UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW
MEXICO, SANTA FE William H. Payne
Arthur R. Morales
Plaintiffs
v
CIV NO 97 0266
SC/DJS
Lieutenant General Kenneth A. Minihan, USAF
Director,
National Security Agency
National
Security Agency
Defendant
Federal
Rule of
Civ.
P. 60(b)(3),(4)
MOTION FOR
RELIEF FROM ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION,
STRIKING PLEADINGS, AND IMPOSING SANCTIONS FOR REASONS OF MISREPRESENTATION AND
OTHER MISCONDUCT AND VOIDABLE JUDGMENTS
1 COMES NOW
plaintiffs Arthur R Morales and William H Payne with Federal Rule of
Civ.
P. 60(b)(3),(4) motion for relief from judge Armijo's ORDER ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING
SANCTIONS file stamped August 27, 2007.
2 Judge Armijo writes
THIS MATTER comes before the Court on the Report and
Recommendation for Sanctions and Striking of Documents [Doc. 95], filed herein
on July 31, 2007. Plaintiffs filed their Objections [Doc. 97] to the Report and
Recommendation on August 17, 2007. The Court conducted a de novo review of the
Report and Recommendation and finds that it should be adopted.1 In
their objections, Plaintiffs argue that the undersigned United States District
Judge lacked jurisdiction to refer this matter to a Magistrate Judge for
recommended disposition, because it is not a “pretrial” matter. 28
U.S.C. § 636(b)(1) does refer to “pretrial matters.” However,
“[c]ourts considering the meaning of the term ‘pretrial’ in
§ 636(b) have not interpreted the term literally with
1Subsequent to Judge Garcia’s filing of the
Report and Recommendation for Sanctions and Striking of Documents [Doc. 95],
Plaintiffs filed, on August 22, 2007, two pleadings: Motion to Correct Response
to Report and Recommendation for Sanctions and Striking of Documents [Doc. 98]
and Motion for Extension of Time [Doc. 99].
This Court has reviewed these pleadings and determines that
their substance in no way alters the Court’s analysis and consideration of
the Report and Recommendation for Sanctions and Striking of Documents [Doc.
95]. The relief sought therein is denied and the pleadings are stricken from
the record.
respect to the time of trial, but rather have
interpreted the term to refer generally to matters unconnected to the issues
litigated at trial.” Robinson v. Eng, 148 F.R.D. 635, 641 (D. Neb. 1993).
See also, Bergeson v. Dilworth, 749 F. Supp. 1555 (D. Kan. 1990) (Magistrate
Judge has authority under § 636 to impose postjudgment Rule 11 sanctions
because, broadly construed, the term “pretrial matter” means any
matter unrelated to the claims litigated at trial).
Robinson v Eng and Bergeson v. Dilworth are summarized
Rule
11 states
(b) Representations to Court.
By presenting
to the court (whether by signing, filing, submitting, or later advocating) a
pleading, written motion, or other paper, an attorney or unrepresented party is
certifying that to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances,--
(1) it is not being presented for any improper purpose,
such as to harass or to cause unnecessary delay or needless increase in the
cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of
new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on
the evidence or, if specifically so identified, are reasonably based on a lack
of information or belief. "Magistrate Judge has
authority under § 636 to impose postjudgment Rule 11 sanctions because,
broadly construed, the term “pretrial matter” means any matter
unrelated to the claims litigated at trial" appears to be voidable for reason
of lack of jurisdiction.
A court may not render a judgment which
transcends the limits of its authority.
Plaintiffs assert that they are
in full compliance with Rule 11(b) and any claim by either magistrate judge
Garcia or judge Armijo is a misrepresentation cognizable under Rule
60(6)(3).
CIV
NO 97 0266 SC/DJS is a jury trial lawsuit which should either settled or
heard by a jury to try to resolve these unfortunate matters.
3 Judge
Armijo writes
In addition, the Court has authority under 28 U.S.C. §
636(b)(3), the “additional duties” provision, to refer any matter to
a Magistrate Judge so long as the Article III judge “retains the
‘ultimate responsibility for decision making in every
instance.’” Colorado Bldg. & Constr. Trades Council v. B.B.
Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989). In this case, the
District Judge has conducted the requisite de novo review and made the
independent determination that sanctions are warranted. The Court notes as well
that Plaintiffs are seeking relief which, if granted, would result in this case
being sent back for trial; thus, the pending motions fall within the meaning of
Section 636, as it is broadly interpreted by the Tenth Circuit. Thus, the Court
rejects the contention that its Order of Reference [Doc. 89] was improper.
This court was tasked to rule on motion to void
judgment, not to attack plaintiffs using false charges. Plaintiffs assert that
they are in full compliance with Rule 11(b).
A court is authorized by
statute to entertain jurisdiction in a particular case only, and undertakes to
exercise the jurisdiction conferred in a case to which the statute has no
application, the judgment rendered is void.
3 Judge Armijo writes
Plaintiffs also contend that two pleadings filed after the
deadline for responding to the Court’s Order to Show Cause – their
“Motion to Void Order of Reference for Lack of Jurisdiction” [Doc.
93], and their “Mandatory Judicial Notice and Authorities to Void Order of
Reference for Lack of Jurisdiction” [Doc. 94] – “obviated any
response to Garcia’s Order to Show Cause,” and that “Judge
Armijo’s failure to rule on Motion to Void Order of Reference for Lack of
Jurisdiction before allowing Garcia to issue REPORT AND RECOMMENDATION violated
due process.” [Doc. 97, at 6].
The Court rejects this contention. The pro se pleadings
[Docs. 93 and 94] do not serve to excuse the Plaintiffs’ obligations to
comply with the Court’s explicit directive and order of July 6, 3 2007
[Doc. 92]. Plaintiffs were required to show cause, and they failed to respond
to the Court’s Order to Show Cause within the time allotted. They argue
that their response was not late because the pleadings were mailed on July 25,
2007, even though they were not filed until July 26. However, the Order to Show
Cause reads: “Payne and Morales are directed to file their written
responses and supporting affidavits no later than July 25, 2007.” [Doc.
