
    Thomas G. DEAN, Plaintiff, v. ARA ENVIRONMENTAL SERVICES, INC., Beverly Enterprises, and K-Mart Corporation, Defendants.
    No. 1:88-CV-55-RHH.
    United States District Court, N.D. Georgia, Atlanta Division.
    June 27, 1988.
    Thomas G. Dean, Atlanta, Ga., pro se.
    James W. Friedewald, Edwards Friedewald & Grayson, Marietta, Ga., for K-Mart Corp.
    Leslie A. Dent, Janet L. Bettis, Hansell & Post, Atlanta, Ga., for ARA Environmental Services, Inc.
    Gary Richard Kessler, Paul B. Lindemann, Jackson Lewis Schnitzler & Krupman, Atlanta, Ga., for Beverly Enterprises.
   ORDER

ROBERT H. HALL, District Judge.

Pro se plaintiff in this action is an excessively litigious litigant in this court. Dean has filed no less than 34 cases with this court, 14 of which have been summarily dismissed as frivolous pursuant to the provisions of 28 U.S.C. § 1915(d). See Appendix A (for a full recitation of the cases brought by plaintiff in this district since 1982 and the disposition of those claims). These numerous and frequent filings have resulted in enormous and disproportionate administrative and judicial resources in the handling of plaintiffs frivolous and often harassing actions. Currently before the court are (1) defendants Beverly Enterprises’ motion for summary judgment, (2) defendant K-Mart’s motion to dismiss, (3) defendant ARA Environmental Services’ motion to dismiss and for sanctions and for injunctive relief, and (4) plaintiff Dean’s motion for summary judgment.

FACTS

A. Filings in Federal Court

Since 1982, Dean has filed 34 suits in the Northern District of Georgia. Examples of the defendants against whom Dean has filed suit include the United States of America, Judge J. Owen Forrester, Judge Robert H. Hall, the State of Georgia, the Georgia Department of Transportation, the Georgia Department of Labor, the Georgia Department of Family and Children’s Services, the Georgia Department of Human Resources, the DeKalb Police Department, the DeKalb Magistrates Court, the Georgia Institute of Technology, and the YMCA.

Of the 34 suits filed in this district, fourteen were dismissed as frivolous pursuant to 28 U.S.C. § 1915(d), six were dismissed with prejudice, eight were dismissed for failure to state a claim or as premature, and one judge entered Rule 11 sanctions against Dean for filing a frivolous action. See Appendix A.

Undeterred by this record of failure and sanctions, Dean has filed thirteen appeals in the Eleventh Circuit Court of Appeals. Six of his appeals are still pending, four have been dismissed for failure to pay filing fees, one was dismissed for lack of jurisdiction, a petition for writ of mandamus was denied, and in one case, the Eleventh Circuit affirmed the district court’s dismissal of a suit as frivolous pursuant to § 1915(d).

B. Filings Against Beverly Enterprises

In the current action, Dean alleges that he is owed unpaid wages in the amount of $1,187,507.20 arising from defendant Beverly’s violation of the Fair Labor Standards Act by virtue of judgments awarded him in C87-276A, C87-1011A, and C87-1037A. Dean filed three actions, Thomas G. Dean v. Beverly Enterprises, 1:87-CV-276-RHH (N.D.Ga.), Thomas G. Dean v. Beverly Enterprises, 1:87-CV-1011-RHH (N.D.Ga.), and Thomas G. Dean v. Beverly Enterprises, 1:87-CV-1037-RHH (N.D.Ga.) against defendant Beverly Enterprises apparently claiming under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) that his former employer, Beverly Enterprises, denied him overtime compensation and allegedly terminated him for filing a lawsuit under the FLSA to recover the amount of that compensation. As the three cases arose out of plaintiff’s employment with this defendant and raised common questions of law under the FLSA, this court consolidated these three actions for purposes of discovery, pretrial motions and trial.

On March 25, 1988 this court granted defendant Beverly’s motion to dismiss and dismissed the three actions with prejudice. Plaintiff did not receive a judgment award against defendant Beverly in any of these cases. Plaintiff has failed to contradict the showing of these facts by defendant Beverly Enterprises.

