cir.).


[12] Next, Vestal brought an action under 28 U.S.C. § 1983 claiming that understaffing at the Davidson Correctional Center created stress and overwork for guards. Neither Vestal's concern for the prison guards nor his general request for "better security" lifted this claim above the realm of the frivolous. The district court dismissed Vestal's claim as such, and we affirmed. Vestal v. Murphy, 1995 WL 607816 (4th Cir.).


[13] In Vestal's next challenge to the conditions of his incarceration, he claimed a constitutional right, under the Privileges and Immunities Clause, to the amenities enjoyed by other state and federal inmates, such as better televisions, computers for personal use, private rooms, and air conditioning. Again, this court affirmed the district court's dismissal of the complaint as frivolous. Vestal v. Hunt, 1995 WL 734447 (4th Cir.).


[14] Vestal later claimed that as a member of the prison road squad he was denied access to certain educational programs which were available to other prisoners, thus leaving his rehabilitation needs unsatisfied. Again, the district court dismissed the complaint as frivolous, and this court affirmed. Vestal v. Freeman, 1995 WL 739393 (4th Cir.).


[15] Undaunted by his lack of success on his prior claims, Vestal then brought a claim alleging that the practice of psychology is a religion and that, as a result, the prison's employment of psychologists violated his First Amendment rights. Within three months, Vestal brought another claim, again contending that psychological counseling violated his religious rights and contending that the prison's refusal to promote him to a higher custody status (because he would not submit to the counseling) violated his First Amendment rights. In both of these actions, the district court dismissed the claims as frivolous, and this court again affirmed. Vestal v. Brown, 1995 WL 734450 (4th Cir.); Vestal v. Freeman, 1995 WL 739397 (4th Cir.).


[16] Vestal's current effort to obtain adjudication of "God's Law" in this court is another example of Vestal's disregard for the limited resources (and limited jurisdiction) of this court. Despite the repeated and consistent holdings by this court and the district court that Vestal's claims are frivolous, Vestal continues to file such suits. Accordingly, we ordered Vestal to show cause why he should not be sanctioned under Federal Rule of Appellate Procedure 38.


[17] Under F.R.A.P. 38, we are authorized to impose sanctions upon appellants for the filing of frivolous appeals. Bast v. Cohen, Dunn & Sinclair, PC, 59 F.3d 492 (4th Cir. 1995). F.R.A.P. 38 provides:


[18] If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.


[19] Such "just damages" and "costs," include "damages, attorney's fees and other expenses incurred by an appellee if the appeal is frivolous," regardless of whether "the appeal resulted in delay." F.R.A.P. 38, Advisory Committee Notes. We are authorized to award such damages and costs "in [our] discretion in the case of a frivolous appeal as a matter of Justice to the appellee and as a penalty against the appellant." Id.


[20] Here, we ordered the appellant to show cause as to why he should not be sanctioned for filing a frivolous appeal, thereby providing him with "notice from the court and reasonable opportunity to respond." F.R.A.P. 38. Having reviewed the appellant's response to our order, we conclude that the appeal was indeed "frivolous," and therefore impose the following sanctions upon the appellant. In lieu of particularized fees and costs, we award the amount of $500 to the appellees, as we have frequently done in similar circumstances. See, e.g., Peeples v. Commissioner of Internal Revenue, No. 87-1053 (4th Cir. Sept. 23, 1987) (unpublished); Leining v. Commissioner, No. 86-1253 (4th Cir. July 21, 1987) (unpublished); United States v. Bowser, No. 86-1241 (4th Cir. April 22, 1987) (unpublished); United States v. Wissig, No. 86-1188 (4th Cir. Dec. 29, 1986) (unpublished); Chapman v. Egger, No. 86-2151 (4th Cir. Oct. 21, 1986) (unpublished); Jensen v. United States, No. 86-1504 (4th Cir. June 25, 1986) (unpublished), motion for accounting and cert. denied, 479 U.S. 924 (Oct. 20, 1986). Half of this amount shall be made payable for deposit in an appropriate account of the United States Government, and the other half shall be made payable for deposit in an appropriate account of the State of North Carolina. Additionally, following a practice adopted in one of our sister circuits, we now enjoin appellant from filing any further civil actions in this court until these monetary sanctions are paid, and unless a district court Judge certifies that his claim is not frivolous. See Smith v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991) (ordering that petitioner "be barred from filing any further appeals in this court until (1) the sanctions awarded by this court and the district court are fully paid; and (2) a district court certifies his appeal as having some arguable merit"); cf. Shieh v. Kakita, 134 L. Ed. 2d 464, 116 S. Ct. 1311 (1996) (directing "the Clerk not to accept any further petitions for certiorari from [appellant] in noncriminal matters unless he pays the docketing fee required by [Supreme Court] Rule 38 and submits his petition in compliance with [Supreme Court] Rule 33.1"); Jones v. ABC-TV, 134 L. Ed. 2d 1, 116 S. Ct. 870 (1996) (same); Attwood v. Singletary, 133 L. Ed. 2d 721, 116 S. Ct. 769 (1996) (same); Whitaker v. Superior Court of California, San Francisco County, 131 L. Ed. 2d 324, 115 S. Ct. 1446 (1995) (same).