92, at 3]. The deadline was for filing a response; the date of service is
irrelevant. In any event, the two pleadings filed on July 26 were not
responsive to the Order to Show Cause. Plaintiffs’ action in filing a
motion, one day after the deadline for responding to the Order to Show Cause,
is a legal nullity. In addition, the Motion to Void Order of Reference for Lack
of Jurisdiction is substantively without merit. The Magistrate Judge
recommended that the two pleadings filed on July 26, 2007 [Docs. 93 and 94] be
among the documents to be stricken from the record, and this Court adopts that
recommendation. Judge Armijo's statement, "They argue
that their response was not late because the pleadings were mailed on July 25,
2007, even though they were not filed until July 26." is a misrepresentation
cognizable under Rule 60(6)(3) because by Rule 5(b) "Service by mail is
complete on mailing."
Judge Armijo's conduct was improper because
"Motion to Void Order of Reference for Lack of Jurisdiction," [Docs. 93] was not ruled upon before to determine if
plaintiffs were required to answer judge Garcia.
This is an Order which
violated due process and is null and void, and can be attacked at any time, in
any court, either directly or collaterally, provided that the party is properly
before the court.
4 Judge Armijo writes
Plaintiffs also object to the amount of the
recommended sanction, arguing that it is unprecedented. It is not. In affirming
a sanction award of over $56,000 in attorney fees against a plaintiffs counsel
for pursuing a case after the statute of limitations had clearly expired, the
court in Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187, 1194 (5th
Cir. 1996), noted that the district court must exercise its discretion “in
crafting a sanction award reasonably calculated to deter litigation
abuse.” While the $10,000 recommended in this case is a substantial
amount, lesser sanctions imposed against these Plaintiffs in the past have not
deterred their abusive conduct. Indeed, Plaintiffs continued with their
campaign of filing baseless and frivolous pleadings and lawsuits unmoved by the
Court’s earlier efforts to curb those filing abuses. The lesser sanctions
previously imposed (see Doc. 95, pg. 11, n. 9) were insufficient to accomplish
their intended purpose.
Armijo's statement "Indeed,
Plaintiffs continued with their campaign of filing baseless and frivolous
pleadings and lawsuits unmoved by the Court’s earlier efforts to curb
those filing abuses." shows violation of her oath of office because all
lawsuits are paid for trial by jury lawsuits where evidence of guilt of
defendants is in writing.
Judge Armijo was required to sign
5 USC 3331.
Oath of office
An individual, except the
President, elected or appointed to an office of honor or profit in the civil
service or uniformed services, shall take the following oath: “I, AB, do
solemnly swear (or affirm) that I will support and defend the Constitution of
the United States against all enemies, foreign and domestic; that I will bear
true faith and allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about to enter. So
help me God.” This section does not affect other oaths required by law.
Our prima facie case lawsuits were dismissed in
violation of our right to trial by jury guaranteed inviolate by 7th
Amendment to
US Constitution and
28 USC Rule 38 which judges were sworn to uphold.
A
court may not render a judgment which transcends the limits of its authority,
and a judgment is void if it is beyond the powers granted to the court by the
law of its organization, even where the court has jurisdiction over the parties
and the subject matter. A a judgment may not be rendered in violation of those
constitutional limitations and guaranties.
5 Judge Armijo writes
The amount recommended is not “unprecedented,” as
Plaintiffs contend. See, e.g., Merriman v. Security Ins. Co. of Hartford,
supra; White v. General Motors Corp., 977 F.2d 499 (10th Cir. 1992) (affirming
a sanction award of $50,000 against plaintiffs attorney); Doyle v. United
States, 817 F.2d 1235 (5th Cir. 1987) (affirming a total award of $38,872,
representing $1,554.88 against each of 25 plaintiffs who filed a frivolous
class-action lawsuit); Jennings v. Joshua Indep. Sch. Dist., 948 F.2d 194 (5th
Cir. 1991) (reducing to $21,539.95 a sanction award against plaintiff and
plaintiffs counsel for filing a clearly meritless case); Lapin v. United
States, 118 F.R.D. 632 (D. Haw. 1987) (awarding $28,400 to
be paid to the Clerk of Court as a sanction for frivolous filings).2
Plaintiffs were warned that sanctions could be awarded, and
they were given an opportunity to respond to the Order to Show Cause. They did
not do so, preferring to file yet another frivolous motion, challenging the
Court’s authority to refer this matter to the Magistrate Judge. In their
objections, they do not claim an inability to pay the amount recommended.
Indeed, Plaintiffs have been able to pay filing fees and to maintain the costs
of pursuing numerous lawsuits through the years. As the Court has not been
presented with any evidence of lack of ability to pay, that factor does not
enter into the Court’s consideration. "Plaintiffs
were warned that sanctions could be awarded, and they were given an opportunity
to respond to the Order to Show Cause. They did not do so, preferring to file
yet another frivolous motion, challenging the Court’s authority to refer
this matter to the Magistrate Judge." is a false statement.
Plaintiffs
did respond with "Motion to Void Order of Reference for Lack of Jurisdiction,"
[Docs. 93] was not ruled upon by judge Armijo before to
determine if plaintiffs were required to answer judge Garcia.
This
violated due process and is null and void, and can be attacked at any time, in
any court, either directly or collaterally, provided that the party is properly
before the court.
Plaintiffs previously addressed our reasons for
multiple lawsuits were that our rights were denied because the judges did not
comply with their oath of office to uphold the US Constitution.
6 Judge
Armijo writes
Finally, Plaintiffs appear to argue that “new
information” allegedly related to this lawsuit, which “recently
surfaced on Wikipedia,” justifies their filing new motions six and a half
years after the case was terminated. The information concerns former National
Security Advisor Zbigniew
2 The judge in Lapin v. United States referred
to a study showing that “a single hour spent by a federal judge on a case
costs the taxpayers approximately six hundred dollars.” He determined the
amount of judge time spent dealing with plaintiffs frivolous filings, assigning
$600 to in-court time and $200 to out-of court time, and came to the total
sanction of over $28,000. If that method were used in this case,
Plaintiffs’ sanction would likely amount to well over $100,000.
BrzeninskI. 3 5 Brzezinski.3 In addition,
Plaintiffs complain that among the documents which the Magistrate Judge
recommended stricken was a “criminal complaint affidavit against former
secretary of state Brzezinski.” Plaintiffs quote someone named “Col.
Feehan,” as follows: “Failure to bring Brzezinski to justice casts a
dark shadow of corruption on judicial and government branches. Further, a
failure to bring Brzezinski, and others, to justice may be an invitation for
retaliation by those aggrieved by what Brzezinski and others have done.”
[Doc. 97, at 22-23]. Motion to void judgment
does not require that "new information" be introduced.
Motion to void
judgment is appropriate and necessary when Constitution, due process rules, and
other factors renders a judgment void. Plaintiffs have taken this appropriate
action.