C. Filings Against K-Mart

Plaintiff has previously filed at least one lawsuit against defendant K-Mart. Dean v. Ellington and K-Mart, 1:87-CV-2511-RHH (N.D.Ga.). This court on November 19, 1987 granted summary judgment in favor of defendants. One of plaintiff’s appeals from that order is pending, another was dismissed for lack of jurisdiction. See Appendix A.

In the instant case, defendant K-Mart moves to dismiss because there was no personal service or request for acknowledgement of service in violation of Rule 4, Fed.R.Civ.P. Attorney for defendant K-Mart states that the papers of suit were merely forwarded to him as the attorney for K-Mart in the previous action. The attorney states that he is not the agent for service of K-Mart, nor has he received a request for acknowledgement of service.

D. Filings Against ARA Environmental Services

Although Dean’s only contact with ARA was ARA’s employment of Dean for a six-week period in 1986, Dean has filed four lawsuits and two appeals against ARA. The instant claim was instituted under the FLSA to recover for alleged services rendered in 1987 as a commercial cleaner for ARA. Apparently, Dean contends that he has become an owner of defendant ARA by virtue of the alleged failure to pay him.

On the last page of his Complaint, Dean claims relief from ARA for wages in the amount of $12,480.00 for services rendered in 1987, liquidated damages, attorney’s fees, and costs of this action. Defendant ARA counters simply that Dean was never employed by ARA in 1987. As Dean himself has admitted in his deposition, he was employed by ARA only for a six-week period in 1986. Dean Dep. at 11-12, taken in Dean v. ARA Environmental Services, Inc., No. C86-2786.

Giving plaintiff every benefit of the doubt and assuming he has merely confused the dates of his employment, Dean’s claim is essentially identical to a previous claim by Dean against ARA litigated in Dean v. ARA Environmental Services, Inc., No. C86-2746A. In that case, defendant ARA Environmental Services moved this court to grant partial summary judgment in favor of Dean in the amount of $170.00, the only amount of unpaid overtime that Dean admitted he was entitled to receive. ARA was forced to make such a motion because Dean refused to settle his claim for less than $35,502.50 and defendant, while not admitting liability, was unwilling to go to the expense of contesting Dean’s claim for a mere $170.00 of unpaid overtime. The court granted the motion and denied Dean’s remaining claims. Dean then filed a frivolous Bill of Costs requesting the unsubstantiated sum of $870,-132.00.

In addition to Dean v. ARA Environmental Services, Inc., No. C86-2746A, Dean has filed three other suits and two appeals against ARA, all based on claims for unpaid wages. First, Dean filed a garnishment action in the State Court of DeKalb County on June 12, 1987. In the Affidavit of Garnishment filed in that case, Dean attested that he had received a judgment against ARA in the amount of $32,-480.00 from this court. After a hearing during which counsel for ARA informed the State Court that the federal case was still pending and that no judgment had been entered, the garnishment action was dismissed on July 2, 1987. In December 1987, the DeKalb County State Court granted ARA’s motion for sanctions and attorney’s fees pursuant to Ga.Off’l Code Ann. § 9-15-14 and ordered Dean to pay $1,344.00.

Second, Dean filed the instant action discussed above. Third, Dean filed a suit in July 1987 against ARA in Dean v. Bowers, et al., No. C86-2746A in this court. In that case, Dean alleged that the twelve named defendants conspired to deny Dean his rights in the garnishment action filed in DeKalb County State Court and requested damages of $6,867,430.00. In September 1987 this court dismissed this suit against ARA as frivolous pursuant to 28 U.S.C. § 1915(d). Dean has appealed.

DISCUSSION

A. Motions to Dismiss and for Summary Judgment

Plaintiff has moved for summary judgment in his favor against all defendants in the instant action. The court finds plaintiff’s motion meritless and DENIES it in all respects.

The court GRANTS defendant Beverly Enterprises’ motion for summary judgment as plaintiff has been unable to refute defendant’s showing that he is not entitled to relief on any claim. The court GRANTS defendant K-Mart’s motion to dismiss as defendant has not properly been served. The court GRANTS defendant ARA Environmental Services’ motion to dismiss as plaintiff either by his own admission in a previous case before this court was never employed by ARA during the time for which he claims overtime or because his claim is identical to another claim which was litigated fully in a previous suit in this court.