[21] It is so ordered

In re Vincent, 105 F.3d 943 (4th Cir. 02/04/1997)

[1] UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT


[2] No. 96-508


[4] decided: February 4, 1997.


[5] IN RE: ALFRED J. VINCENT, PETITIONER.


[6] On Petition for Writ of Mandamus. (CA-75-23-W).


[7] Alfred J. Vincent, Petitioner Pro Se.


[8] Before Russell, Luttig, and Williams, Circuit Judges.


[9] Per Curiam:


[10] Petitioner Dr. Alfred J. Vincent has now appeared before this court twenty times, repeatedly asking us to revisit litigation that was finally decided on the merits years ago. Most recently, Vincent filed a petition for a writ mandamus, which we denied. In Re Vincent, 86 F.3d 1154 (4th Cir. 1996). On May 16, 1996, we ordered Vincent to show cause as to why we should not sanction him for filing this mandamus petition. Today, having reviewed his response, we impose sanctions on Vincent, pursuant to Federal Rule of Appellate Procedure 38, for filing this mandamus petition, which we find to be utterly frivolous.


[11] This mandamus action, as well as the nineteen other appeals prosecuted in this court by Vincent, all originated with three unsuccessful lawsuits brought by Vincent between 1975 and 1991. In 1975, Vincent sued his then-employer Reynolds Memorial Hospital for breach of contract and tortious interference with contract. Six years later, he filed a separate suit against Reynolds Memorial Hospital alleging illegal restraint of trade and conspiracy to monopolize. These two suits were consolidated and, after protracted litigation, the trial court granted a directed verdict in favor of Reynolds, which we affirmed. Vincent v. Reynolds Memorial Hospital, 930 F.2d 913 (4th Cir. 1991). In 1988, Vincent sued an attorney who represented Vincent's former patient in a medical malpractice suit against Vincent and the doctor who appeared as an expert witness in that suit, claiming malicious prosecution and abuse of process. District Court Judge Robert Maxwell granted summary judgment in favor of the defendants, and we affirmed. Vincent v. McCamic & McCamic, 945 F.2d 399 (4th Cir. 1991). Finally, in 1991, Vincent petitioned for removal to federal court of a case in which Reynolds sought to satisfy a lien held by Reynolds against Vincent. District Court Judge Maxwell dismissed this petition for lack of jurisdiction because it was untimely filed, and again, we affirmed.


[12] From this core of cases, Vincent has launched an all-out assault on the federal court system, in a vain effort to have his original cases reopened. As we have repeatedly said, Vincent's recurrent actions before this court are nothing more than "an attempt to resubmit claims to a federal court that were decided in an earlier state court action," Vincent v. C&P Telephone Co., 57 F.3d 1067 (4th Cir. 1995), "to press the same claims undaunted" even though they have already been decided "several times" and even though the situation "has not changed," Reynolds Memorial Hospital v. Vincent, 14 F.3d 596, and "to have the district court re-open this litigation on its merits" even though there was "no ground for revisiting the merits," Vincent v. Reynolds Memorial Hospital, 14 F.3d 598.