Read MANDATORY JUDICIAL NOTICE AND AUTHORITIES FOR VOID JUDGMENT
submitted to the Tenth Circuit Court of Appeals on September 11, 2007 to edify
The Court at
http://www.prosefights.org/nmlegal/moralesvoid/moralesvoid.htm#350voidnotice.
Assistant
US attorney Michell bought up the subject of new material so we obliged
Mitchell with the information on Wikipedia on how the 1980 Irag/Iran
started.
7 Judge Armijo writes
This statement is typical of the veiled and indirect
threats these Plaintiffs have made against judges, U.S. Attorneys and Assistant
U.S. Attorneys, court officers, federal officials and employees, and a host of
others who have had the misfortune of being named in the many complaints which
the Plaintiffs have filed. As noted in the Report and Recommendation, these pro
se litigants do little more more than heap abuse and invective on the
defendants and court officers. They have accused judicial officers of being
felons, of being corrupt and incompetent. For example, in this very case Payne
and Morales state, “Judge Armijo over-stepped her bounds and thus
demonstrated her bias or incompetence.” [Doc. 97, at 3].4 They continue to
harass judicial officers by filing criminal complaints. (See, e.g., Doc. 97,
“Criminal Complaint Affidavit” attached to Response as Appendix
“A:”).5 While Plaintiffs are free to maintain and express their
beliefs, they are not free to burden
3 Mr. Brzezinski was National Security Advisor
under President Jimmy Carter. As yet another example of frivolous pleading,
Plaintiffs are seeking to have “criminal complaints” issued against
Mr. Brzezinski for alleged misinformation given concerning national security
matters.
4 To the extent that Plaintiffs’ claim of bias
with respect to Judge Armijo constitutes a veiled request that she recuse from
this case, such request is denied. Plaintiffs have failed to demonstrate or
establish by affidavit, or otherwise, with particularity that the undersigned
judge has a bias or prejudice.
5 As noted in the Order to
Show Cause, Doc. 92, Appendix “C,” Payne and Morales filed criminal
complaints and sought to have “arrest warrants” issued for Senior
Judge James A. Parker, Chief Judge William Downes and several Assistant United
States Attorneys. The State District Attorney promptly intervened and dismissed
those prosecutions.
defendants or the Court with their prolixity and
frivolousness. As stated in the Report and Recommendation, “a party’s
right of access to the courts is neither absolute nor unconditional. Tripati v.
Beaman, 878 F.2d 351 (10th Cir. 1989). There exists no constitutional right of
access to courts to prosecute frivolous or malicious actions. Id.; Phillips v.
Carot, 38 F.2d 207, 208 (10th Cir. 1981).”
Statement " They have accused judicial officers of being felons, of being
corrupt and incompetent." is correct.
And plaintiffs have taken
appropriate legal steps under federal law to try to bring these felons to
justice.
See
1
http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan1
2
http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan2
3
http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan3
Plaintiffs
state and federal prima facia case [all evidence of guilt of defendants is
writing] federal lawsuit clear demonstrate a corrupt, arrogant, and incompetent
collection of lawyers trying to avoid settlement or right to trial by jury
guaranteed inviolate by 7th Amendment to
US Constitution and
28 USC Rule 38 thus costing the taxpayers much money and
grief.
Armijo's statement, "The State District Attorney promptly
intervened and dismissed those prosecutions." is true but all were dismissed
improperly and are voidable.
9 Judge Arnijo writes
From the outset, this Court has afforded Plaintiffs Payne
and Morales ample opportunity to bring their claims. Those claims have been
found, repeatedly, to be without merit and often filed for improper purposes,
including simply to harass or burden defendants and the courts. This Court will
not tolerate further abuse of the judicial system from these Plaintiffs.
Plaintiffs Morales and Payne jury trial lawsuit
guaranteed inviolate by 7th Amendment to
US Constitution and
28 USC Rule 38 have been repeated dismissed by judges who
violated their oath of office.
Plaintiffs will not tolerate further
abuse by the judicial system and therefore a moving to void judgments at the
Tenth Circuit and others courts.
10 Judge Arnijo writes
Payne and Morales argue that Judge Santiago E. Campos'
dismissal of their lawsuits was "without jurisdiction" because Plaintiffs
sought a jury trial and the Court's granting of summary judgment denied them
their Seventh Amendment right to a jury trial. They contend that the Court was
without jurisdiction to dismiss their complaint in the face of a jury demand.
The problem with this argument is that it was previously
presented by these same litigants to trial courts and to the Tenth Circuit, and
the argument was soundly rejected. In Payne v. National Security Agency, 232
F.3d 902 (table, text in Westlaw), 2000 WL 1570547, at *1 (10th Cir. Oct. 19,
2000), the Tenth Circuit stated:
Plaintiff-appellant William H. Payne appeals from
the district court's order granting summary judgment on his complaint pursuant
to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to
defendant-appellee National Security Agency (NSA). Payne offers no substantive
argument in opposition to the conclusions reached by the district court on the
FOIA issues. He contends only that the district court should not have entered
summary judgment because it denied him a jury trial to which he was entitled
under the Seventh Amendment to the United States Constitution and Fed. R. Civ.
P. 38. We affirm.
Assuming without deciding that the Seventh Amendment
entitled 7 Payne to a jury trial on his FOIA claim, the district court did not
deny him that right by entering summary judgment against him. It is wellsettled
that the Seventh Amendment is not violated by proper entry of summary judgment,
because such a ruling means that no triable issue exists to be submitted to a
jury. See City of Chanute v. Williams Natural Gas Co., 955 F.2d 641, 657 (10th
Cir. 1992)(citing Fidelity & Deposit Co. v. United States, 187 U.S. 315,
319-20 (1902)), overruled on other grounds by Systemcare, Inc. v. Wang Lab
Corp., 117 F.3d 1137-1145 (10th Cir. 1997). See also In re TMI Litig, 193 F.3d
613, 725 (3d Cir. 1999), cert. denied, 120 S. Ct. 2238
(2000). Problem with Armijo's statement
"The problem with this argument is that it was previously presented by these
same litigants to trial courts and to the Tenth Circuit, and the argument was
soundly rejected." is that the Tenth Circuit also issued a voidable
judgment.
And, of course, the appeal Case Number: 00-2019 is valid for
void judgment motion and will be used if these unfortunate matters are not
settled and this motion granted.