B. Motion for Sanctions

Defendant ARA Environmental Services also moves this court under Rule 11, Fed.R.Civ.P. for costs and attorneys’ fees. Rule 11 sanctions are appropriate where pleadings are not grounded in fact or warranted by law and are brought to harass others. Dean’s repetitive filing of frivolous lawsuits and behavior in the conduct of these suits lead this court to the rather obvious conclusion that Dean is acting in bad faith to harass this defendant. The filing of the instant action against defendant ARA was not grounded in fact or law. Rule 11 sanctions are richly deserved in this case to punish plaintiff’s conduct and deter future abuses against litigants and the judicial process.

A pro se suit is frivolous where it has no basis in either law or fact. See Tarkowski v. County of Lake, 775 F.2d 173, 176 (7th Cir.1985). Pro se litigants are not immune from Rule 11 sanctions. The court GRANTS defendant ARA Environmental Services’ motion for sanctions and DIRECTS plaintiff to pay costs and attorneys’ fees. Any future suits by this plaintiff against this defendant which are found to be frivolous will result in fines against plaintiff under Rule 11.

C. Motion for Injunctive Relief

Defendant ARA Environmental Services also understandably moves for injunctive relief from further harassing suits by plaintiff. Defendant believes it has no realistic method of deterring Dean’s persistent frivolous litigation other than by the court’s injunctive action. A court can restrict a person from filing frivolous and vexatious lawsuits. He just cannot be completely foreclosed from any access to the court. Procup v. Strickland, 792 F.2d 1069, 1079 (11th Cir.1986); Traylor v. City of Atlanta, No. 86-8181, Nov. 19, 1986 at 784. The Circuit has recognized that a district court has considerable discretion in restricting the filings of an excessive pro se litigator. Id. at 784.

Inasmuch as the court has found that plaintiff’s only contact with this defendant was a six-week period of employment and the conduct of the litigation between the parties, the court ENJOINS plaintiff from filing any lawsuits pursuant to the Fair Labor Standards Act arising from that period of employment. In addition, plaintiff may not have the benefit of the service of process of the United States Marshal’s office in any future filings involving this defendant. See Traylor v. City of Atlanta, 805 F.2d 1420 (11th Cir.1986).

SO ORDERED.

APPENDIX A

SUMMARY OF DISPOSITIONS

USDC Cases

2 Pending (* 31, 33)

6 Dismissed With Prejudice (* 4, 15, 18, 20, 24, 34)

14 Dismissed Without Prejudice per 28 U.S.C. § 1915(d) (* 10,16,17,19, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32)

_8 _ Dismissed for failure to state a claim or as premature (* 2, 3, 5, 6, 7, 9, 11, 13) (11 and 13 as premature)

_1_ Dismissed for improper venue (* 1)

1 Def. to recover attorney’s fees ($1,000) from Dean for Dean’s failure to comply with Rule 11. (* 8)

_1_ Dean was granted summary judgment on FSLA claims ($170. plus costs); and Def.

was granted summary judgment on remainder of Pi’s claims for damages. (* 14)

_1_ Order denied Dean to proceed in forma pauperis, Dean never paid filing fee. (* 12)

Criminal Case

_Order adopted Magistrate’s Report, Recommendation and Order that petitioner’s petition for writ of habeas corpus be denied as premature. (* 35)

USCA Cases

6 Pending (* 13, 14, 18, 24, 29, 30)

_4_ Dismissed for failure to pay filing fees (* 6, 17, 19, 20)

_1_ Dismissed for lack of jurisdiction (* 14)

_1^_ Petition for writ of mandamus denied pursuant to 28 U.S.C. § 1915(d). (* 16)

_1_ Judgment affirming District Court decision (frivolous) (* 16)

* See Corresponding Orders in Notebook “Index of Cases filed by Thomas G. Dean.”

1982 CASES (ARCHIVES)

1. Dean v. Dept, of Labor, et al. l:CV-82-1142 (114 of 316)

Opened: 5-28-82 Closed: 9/27/82 Dismissed for improper venue

2. Dean v. USA l:CV-82-1288 (131 of 316)

Opened: 6/21/82 Closed: 9/27/82 Dismissed pursuant to Fed.R.Civ.P. 8(a) and sufficient particularity.