[13] In his recent mandamus petition, Vincent made several requests which have been repeatedly rejected by this court. Vincent requested that District Court Judge Maxwell be disqualified from hearing all cases involving him. We rejected this request, In Re: Vincent, 86 F.3d 1154 (4th Cir. 1996) ("Vincent's petition for mandamus is meritless."), just as we have rejected it and similar requests on numerous other occasions. See Vincent v. Reynolds Memorial Hospital, 8 F.3d 822 (4th Cir. 1993) (denying Vincent's motion "to recuse Judge Maxwell"); In Re: Vincent, 972 F.2d 344 (4th Cir. 1992) (dismissing Vincent's "mandamus petition seeking an order directing that Judge Maxwell recuse himself"); Vincent v. McCamic & McCamic, 945 F.2d 399 (4th Cir. 1991) (finding "no abuse of discretion in Judge Maxwell's refusal to recuse himself"); Vincent v. Ohio Valley Medical Center, 905 F.2d 1533 (4th Cir. 1990) (dismissing Vincent's "motion to order the recusal of Judge Kidd"); Vincent v. Reynolds Memorial Hospital, 881 F.2d 1070 (4th Cir. 1989) (denying Vincent's mandamus petition "seeking a writ ordering Judge Maxwell and Judge Kidd to disqualify themselves from presiding over any of Vincent's cases on the ground that they are biased against him"). Vincent also moved that we dismiss his appeal in No. 81-1513 . We denied this motion as well, In Re Vincent, 86 F.3d 1154, just as we had denied an identical motion brought by Vincent just last year. In Re: Vincent, 68 F.3d 463 ("denying Vincent's motion to dismiss his appeal in No. 81-1513 "). We also denied Vincent's motion for certification of certain vague questions to the Supreme Court, another motion that forms a staple of Vincent's core of claims repeatedly brought in this court. See In Re: Vincent, 68 F.3d 463; Vincent v. Reynolds Memorial Hospital, 930 F.2d 913.


[14] In fact, in this mandamus petition, Vincent raised only one issue that he has not previously raised before this court: Vincent moved that all members of this court be recused from hearing any further actions involving him, and instead, that an independent committee be set up to decide all of his cases. Needless to say, we denied this motion as well. In Re Vincent, 86 F.3d 1154.


[15] But to simply recite the number of times that Vincent has filed actions in this court (twenty), and the repetitive and frivolous nature of those actions, only begins to describe the enormous amount of time that has been consumed in addressing these actions. Each of Vincent's appeals generally raises not just one or two claims, but a litany of them, each of which theoretically requires response. For example, in this mandamus petition, in addition to asking that Judge Maxwell be recused, Vincent moved that he be appointed counsel; that all members of this court be recused; that a separate tribunal be set up to address his claims; that we dismiss a previous appeal; that questions be certified to the Supreme Court; that the district court's judgment be vacated; and that he be granted a hearing en banc -- a total of eight separate matters that we were required to address.


[16] Even more of this court's resources are consumed in distilling exactly what issues Vincent is raising, because his voluminous pleadings comprise scores of pages, apparently prepared by Vincent himself, containing incoherent and rambling arguments ostensibly setting forth and supporting his claims. In the instant mandamus petition for which we impose sanctions, Vincent's pleadings were 152 pages long. They included a 56-page petition for mandamus, a 10-page "Memorandum in Support of Subsidiary Motions," a 10-page "Preamble and Brief," a 15-page supplement to his petition for mandamus, a 27-page batch of "exhibits," and a 34-page "Amended Brief." His response to our order to show cause why he should not be sanctioned contained an additional 154 pages, including a 24-page "Response to 5-16-96 Order to Show Cause," a 39-page "Supplementary Response to 5-16-96 Order to Show Cause," a 14-page "Motion to Strike 5-16-96 Order to Show Cause," a 4-page "Motion to Strike or Vacate 5-16-96 Order to Show Cause," a 19-page "Brief in Support of Motion to Strike or Vacate 5-16-96 Order to Show Cause," and 54 more pages of "Exhibits."


[17] Because our uniform, summary rejection of Vincent's claims have failed to stem the tide of Vincent's filings in this court, we are forced to resort to more direct action against Vincent.


[18] Under F.R.A.P. 38, we are authorized to impose sanctions upon appellants for the filing of frivolous appeals. Bast v. Cohen, Dunn & Sinclair, PC, 59 F.3d 492 (4th Cir. 1995). F.R.A.P. 38 provides:


[19] If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.