11 Judge Armijo writes
With this decisive ruling by the Tenth Circuit, one would
expect that Payne and Morales would not again raise the issue. However, that
did not occur. In Payne v. EEOC et al., CIV 99-270, Payne again contended that,
in a Privacy Act claim, it was improper for the court to grant summary judgment
against him because the grant of summary judgment violated his Seventh
Amendment right to a jury trial or Fed. R. Civ. P. 38. The trial court rejected
the argument and, on appeal, Payne v. EEOC, 242 F.3d 390 (Table, text in
Westlaw), 2000 WL 1862659, at *2 (10th Cir. Dec. 20, 2000), the Tenth Circuit
affirmed the summary dismissal of Payne’s Privacy Act claim. The Tenth
Circuit rejected Payne's argument that the grant of summary judgment deprived
him of his Seventh Amendment right to a jury trial, or that dismissal of his
lawsuit violated Rule 38.
As explained by the magistrate judge in dismissing
plaintiff's claims against the private corporations and individuals, the
Privacy Act authorizes suit only against an "agency" of the United States
Government. 5 U.S.C. § 552a(a)(1)(q)(1); Parks v. IRS, 618 F.2d 677, 684
(10th Cir. 1980). In general, the United States is immune from being sued
unless it consents. United States v. Sherwood, 312 U.S. 584, 586 (1941). Even
when it consents, the general rule is that the Seventh Amendment does not grant
a plaintiff the right to a trial by jury. Lehman v. Nakshian, 453 U.S. 156, 160
(1981). Thus, when the government does consent to being sued, the plaintiff has
a right
6While the Tenth Circuit assumed
without deciding that there was a right to a jury trial, subsequent rulings
demonstrate that “[n]either the Privacy Act nor the Freedom of Information
Act (FOIA) provide a plaintiff with the right to a jury trial.” Buckles v.
Indian Health Service/Belcourt Service Unit, 268 F. Supp. 2d 1101 (D.N.D.
2003).
to a jury trial only when the right has been
"unequivocally expressed" by Congress. Id. at 160-61. The Privacy Act is silent
as to any right to a jury trial. Consequently, plaintiff had no right to a jury
trial under the Privacy Act. Plaintiff also includes an allegation that he was
entitled to a jury trial under Fed. R. Civ. P. 38. Rule 38, however, simply
states that the Seventh Amendment or statutory rights to a jury trial shall be
preserved in the federal courts. The Rule does not provide an independent
entitlement to a jury trial. Moreover, the proper dismissal of a complaint
under Fed. R. Civ. P. 12(b)(6) does not violate the Seventh Amendment.
Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990). It is clear from our
de novo review that the magistrate judge correctly dismissed plaintiff's
complaint against all defendants.
" In Payne v. EEOC et al., CIV 99-270, Payne again contended that, in a Privacy
Act claim, it was improper for the court to grant summary judgment against him
because the grant of summary judgment violated his Seventh Amendment right to a
jury trial or Fed. R. Civ. P. 38." is voidable and action to vacate this case
was stated on September 11, 2007 at the Tenth Circuit.
Plan of attack to
void judgment started with this void judgment action in New Mexico court to see
how the court was going to react. Now that plaintiffs have discovered response
by courts we move to the next steps in our legal project.
Here are htm
hotlink versions which link to copies of PACER dockets
http://www.prosefights.org/nmlegal/moralesvoid/moralesvoid.htm#350voidmotion
http://www.prosefights.org/nmlegal/moralesvoid/moralesvoid.htm#350voidnotice
and
http://www.prosefights.org/nmlegal/tenthvoid/tenthvoid#270voidmotion
http://www.prosefights.org/nmlegal/tenthvoid/tenthvoid#270voidnotice
12 Judge Armijo writes
Given the history of these pro se litigants of
ignoring orders and directives of the court, it not surprising that they have
ignored the Tenth Circuit’s prior rulings in Plaintiffs’ own cases
which soundly rejected arguments that a trial court is without jurisdiction to
grant summary judgment because it violates the Seventh Amendment and Rule 38,
or that a court is without jurisdiction to dismiss a lawsuit when a plaintiff
has filed a jury demand.
Remedy for failing to get what
we paid for and guaranteed inviolate by 7th Amendment to
US Constitution and
28 USC Rule 38 is
hidden by the legal profession until recently.
Some
judges in the Tenth Circuit violated in writing in court"[a] judgment may not
be rendered in violation of those constitutional limitations and guaranties."
and managed to violate their oath of office in writing.
Plaintiffs, of
course, seek settlement of these unfortunate matters and do not wish to pursue
removal of offending judges for violation of oath of office.
13 Judge
Armijo writes
Finally, the Court rejects the argument that Chief
Magistrate Judge Lorenzo F. Garcia should not have participated in this case
due to bias. Payne advanced the same argument in Payne v. EEOC et al., CIV
99-270, a case tried by Judge Garcia. The Magistrate Judge denied Payne’s
request that he recuse and, on appeal, 2000 WL 1862659, the Tenth Circuit
affirmed the dismissal of Payne’s case and rejected Payne’s
contention that Magistrate Judge Garcia was bound to recuse himself from the
litigation. Judge Lorenzo Garcia who is defendant in CV
2000-10278 and was presiding judge in voidable 99 cv 270.
Garcia flaunts disregard for 28 USC
§ 455. Disqualification of justice, judge, or magistrate
judge
(a) Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned. ...
So Garcia should
not have been selected by magistrate by judge Armijo and Garcia should have
disqualified himself under 28 USC § 455.
An opportunity for a
hearing before a competent and impartial tribunal on proper notice is one of
the essential elements of due process of law.
A judgment is irregular
where its rendition is contrary to the course and practice of the courts; that
is, where proper rules of practice have not been followed, or where some
necessary act has been omitted or has been done in an improper
manner.
Garcia was not disqualified; therefore, ORDER ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING
SANCTIONS is voidable.
14 Judge Armijo writes
Conclusion
This Court,
after careful consideration of Plaintiffs’ objections, finds that the
Magistrate Judge’s analysis is sound. The Court concludes that it has
power to impose sanctions on these Plaintiffs. The pleadings which Plaintiffs
filed in this case were frivolous, unsupported in fact or law, and constitute a
continuation of Plaintiffs’ campaign to file frivolous pleadings intended
solely to harass and burden defendants and the Court. The Court adopts the
Ehrenhaus analysis set out in the Report and Recommendation. Ehrenhaus v.
Reynolds, 965 F.2d 916 (10th Cir. 1992). The Court further finds that the
sanctions suggested are appropriate. The entirety of the Report and
Recommendation is adopted. Plaintiffs’ objections are overruled.