3. Dean v. USA l:CV-82-2267 (239 of 316)

Opened: 10/19/82 Closed: 12/9/82 Dismissed for failure to state a claim and

4. Dean v. Faucett

ACCESSION # 021870094 LOCATION # F0166531 SAN

(e) for failure to state a claim with

lack of subject matter jurisdiction.

l:CV-82-2298 (241 of 316)

Opened: 12/29/82 Closed: 1/17/84

Dismissed With Prejudice for failure to appear for his properly noticed deposition. (Defendant to recover $157.00 plus costs)

1983 CASES (ARCHIVES) ACCESSION # 021880093

„ .... LOCATION # J0930916 SAN

„ .... 5. Dean v. Carter, et al. -

LCV-83-72 (8 of 274)

Opened: 1/14/83 Closed: 4/27/83 Dismissed re: repetitive; failure to state a claim

6. Dean v. USA l:CV-83-569 (54 of 274)

Opened: 3/22/83 Closed: 8/31/83 Dismissed for failure to state a claim APPEAL # 83-8675

Dismissed for failure to pay filing fees

7. Dean v. Village Inn l:CV-83-2072 (205 of 274)

Opened: 9/22/83 Closed: 8/17/84 Dismissed for lack of subject matter jurisdiction

1984 CASES (ARCHIVES)

8. Dean v. Alex Furniture, Inc.

LCV-84-997 (97 of 247)

Opened: 5/17/84 Closed: 1/30/85 Finding in favor of Defendant (Dean in violation of Rule 11)

(Defendant to recover $1,000 of attorney’s fees)

9. Dean v. USA LCV-84-1336 (133 of 247)

Opened: 7/6/84 Closed: 11/21/84 Dismissed for failure to state a claim

1985 CASES (ARCHIVES)

10. Dean v. Meat City

l:CV-85-3206 (110 of 230)

ACCESSION #021880153 LOCATION # J0154521 SAN

ACCESSION #021880326 LOCATION # J0310945 SAN

Opened: 6/11/85 Closed: 9/3/85

Dismissed per 28 U.S.C. § 1915(d)

11. Dean v. USA, et al. l:CV-85-4444 (208 of 230)

Opened: 11/15/85 Closed: 12/11/85

Dismissed Without Prejudice pursuant to 28 U.S.C. § 1915(d) for failure to state a claim and as premature.

1986 CASES

12. Dean v. USA l:CV-86-2381

Opened: 11/4/86 Closed:

Order denied Dean to proceed in forma pauperis; Dean never paid filing fee

13. Dean v. Ellington and K-Mart l:CV-86-2511

Opened: 11/20/86 Closed: 11/19/87

Dismissed Without Prejudice for failure to state a claim and as premature. (Order not in docket)

APPEAL # 87-8929

Pending; awaiting record to send to screening APPEAL # 087-8480 Dismissed for lack of jurisdiction

14. Dean v. ARA Environmental l:CV-86-2746

Opened: 12/29/86 Closed: 2/17/88

Summary Judgment granted for plaintiff in the amount of $170.00 on FSLA claims plus costs; and Summary judgment granted for Def. on remainder of Pi’s claims for damages.

APPEAL # 88-8152 Pending; ARA brief due 6/3/88.

1987 CASES

15. Dean v. Beverly Enterprises l:87-CV-276

Filed: 2/18/87 Closed: 3/25/88

Dismissed With Prejudice; costs awarded to defendant. (This order dismissed (3) actions: 1.-87-CV-276, 1:87-CV-1011, 1:87-CV-1037)

16. Dean v. USA L87-CV-620

Filed: 4/1/87 Closed: 5/22/87 Dismissed per 28 U.S.C. § 1915(d)

APPEAL # 87-2173

Petition for writ of mandamus denied pursuant to 28 U.S.C. § 1915(d).

APPEAL # 87-8403

Judgment affirming Dist. Ct. judgment (frivolous)

17. Dean v. State of Georgia, et al.

1:87-CV-1012

Filed: 5/15/87 Closed: 6/25/87 Dismissed per 28 U.S.C. § 1915(d)

APPEAL # 87-8478

Dismissed for failure to pay filing fee (9/13/87)

18. Dean v. Beverly Enterprises 1:87-CV-1011

Filed: 5/19/87 Closed: 3/25/88

Dismissed With Prejudice; costs awarded to defendant. (This order dismissed (3) actions: l:87-CV-276, 1:87-CV-1011, 1:87-CV-1037)

APPEAL # 88-8153

Pending; Dean brief due May 28, 1988

19. Dean v. Trust Company 1:87-CV-1039

Filed: 5/22/87 Closed: 6/23/87

Dismissed Without Prejudice pursuant to 28 U.S.C. § 1915(d) as frivolous.