[20] Such "just damages" and "costs," include "damages, attorney's fees and other expenses incurred by an appellee if the appeal is frivolous," regardless of whether "the appeal resulted in delay." F.R.A.P. 38, Advisory Committee Notes. We are authorized to award such damages and costs "in [our] discretion in the case of a frivolous appeal as a matter of Justice to the appellee and as a penalty against the appellant." Id.


[21] Here, we ordered Vincent to show cause as to why he should not be sanctioned for filing a frivolous appeal, thereby providing him with "notice from the court and reasonable opportunity to respond." F.R.A.P. 38. Having reviewed his response to our order, we now conclude that the appeal was indeed "frivolous," and therefore impose the following sanctions upon Vincent. In lieu of particularized fees and costs, we order Vincent to pay sanctions in the amount of $500, as we have frequently done in analogous circumstances. See, e.g., Peeples v. Commissioner of Internal Revenue, No. 87-1053 (4th Cir. Sept. 23, 1987) (unpublished); Leining v. Commissioner, No. 86-1253 (4th Cir. July 21, 1987) (unpublished); United States v. Bowser, No. 86-1241 (4th Cir. April 22, 1987) (unpublished); United States v. Wissig, No. 86-1188 (4th Cir. Dec. 29, 1986) (unpublished); Chapman v. Egger, No. 86-2151 (4th Cir. Oct. 21, 1986) (unpublished); Jensen v. United States, No. 86-1504 (4th Cir. June 25, 1986) (unpublished), motion for accounting and cert. denied, 479 U.S. 924 (Oct. 20, 1986). As this is a mandamus action, the proper appellee is the court itself, see Ex Parte Fahey, 332 U.S. 258, 91 L. Ed. 2041, 67 S. Ct. 1558 (1947) (mandamus actions "have the unfortunate consequence of making the Judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him."), and so the monetary sanctions are payable to the clerk of the court. Additionally, following a practice adopted in one of our sister circuits, we enjoin Vincent from filing any further civil actions in this court until such time as these monetary sanctions are paid, and unless a district court Judge certifies that his claim is not frivolous. See Smith v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991) (ordering that petitioner "be barred from filing any further appeals in this court until (1) the sanctions awarded by this court and the district court are fully paid; and (2) a district court certifies his appeal as having some arguable merit"); cf. Shieh v. Kakita, 134 L. Ed. 2d 464, 116 S. Ct. 1311 (1996) (directing "the Clerk not to accept any further petitions for certiorari from [appellant] in noncriminal matters unless he pays the docketing fee required by [Supreme Court] Rule 38 and submits his petition in compliance with [Supreme Court] Rule 33.1"); Jones v. ABC-TV, 134 L. Ed. 2d 1, 116 S. Ct. 870 (1996) (same); Attwood v. Singletary, 133 L. Ed. 2d 721, 116 S. Ct. 769 (1996) (same); Whitaker v. Superior Court of California, San Francisco County, 131 L. Ed. 2d 324, 115 S. Ct. 1446 (1995) (same).


[22] It is so ordered



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Brock v. Angelone, 105 F.3d 952 (4th Cir. 02/04/1997)

[1] UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT


[2] No. 96-6116


[4] decided: February 4, 1997.


[5] ROBERT LEE BROCK, A/K/A TWO SOULS WALKER, PLAINTIFF-APPELLANT,
v.
RONALD ANGELONE, DEFENDANT-APPELLEE.


[6] Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca B. Smith, District Judge. (CA-95-1194-2).


[7] Robert Lee Brock, Appellant Pro Se.


[8] Before Russell, Luttig, and Williams, Circuit Judges.


[9] Per Curiam:


[10] Appellant, Robert Lee Brock, a.k.a. Two Souls Walker, a Virginia inmate, lodged twenty-nine appeals before this court in 1995-96 alone, making him one of, if not the most frequent litigants in this circuit. Virtually all of Brock's actions originate as complaints under 42 U.S.C. § 1983, in which Brock complains about some aspect of prison conditions. None of Brock's allegations have ever been found by any court to have any merit. Because Brock's repeated, frivolous claims have placed a significant burden on this court, as well as on the district court, we ordered Brock on May 16, 1996, to show cause why he should not be sanctioned for filing this most recent appeal. Having reviewed his response, we hereby impose sanctions upon Brock pursuant to Federal Rule of Appellate Procedure 38.