"The pleadings which Plaintiffs filed in this case were
frivolous, unsupported in fact or law, and constitute a continuation of
Plaintiffs’ campaign to file frivolous pleadings intended solely to harass
and burden defendants and the Court." is a false claim.
Motion to void
judgment is to void judgment when constitution, due process rules, and other
factors renders a judgment void.
"The Court concludes that it has power
to impose sanctions on these Plaintiffs." is also false since plaintiffs
followed the law.
To the contrary judge Armijo does not follow court
rules which requires ruling
05/16/2007 81 STRICKEN from the record pursuant to 100
Order - MOTION to Set Aside Judgment by William H Payne, Arthur R Morales. (pz)
Modified docket text on 8/28/2007 (ln). (Entered: 05/18/2007)
but instead, with biased magistrate judge Lorenzo Garcia
unwarranted attacks plaintiffs, violates her oath of office to support the US
Constitution, strikes motion and commits Title 18 felony violation of law all
in writing in court records.
A judgment is irregular where its
rendition is contrary to the course and practice of the courts; that is, where
proper rules of practice have not been followed, or where some necessary act
has been omitted or has been done in an improper manner.
A court is
authorized by statute to entertain jurisdiction in a particular case only, and
undertakes to exercise the jurisdiction conferred in a case to which the
statute has no application, the judgment rendered is void.
A judgment is
void when the court lacks jurisdiction of the parties or of the subject matter,
lacks the inherent power to make or enter the particular order involved, or
acts in a manner inconsistent with due process of law.
So Armijo's statement. "The Court further finds that the
sanctions suggested are appropriate." is not supported by the facts and is
therefore void.
15 Judge Armijo writes
Order
IT IS THEREFORE ORDERED that the Magistrate Judge’s
Report and Recommendation [Doc. 95], filed herein on July 31, 2007, is hereby
adopted.
IT IS FURTHER ORDERED that Plaintiffs’ pleadings 81,
82, 84, 85, 91, 93, 94, 98, and 99 are stricken from the record.
IT IS FURTHER ORDERED that Plaintiff William H. Payne is
personally sanctioned for abusive litigation practices in the amount of
$10,000. Mr. Payne shall pay this amount to the Clerk of the Court within 30
days of the date of this Order.
IT IS FURTHER ORDERED that Plaintiff Arthur R. Morales is
personally sanctioned for abusive litigation practices in the amount of
$10,000. Mr. Morales shall pay this amount to the Clerk of the Court within 30
days of the date of this Order.
IT IS FURTHER ORDERED that if payment is not made from
either Plaintiff as ordered above, the United States Attorney is directed to
take all reasonable and necessary steps to exact payment and to collect these
sanctions from the offending Plaintiff or Plaintiffs and to deposit the amounts
collected with the Clerk of Court.
IT IS FURTHER ORDERED that the Clerk of Court will accept
no further filings from Plaintiffs in this case, save for a notice of appeal,
other than the payments ordered above.
Order "IT IS THEREFORE ORDERED that the Magistrate
Judge’s Report and Recommendation [Doc. 95], filed herein on July 31,
2007, is hereby adopted." is void for reasons:
An opportunity for a hearing before a competent and impartial
tribunal on proper notice is one of the essential elements of due process of
law.
A judgment is irregular where its rendition is contrary to the
course and practice of the courts; that is, where proper rules of practice have
not been followed, or where some necessary act has been omitted or has been
done in an improper manner.
Order "IT IS FURTHER ORDERED that
Plaintiffs’ pleadings 81, 82, 84, 85, 91, 93, 94, 98, and 99 are stricken
from the record. " is void for reasons:
A judgment is irregular where its rendition is contrary to
the course and practice of the courts; that is, where proper rules of practice
have not been followed, or where some necessary act has been omitted or has
been done in an improper manner.
A court is authorized by statute to
entertain jurisdiction in a particular case only, and undertakes to exercise
the jurisdiction conferred in a case to which the statute has no application,
the judgment rendered is void.
A judgment is void when the court lacks
jurisdiction of the parties or of the subject matter, lacks the inherent power
to make or enter the particular order involved, or acts in a manner
inconsistent with due process of law.
Orders "IT IS FURTHER ORDERED that
Plaintiff William H. Payne is personally sanctioned for abusive litigation
practices in the amount of $10,000. Mr. Payne shall pay this amount to the
Clerk of the Court within 30 days of the date of this Order." and "IT IS
FURTHER ORDERED that Plaintiff Arthur R. Morales is personally sanctioned for
abusive litigation practices in the amount of $10,000. Mr. Morales shall pay
this amount to the Clerk of the Court within 30 days of the date of this
Order." are void for reasons:
An opportunity for a hearing before a
competent and impartial tribunal on proper notice is one of the essential
elements of due process of law.
A judgment is irregular where its
rendition is contrary to the course and practice of the courts; that is, where
proper rules of practice have not been followed, or where some necessary act
has been omitted or has been done in an improper manner.
Order "IT IS FURTHER ORDERED that if payment is not made from
either Plaintiff as ordered above, the United States Attorney is directed to
take all reasonable and necessary steps to exact payment and to collect these
sanctions from the offending Plaintiff or Plaintiffs and to deposit the amounts
collected with the Clerk of Court." is void for reason:
A judgment is irregular where its rendition is contrary to
the course and practice of the courts; that is, where proper rules of practice
have not been followed, or where some necessary act has been omitted or has
been done in an improper manner.
Order "IT IS FURTHER ORDERED that the Clerk of Court will
accept no further filings from Plaintiffs in this case, save for a notice of
appeal, other than the payments ordered above." is void for reason:
The
limitations inherent in the requirements of due process of law extend to
judicial, as well as political, branches of the government, so that a judgment
may not be rendered in violation of those constitutional limitations and
guaranties.
Judge Armijo has, again, committed a Title 18 felony violation
of law
COUNT 2
Judge M Christina Armijo is charged
with violation of
Title 18 § 241 and
§ 242 for issuing order:
IT IS FURTHER ORDERED
that the Clerk of Court will accept no further filings from Plaintiffs in this
case, save for a notice of appeal, other than the payments ordered above.
It is due process civil right of plaintiffs to be able to defend
themselves in court and file under Federal Rules of Civil Procedure
Rule
59(e) or
Rule
60(b)(3) [fraud] or (4) [void].