APPEAL # 87-8528

Dismissed for failure to pay filing fee (12/7/87) because appeal was frivolous.

20. Dean v. ARA Environmental 1:87-CV-1038

Filed: 5/22/87 Closed: 6/15/87

Dismissed With Prejudice APPEAL # 87-8584

Motion to Appeal denied because frivolous (11/19/87)

Dismissed for failure to pay fees (12/2/87)

21. Dean v. DeKalb County Magistrate 1:87-CV-1056

Filed: 5/26/87 Closed: 8/7/88

Dismissed per 28 U.S.C. § 1915(d)

22. Dean v. Hall U87-CV-1057

Filed: 5/26/87 Closed: 6/5/87

Dismissed per 28 U.S.C. § 1915(d)

23. Dean v. USA 1:87-CV-1076

Filed: 5/27/87 Closed: 7/2/87

Dismissed per 28 U.S.C. § 1915(d)

24. Dean v. Williams 1:87-CV-1037

Filed: 5/28/87 Closed: 3/25/88

Dismissed With Prejudice; costs awarded to defendant. (This order dismissed (3) actions: l:87-CV-276, 1:87-CV-1011, 1:87-CV-1037)

APPEAL # 88-8256

Pending; Order to proceed (Dean as Pauper)

25. Dean v. Dept, of Labor 1:87-CV-1184

Filed: 6/8/87 Closed: 11/19/87 Dismissed as frivolous per 28 U.S.C. § 1915(d).

APPEAL # 87-8965 Pending; Motion to dismiss

26. Dean v. Dept, of Family and Children Services 1:87-CV-1185

Filed: 6/8/87 Closed: 8/7/87

Dismissed Without Prejudice pursuant to 28 U.S.C. § 1915(d).

27. Dean v. Fulton County State Court 1:87-CV-1248

Filed: 6/15/87 Closed: 8/7/87

Dismissed as frivolous pursuant to 28 U.S.C. § 1915(d).

28. Dean v. Benson 1:87-CV-1502

Filed: 7/6/87 Closed: 8/17/87

Dismissed as frivolous pursuant to 28 U.S.C. § 1915(d).

29. Dean v. Bowers 1:87-CV-1625

Filed: 7/21/87 Closed: 9/16/87

Dismissed as frivolous pursuant to 28 U.S.C. § 1915(d).

APPEAL # 87-8783

Pending; record sent to court for decision

30. Dean v. Jones, et al. l:87-CV-2543

Filed: 11/23/87 Closed: 12/23/87 Dismissed per 28 U.S.C. § 1915(d)

APPEAL # 88-8005 Pending; Motion to dismiss 1988 CASES

31. Dean v. K-Mart Corp., et al. l:88-CV-55

Filed: 1/12/88

32.

33.

Pending;

Answer filed 4/12/88 Motion to Dismiss filed 4/12/88

PL’s opp. to Answer and Motion to Dismiss filed 4/18/88 Dean v. Georgia Dept, of Human Resources L88-CV-474

Filed: 3/9/88 Closed: 4/25/88

Dismissed Without Prejudice per 28 U.S.C. § 1915(d)

Dean v. USA L88-CV-594 Filed: 3/23/88

Pending;

Order denying Plaintiff’s Motion for immediate order to compel payment; Motion for Sanctions filed 4/26/88 and

34. Dean v. Jackson Service Co., et al.

1:88-CV-718

Filed: 3/31/88 Closed: 4/25/88

Dismissed With Prejudice pursuant to 28 U.S.C. § 1915(d).

CRIMINAL CASE 3A U.S. v. Dean

LCR-85-396 D

Opened: 10/2/85 Closed: 6/23/86 Magistrates Order and Recommendation 
      
      . This discussion is meant only to be illustrative of the litigation history of Mr. Dean. See Appendix A.
     