[11] Brock has a history of filing frivolous appeals in an apparent effort to undermine the legal system that incarcerated him. Over the course of his litigious history, Brock has complained about all aspects of his legal treatment and prison conditions including, inter alia, food, clothing, access to and the poor condition of the prison's law library, mail delivery, hot water, improper placement of a mirror for the handicapped, phones, canteen needs, art supplies, mental stress, and the price of coffee. One of Brock's earlier appeals, filed when Brock only had 30 section 1983 claims pending in various courts, requested "$1 million dollars for mental cruelty and cruel and unusual punishment" because the prison nurses said "no" when Brock requested that his meals contain "extra meat" or "vitamins in place of vegetables." Brock v. Harrison, No. 2:95 Civ. 507 (E.D. Va. May 16, 1995). The district court dismissed this case as frivolous. Brock responded by bringing numerous additional suits, including a section 1983 claim against the victim of the crime for which Brock had been incarcerated. See Brock v. Speck, No. 2:95 Civ. 800 (E.D. Va. Sept. 14, 1995). The district court again dismissed the case. Id . On the same day, the district court dismissed yet another section 1983 case filed by Brock based upon Brock's dissatisfaction with the manner in which the prison officials responded to Brock's grievances. See Brock v. Smith, No. 2:95 Civ. 465 (E.D. Va. Sept. 14, 1995).


[12] In response to Brock's salvo of petitions, the district court ordered Brock on September 15, 1995, to show cause why a system of prefiling review should not be instituted by any action filed by Brock. Brock responded only by asserting that "he is incarcerated for a crime he did not commit and that someone should pay for this." Brock v. Robertson, No. 2:95 Civ. 891 (E.D. Va. September 29, 1995). The district court found Brock's objection meritless and ordered Brock to submit his future complaints for pre-filing review, allowing to be filed only those claims found to be made in good faith and not frivolous. Id. The pre-filing review system apparently failed to deter Brock, who responded by trying to bring yet another section 1983 claim, requesting inter alia reconsideration of all his previous cases and $72,000,000.00 in damages, against the district court Judge that had presided over many of Brock's claims. See Brock v. Smith, No. 2:95mc40 (E.D. Va. Oct. 26, 1995). The district court reviewed the complaint and returned it to Brock unfiled. Id.


[13] Brock later filed another section 1983 petition because he had been "housed with black men," and was "incarcerated two hundred miles from his family." Brock v. Virginia Dept. of Correct., No. 2.95mc45 (E.D. Va. Nov. 14, 1995). Brock also complained that a prison counselor "recommended that he take job training and AA classes" and "that the prison [would] not give him extra meat," along with numerous other similar alleged rights violations. Id. The district court ordered this complaint to be returned to Brock unfiled, as well.


[14] In addition to these cases, Brock has filed numerous other section 1983 claims, motions for reconsideration, and appeals to this circuit. Virtually all of Brock's filings include a litany of claims, each of which requires a response. For example, one of plaintiff's section 1983 actions complained of a laundry list of prison wrongs and requested "a change of Department policy, intervention by the [federal] courts, establishment of new state and federal laws and $82,000.27." Id. (emphasis added). In his motion for reconsideration of the district court's dismissal of that case, Brock explained that he did not want to bring his claim under section 1983 and requested that the court "file it under 'any applicable court title and code of law,'" thus requiring the court to examine his laundry list of grievances for any possible claim under any federal or state law. Id.


[15] Brock's instant section 1983 claim is typical of the claims with which he has burdened the courts of this circuit over the past several years. Here, Brock alleges that he is "either being poisoned or experimented on" because one of the ingredients listed on the side of the bottle of pancake syrup served at his prison is propylene glycol, which petitioner notes is also used in deodorant and antifreeze. Brock attempted to evade the pre-filing judicial review imposed on him by the District Court in the Eastern District of Virginia by filing his action in the Western District of Virginia. This, even though Brock stated in his complaint that he was aware the Western District did not have jurisdiction, and even though he was aware that all events giving rise to the claim occurred in the Eastern District of Virginia where petitioner has filed each of his numerous previous petitions. His action was transferred to the Eastern district.