RELIEF SOUGHT
16 Vacate
08/27/2007 100 ORDER by Judge M. Christina Armijo Adopting
Report and Recommendations, Striking Pleadings, and Imposing Sanctions 95
(jab) (Entered: 08/27/2007)
16 Judge Armijo is removed under
Rule
63 for reason of incompetence and bias.
Armijo words "[s]ave for a
notice of appeal ..." clearly points to incompetence since void judgments are
not appealed. Void judgment are vacated under Federal Rule of
Civ.
P. 60(b)(4).
17 Recuse all New Mexico judicial officers and reassign
CIV NO 97 0266
SC/DJS to UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.
18 Relief items 16 through 18 shall be accomplished and plaintiffs notified
by close of business Wednesday September 26, 2007 or void judgment, not appeal,
will be filed under Federal Rule of
Civ.
P. 60(b)(4) at the Tenth Circuit Court of Appeals for case number
00-2019.
Respectfully submitted,
_________________________
William H. Payne
13015 Calle de
Sandias NE
Albuquerque, NM 87111
_________________________
Arthur R. Morales
465 Washington St SE
Albuquerque, NM 87108
Date: ____________________
Pro se litigants
CERTIFICATE OF SERVICE
I HEREBY
CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF
JURISDICTION was emailed Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd
ST NW, ABQ, NM 87102 at
jan.mitchell@usdoj.gov.
_________________________
_________________________
Date
|
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT
OF NEW MEXICO
WILLIAM H. PAYNE and
ARTHUR R. MORALES,
Plaintiffs,
vs. No. CIV 97-266 MCA/LFG
NATIONAL SECURITY AGENCY,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING SANCTIONS
THIS MATTER comes before the Court on the Report and
Recommendation for Sanctions and Striking of Documents [Doc. 95], filed herein
on July 31, 2007. Plaintiffs filed their Objections [Doc. 97] to the Report and
Recommendation on August 17, 2007. The Court conducted a de novo review of the
Report and Recommendation and finds that it should be adopted.1 In their
objections, Plaintiffs argue that the undersigned United States District Judge
lacked jurisdiction to refer this matter to a Magistrate Judge for recommended
disposition, because it is not a “pretrial” matter. 28 U.S.C. §
636(b)(1) does refer to “pretrial matters.” However, “[c]ourts
considering the meaning of the term ‘pretrial’ in § 636(b) have
not interpreted the term literally with
1Subsequent
to Judge Garcia’s filing of the Report and Recommendation for Sanctions
and Striking of Documents [Doc. 95], Plaintiffs filed, on August 22, 2007, two
pleadings: Motion to Correct Response to Report and Recommendation for
Sanctions and Striking of Documents [Doc. 98] and Motion for Extension of Time
[Doc. 99].
This Court has reviewed these pleadings and determines that
their substance in no way alters the Court’s analysis and consideration of
the Report and Recommendation for Sanctions and Striking of Documents [Doc.
95]. The relief sought therein is denied and the pleadings are stricken from
the record.
respect to the time of trial, but rather have
interpreted the term to refer generally to matters unconnected to the issues
litigated at trial.” Robinson v. Eng, 148 F.R.D. 635, 641 (D. Neb. 1993).
See also, Bergeson v. Dilworth, 749 F. Supp. 1555 (D. Kan. 1990) (Magistrate
Judge has authority under § 636 to impose postjudgment Rule 11 sanctions
because, broadly construed, the term “pretrial matter” means any
matter unrelated to the claims litigated at trial).
In addition, the Court has authority under 28 U.S.C. §
636(b)(3), the “additional duties” provision, to refer any matter to
a Magistrate Judge so long as the Article III judge “retains the
‘ultimate responsibility for decision making in every
instance.’” Colorado Bldg. & Constr. Trades Council v. B.B.
Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989). In this case, the
District Judge has conducted the requisite de novo review and made the
independent determination that sanctions are warranted. The Court notes as well
that Plaintiffs are seeking relief which, if granted, would result in this case
being sent back for trial; thus, the pending motions fall within the meaning of
Section 636, as it is broadly interpreted by the Tenth Circuit. Thus, the Court
rejects the contention that its Order of Reference [Doc. 89] was improper.
Plaintiffs also contend that two pleadings filed after the
deadline for responding to the Court’s Order to Show Cause – their
“Motion to Void Order of Reference for Lack of Jurisdiction” [Doc.
93], and their “Mandatory Judicial Notice and Authorities to Void Order of
Reference for Lack of Jurisdiction” [Doc. 94] – “obviated any
response to Garcia’s Order to Show Cause,” and that “Judge
Armijo’s failure to rule on Motion to Void Order of Reference for Lack of
Jurisdiction before allowing Garcia to issue REPORT AND RECOMMENDATION violated
due process.” [Doc. 97, at 6].
The Court rejects this contention. The pro se pleadings
[Docs. 93 and 94] do not serve to excuse the Plaintiffs’ obligations to
comply with the Court’s explicit directive and order of July 6, 3 2007
[Doc. 92]. Plaintiffs were required to show cause, and they failed to respond
to the Court’s Order to Show Cause within the time allotted. They argue
that their response was not late because the pleadings were mailed on July 25,
2007, even though they were not filed until July 26. However, the Order to Show
Cause reads: “Payne and Morales are directed to file their written
responses and supporting affidavits no later than July 25, 2007.” [Doc.
92, at 3]. The deadline was for filing a response; the date of service is
irrelevant. In any event, the two pleadings filed on July 26 were not
responsive to the Order to Show Cause. Plaintiffs’ action in filing a
motion, one day after the deadline for responding to the Order to Show Cause,
is a legal nullity. In addition, the Motion to Void Order of Reference for Lack
of Jurisdiction is substantively without merit. The Magistrate Judge
recommended that the two pleadings filed on July 26, 2007 [Docs. 93 and 94] be
among the documents to be stricken from the record, and this Court adopts that
recommendation.
Plaintiffs also object to the amount of the recommended
sanction, arguing that it is unprecedented. It is not. In affirming a sanction
award of over $56,000 in attorney fees against a plaintiff’s counsel for
pursuing a case after the statute of limitations had clearly expired, the court
in Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187, 1194 (5th Cir.
1996), noted that the district court must exercise its discretion “in
crafting a sanction award reasonably calculated to deter litigation
abuse.” While the $10,000 recommended in this case is a substantial
amount, lesser sanctions imposed against these Plaintiffs in the past have not
deterred their abusive conduct. Indeed, Plaintiffs continued with their
campaign of filing baseless and frivolous pleadings and lawsuits unmoved by the
Court’s earlier efforts to curb those filing abuses. The lesser sanctions
previously imposed (see Doc. 95, pg. 11, n. 9) were insufficient to accomplish
their intended purpose.
The amount recommended is not “unprecedented,” as
Plaintiffs contend. See, e.g., Merriman v. Security Ins. Co. of Hartford,
supra; White v. General Motors Corp., 977 F.2d 499 (10th Cir. 1992) (affirming
a sanction award of $50,000 against plaintiff’s attorney); Doyle v. United
States, 817 F.2d 1235 (5th Cir. 1987) (affirming a total award of $38,872,
representing $1,554.88 against each of 25 plaintiffs who filed a frivolous
class-action lawsuit); Jennings v. Joshua Indep. Sch. Dist., 948 F.2d 194 (5th
Cir. 1991) (reducing to $21,539.95 a sanction award against plaintiff and
plaintiff’s counsel for filing a clearly meritless case); Lapin v. United
States, 118 F.R.D. 632 (D. Haw. 1987) (awarding $28,400 to be paid to the Clerk
of Court as a sanction for frivolous filings).2
Plaintiffs were warned that sanctions could be awarded, and
they were given an opportunity to respond to the Order to Show Cause. They did
not do so, preferring to file yet another frivolous motion, challenging the
Court’s authority to refer this matter to the Magistrate Judge. In their
objections, they do not claim an inability to pay the amount recommended.
Indeed, Plaintiffs have been able to pay filing fees and to maintain the costs
of pursuing numerous lawsuits through the years. As the Court has not been
presented with any evidence of lack of ability to pay, that factor does not
enter into the Court’s consideration.
Finally, Plaintiffs appear to argue that “new
information” allegedly related to this lawsuit, which “recently
surfaced on Wikipedia,” justifies their filing new motions six and a half
years after the case was terminated. The information concerns former National
Security Advisor Zbigniew
2 The judge in Lapin v. United States referred to
a study showing that “a single hour spent by a federal judge on a case
costs the taxpayers approximately six hundred dollars.” He determined the
amount of judge time spent dealing with plaintiff’s frivolous filings,
assigning $600 to in-court time and $200 to out-of court time, and came to the
total sanction of over $28,000. If that method were used in this case,
Plaintiffs’ sanction would likely amount to well over $100,000.
BrzeninskI. 3 5 Brzezinski.3 In addition,
Plaintiffs complain that among the documents which the Magistrate Judge
recommended stricken was a “criminal complaint affidavit against former
secretary of state Brzezinski.” Plaintiffs quote someone named “Col.
Feehan,” as follows: “Failure to bring Brzezinski to justice casts a
dark shadow of corruption on judicial and government branches. Further, a
failure to bring Brzezinski, and others, to justice may be an invitation for
retaliation by those aggrieved by what Brzezinski and others have done.”
[Doc. 97, at 22-23].
This statement is typical of the veiled and indirect threats
these Plaintiffs have made against judges, U.S. Attorneys and Assistant U.S.
Attorneys, court officers, federal officials and employees, and a host of
others who have had the misfortune of being named in the many complaints which
the Plaintiffs have filed. As noted in the Report and Recommendation, these pro
se litigants do little more more than heap abuse and invective on the
defendants and court officers. They have accused judicial officers of being
felons, of being corrupt and incompetent. For example, in this very case Payne
and Morales state, “Judge Armijo over-stepped her bounds and thus
demonstrated her bias or incompetence.” [Doc. 97, at 3].4 They continue to
harass judicial officers by filing criminal complaints. (See, e.g., Doc. 97,
“Criminal Complaint Affidavit” attached to Response as Appendix
“A:”).5 While Plaintiffs are free to maintain and express their
beliefs, they are not free to burden
3 Mr. Brzezinski was National Security Advisor
under President Jimmy Carter. As yet another example of frivolous pleading,
Plaintiffs are seeking to have “criminal complaints” issued against
Mr. Brzezinski for alleged misinformation given concerning national security
matters.
4 To the extent that Plaintiffs’ claim of bias
with respect to Judge Armijo constitutes a veiled request that she recuse from
this case, such request is denied. Plaintiffs have failed to demonstrate or
establish by affidavit, or otherwise, with particularity that the undersigned
judge has a bias or prejudice.
5 As noted in the Order to
Show Cause, Doc. 92, Appendix “C,” Payne and Morales filed criminal
complaints and sought to have “arrest warrants” issued for Senior
Judge James A. Parker, Chief Judge William Downes and several Assistant United
States Attorneys. The State District Attorney promptly intervened and dismissed
those prosecutions.
defendants or the Court with their prolixity and
frivolousness. As stated in the Report and Recommendation, “a party’s
right of access to the courts is neither absolute nor unconditional. Tripati v.
Beaman, 878 F.2d 351 (10th Cir. 1989). There exists no constitutional right of
access to courts to prosecute frivolous or malicious actions. Id.; Phillips v.
Carot, 38 F.2d 207, 208 (10th Cir. 1981).”
From the outset, this Court has afforded Plaintiffs Payne and
Morales ample opportunity to bring their claims. Those claims have been found,
repeatedly, to be without merit and often filed for improper purposes,
including simply to harass or burden defendants and the courts. This Court will
not tolerate further abuse of the judicial system from these Plaintiffs.
Payne and Morales argue that Judge Santiago E. Campos'
dismissal of their lawsuits was "without jurisdiction" because Plaintiffs
sought a jury trial and the Court's granting of summary judgment denied them
their Seventh Amendment right to a jury trial. They contend that the Court was
without jurisdiction to dismiss their complaint in the face of a jury demand.
The problem with this argument is that it was previously
presented by these same litigants to trial courts and to the Tenth Circuit, and
the argument was soundly rejected. In Payne v. National Security Agency, 232
F.3d 902 (table, text in Westlaw), 2000 WL 1570547, at *1 (10th Cir. Oct. 19,
2000), the Tenth Circuit stated:
Plaintiff-appellant William H. Payne appeals from
the district court's order granting summary judgment on his complaint pursuant
to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to
defendantappellee National Security Agency (NSA). Payne offers no substantive
argument in opposition to the conclusions reached by the district court on the
FOIA issues. He contends only that the district court should not have entered
summary judgment because it denied him a jury trial to which he was entitled
under the Seventh Amendment to the United States Constitution and Fed. R. Civ.