[16] Even though Brock's claim on its face is at best fanciful or delusional, and more likely simply a deliberate affront to the judicial system, the district court thoroughly researched Brock's claim and found it to be frivolous. As the district court noted:


[17] Propylene glycol is a common extract used in cough syrup, pancake syrup and coffee flavoring. See Coffee, Perking Up a Workaholic City, THE WASHINGTON POST, December 19, 1994, at C1. It is a sweet viscous substance used to hold ingredients together. The fact that this substance is used in antifreeze does not make it poisonous. In fact, cat owners, whose cats like to hide under the car, have been advised to use antifreezes containing propylene glycol because they are not toxic. Protecting Your Pets from Yard-Pest Poisons, Plain Dealer, July 13, 1995, at 10E. Plaintiff is clearly not being poisoned or experimented on.


[18] Brock v. Angelone, No. 2:95cv1194 (E.D. Va. Dec. 22, 1995). Petitioner's claim is obviously frivolous for numerous additional reasons, not the least of which is that Brock nowhere alleges that anyone at the prison forced or in any way coerced him to consume the "poisonous" syrup. Brock's litigation over pancake syrup in the face of the court's pre-filing review system and threat of sanctions has shown that neither can serve as an effective deterrent.


[19] Under F.R.A.P. 38, we are authorized to impose sanctions upon appellants for the filing of frivolous appeals. Bast v. Cohen, Dunn & Sinclair, PC, 59 F.3d 492 (4th Cir. 1995). F.R.A.P. 38 provides:


[20] If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.


[21] Such "just damages" and "costs," include "damages, attorney's fees and other expenses incurred by an appellee if the appeal is frivolous," regardless of whether "the appeal resulted in delay." F.R.A.P. 38, Advisory Committee Notes. We are authorized to award such damages and costs "in [our] discretion in the case of a frivolous appeal as a matter of Justice to the appellee and as a penalty against the appellant." Id.


[22] Here, we ordered appellant to show cause as to why he should not be sanctioned for filing a frivolous appeal, thereby providing him with "notice from the court and reasonable opportunity to respond." F.R.A.P. 38. Having reviewed the appellant's response to our order, we now conclude that the appeal was indeed "frivolous," and therefore impose the following sanctions upon the appellant. In lieu of particularized fees and costs, we award the amount of $500 to the appellees, as we have frequently done in similar circumstances. See, e.g., Peeples v. Commissioner of Internal Revenue, No. 87-1053 (4th Cir. Sept. 23, 1987) (unpublished); Leining v. Commissioner, No. 86-1253 (4th Cir. July 21, 1987) (unpublished); United States v. Bowser, No. 86-1241 (4th Cir. April 22, 1987) (unpublished); United States v. Wissig, No. 86-1188 (4th Cir. Dec. 29, 1986) (unpublished); Chapman v. Egger, No. 86-2151 (4th Cir. Oct. 21, 1986) (unpublished); Jensen v. United States, No. 86-1504 (4th Cir. June 25, 1986) (unpublished), motion for accounting and cert. denied, 479 U.S. 924 (Oct. 20, 1986). This money shall be payable to the Warden of the Haynesville Correctional Center in his official capacity. Additionally, following a practice adopted in one of our sister circuits, we enjoin appellant from filing any further civil appeals in this court until these monetary sanctions are paid, and unless a district court Judge certifies that his claim is not frivolous. See Smith v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991) (ordering that petitioner "be barred from filing any further appeals in this court until (1) the sanctions awarded by this court and the district court are fully paid; and (2) a district court certifies his appeal as having some arguable merit"); cf. Shieh v. Kakita, 134 L. Ed. 2d 464, 116 S. Ct. 1311 (1996) (directing "the Clerk not to accept any further petitions for certiorari from [appellant] in noncriminal matters unless he pays the docketing fee required by [Supreme Court] Rule 38 and submits his petition in compliance with [Supreme Court] Rule 33.1"); Jones v. ABC-TV, 134 L. Ed. 2d 1, 116 S. Ct. 870 (1996) (same); Attwood v. Singletary, 133 L. Ed. 2d 721, 116 S. Ct. 769 (1996) (same); Whitaker v. Superior Court of California, San Francisco County, 131 L. Ed. 2d 324, 115 S. Ct. 1446 (1995) (same).


[23] It is so ordered



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