P. 38. We affirm.
Assuming without deciding that the Seventh Amendment
entitled 7 Payne to a jury trial on his FOIA claim, the district court did not
deny him that right by entering summary judgment against him. It is wellsettled
that the Seventh Amendment is not violated by proper entry of summary judgment,
because such a ruling means that no triable issue exists to be submitted to a
jury. See City of Chanute v. Williams Natural Gas Co., 955 F.2d 641, 657 (10th
Cir. 1992)(citing Fidelity & Deposit Co. v. United States, 187 U.S. 315,
319-20 (1902)), overruled on other grounds by Systemcare, Inc. v. Wang Lab
Corp., 117 F.3d 1137-1145 (10th Cir. 1997). See also In re TMI Litig, 193 F.3d
613, 725 (3d Cir. 1999), cert. denied, 120 S. Ct. 2238
(2000).
With this decisive ruling by the Tenth Circuit, one would
expect that Payne and Morales would not again raise the issue. However, that
did not occur. In Payne v. EEOC et al., CIV 99-270, Payne again contended that,
in a Privacy Act claim, it was improper for the court to grant summary judgment
against him because the grant of summary judgment violated his Seventh
Amendment right to a jury trial or Fed. R. Civ. P. 38. The trial court rejected
the argument and, on appeal, Payne v. EEOC, 242 F.3d 390 (Table, text in
Westlaw), 2000 WL 1862659, at *2 (10th Cir. Dec. 20, 2000), the Tenth Circuit
affirmed the summary dismissal of Payne’s Privacy Act claim. The Tenth
Circuit rejected Payne's argument that the grant of summary judgment deprived
him of his Seventh Amendment right to a jury trial, or that dismissal of his
lawsuit violated Rule 38.
As explained by the magistrate judge in dismissing
plaintiff's claims against the private corporations and individuals, the
Privacy Act authorizes suit only against an "agency" of the United States
Government. 5 U.S.C. § 552a(a)(1)(q)(1); Parks v. IRS, 618 F.2d 677, 684
(10th Cir. 1980). In general, the United States is immune from being sued
unless it consents. United States v. Sherwood, 312 U.S. 584, 586 (1941). Even
when it consents, the general rule is that the Seventh Amendment does not grant
a plaintiff the right to a trial by jury. Lehman v. Nakshian, 453 U.S. 156, 160
(1981). Thus, when the government does consent to being sued, the plaintiff has
a right
6While the Tenth Circuit assumed
without deciding that there was a right to a jury trial, subsequent rulings
demonstrate that “[n]either the Privacy Act nor the Freedom of Information
Act (FOIA) provide a plaintiff with the right to a jury trial.” Buckles v.
Indian Health Service/Belcourt Service Unit, 268 F. Supp. 2d 1101 (D.N.D.
2003).
to a jury trial only when the right has been "unequivocally
expressed" by Congress. Id. at 160-61. The Privacy Act is silent as to any
right to a jury trial. Consequently, plaintiff had no right to a jury trial
under the Privacy Act. Plaintiff also includes an allegation that he was
entitled to a jury trial under Fed. R. Civ. P. 38. Rule 38, however, simply
states that the Seventh Amendment or statutory rights to a jury trial shall be
preserved in the federal courts. The Rule does not provide an independent
entitlement to a jury trial. Moreover, the proper dismissal of a complaint
under Fed. R. Civ. P. 12(b)(6) does not violate the Seventh Amendment.
Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990). It is clear from our
de novo review that the magistrate judge correctly dismissed plaintiff's
complaint against all defendants.
Given the history of these pro se litigants of ignoring
orders and directives of the court, it not surprising that they have ignored
the Tenth Circuit’s prior rulings in Plaintiffs’ own cases which
soundly rejected arguments that a trial court is without jurisdiction to grant
summary judgment because it violates the Seventh Amendment and Rule 38, or that
a court is without jurisdiction to dismiss a lawsuit when a plaintiff has filed
a jury demand.
Finally, the Court rejects the argument that Chief Magistrate
Judge Lorenzo F. Garcia should not have participated in this case due to bias.
Payne advanced the same argument in Payne v. EEOC et al., CIV 99-270, a case
tried by Judge Garcia. The Magistrate Judge denied Payne’s request that he
recuse and, on appeal, 2000 WL 1862659, the Tenth Circuit affirmed the
dismissal of Payne’s case and rejected Payne’s contention that
Magistrate Judge Garcia was bound to recuse himself from the litigation.
Conclusion
This Court, after
careful consideration of Plaintiffs’ objections, finds that the Magistrate
Judge’s analysis is sound. The Court concludes that it has power to impose
sanctions on these Plaintiffs. The pleadings which Plaintiffs filed in this
case were frivolous, unsupported in fact or law, and constitute a continuation
of Plaintiffs’ campaign to file frivolous pleadings intended solely to
harass and burden defendants and the Court. The Court adopts the Ehrenhaus
analysis set out in the Report and Recommendation. Ehrenhaus v. Reynolds, 965
F.2d 916 (10th Cir. 1992). The Court further finds that the sanctions suggested
are appropriate. The entirety of the Report and Recommendation is adopted.
Plaintiffs’ objections are overruled.
Order
IT IS THEREFORE ORDERED that the Magistrate Judge’s
Report and Recommendation [Doc. 95], filed herein on July 31, 2007, is hereby
adopted.
IT IS FURTHER ORDERED that Plaintiffs’ pleadings 81, 82,
84, 85, 91, 93, 94, 98, and 99 are stricken from the record.
IT IS FURTHER ORDERED that Plaintiff William H. Payne is
personally sanctioned for abusive litigation practices in the amount of
$10,000. Mr. Payne shall pay this amount to the Clerk of the Court within 30
days of the date of this Order.
IT IS FURTHER ORDERED that Plaintiff Arthur R. Morales is
personally sanctioned for abusive litigation practices in the amount of
$10,000. Mr. Morales shall pay this amount to the Clerk of the Court within 30
days of the date of this Order.
IT IS FURTHER ORDERED that if payment is not made from either
Plaintiff as ordered above, the United States Attorney is directed to take all
reasonable and necessary steps to exact payment and to collect these sanctions
from the offending Plaintiff or Plaintiffs and to deposit the amounts collected
with the Clerk of Court.
IT IS FURTHER ORDERED that the Clerk of Court will accept no
further filings from Plaintiffs in this case, save for a notice of appeal,
other than the payments ordered above.
_____________________________8-27-2007______
M. CHRISTINA
ARMIJO
UNITED STATES DISTRICT JUDGE |
