
    Ashton R. O’DWYER, Jr. v. The State of LOUISIANA, et al.
    Civil Action No. 06-7280.
    United States District Court, E.D. Louisiana.
    Sept. 25, 2008.
    
      Ashton R. O’Dwyer, Jr., Attorney at Law, New Orleans, LA, pro se.
    Joseph W. Hecker, Joseph W. Hecker, Attorney at Law, Baton Rouge, LA, for Ashton R. O’Dwyer, Jr.
    Michael Courtney Keller, Paul B. Deal, Phyllis Esther Glazer, Louisiana Department of Justice, New Orleans, LA, Patricia Hill Wilton, David Glen Sanders, Louisiana Department of Justice, Rachelle D. Dick, Amanda G. Clark, Forrester & Dick, LLC, Jason A. Bonaventure, State of Louisiana, Office of General Counsel, Baton Rouge, LA, for The State of Louisiana, et al.
   ORDER AND REASONS

HELEN G. BERRIGAN, District Judge.

This matter comes before the Court on (1) motion to stay case pending appeal filed by State of Louisiana, Dept, of Public Safety & Corrections (“LDPSC”), Office of State Police (“LSP”), Trooper John Nelson (“Nelson”) and Trooper Christopher Ivey (“Ivey”)(Rec.Doc. 432); (2) motion to strike filed by the plaintiff (Rec.Doc. 450); (3) motion to enroll as co-counsel filed by Justice Kimball and Louisiana Supreme Court (Ree.Doc. 457); (4) motion to review magistrate’s order and for sanctions filed by the plaintiff (Rec.Doc. 436); (5) motion to enforce court order filed by State of Louisiana, LDPSC, LSP, Nelson and Ivey (Rec.Doc. 444); and (6) motion to set motions for hearing and for oral argument filed by the plaintiff (Rec.Doc. 465). Having considered the record, the memoranda of counsel and the law, the Court has determined the following.

1. MOTION TO STAY

These Louisiana defendants argue that this Court lacks jurisdiction over claims against them pending appeal. They seek a stay of the entire case pending appeal and argue that the plaintiff can not amend his complaint to allege any claims against them during the pendency of the appeal. The plaintiff argues that the State of Louisiana, the LDPSC and the Louisiana Department of Justice are not appellants because only Nelson and Ivey have alleged qualified immunity on appeal. In November 2007, the Court ruled that some of plaintiffs claims survived motions to dismiss, and ordered “initial discovery by the plaintiff shall be limited to the arresting officers, as suggested at oral argument, and as specifically directed and supervised by the Magistrate Judge.” (Rec. Doc. 317, p. 26). Although arresting officers are claiming qualified immunity on appeal and this Court’s jurisdiction over them is lacking, the movers offer no support for the expanded proposition that this Court does not have jurisdiction over the remaining movers. They cite to a single case, Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 524 (5th Cir.2002), which involved the lack of jurisdiction after appeal on the final decision on the merits. Without some clear legal authority, the Court finds that it is unjust for all parties to enjoy the benefits of the stay for those claiming qualified immunity. The Court’s previous order limiting the scope of discovery will be rescinded and the matter referred to the magistrate judge for the formulation of a discovery plan.

2. MOTION TO STRIKE

In this motion, the plaintiff challenges as defamatory and false statements made by Justice Kimball that he “openly bore arms” and that he was arrested in December 2006 and June 2007. Justice Kimball argues that the motion is untimely and moot, and that this Court lacks jurisdiction because of the notice of appeal filed by her. The Court agrees with Justice Kimball that it lacks jurisdiction over her and notes that, in addition, this motion raises a factual dispute that is not properly raised on a motion to strike. This motion lacks merit.

3. MOTION TO ENROLL AS CO-COUNSEL

On July 14, 2008, Justice Kimball and the Louisiana Supreme Court filed a routine motion to enroll additional counsel. The plaintiff filed an opposition to this motion by fax because he maintains that the incoming firm has a conflict of interest, based on the plaintiffs accusations of fraud on the court. The Court has previously rejected the plaintiffs challenges to conflicts allegedly belonging to other parties, and this motion lacks merit.

4. MOTION TO REVIEW MAGISTRATE’S DENIAL OF MOTION TO AMEND

On May 21, 2008, the magistrate judge denied the plaintiffs motion to file a second supplemental and amended petition, granted the motion for sanctions filed by the Louisiana Supreme Court, denied the plaintiffs motion to compel and denied a motion for protective order filed by the Louisiana Department of Justice. (Rec. Doc. 429). The plaintiff challenges parts of the ruling on a number of grounds.

MOTION TO AMEND

Adding new Lemle defendants

The magistrate judge denied the proposed amended complaint to add three Lemle partners because “the facts which form the basis of the plaintiffs claims against these three new defendants were available to him at the time he filed his original petition ...” and “[b]ecause of the undue delay exhibited by plaintiff in urging these new allegations ...” (Rec.Doc. 429, p. 4) The plaintiff argues that the need to name these partners did not arise until the former partners were dismissed on the basis of res jvdicata and attaches correspondence implicating them and disagrees that their addition is untimely when the pleadings are not closed and no discovery has been conducted. The formerly-dismissed Lemle partners file a memorandum in opposition, raising the issue that the “plaintiffs absurd proclamation” are “factually and legally baseless.” (Ree.Doe. 439, p. 4).

The magistrate judge’s ruling was based only on the untimeliness of the amendment to add the defendants. The proposed amendment is against new parties. In light of the admonition of Fed.R.Civ.P. 15 that leave to amend be freely granted and the fact that the newly added defendants are free to raise whatever defenses they find appropriate, the Court will reverse the ruling of the magistrate judge on this issue.

Louisiana Supreme Court

The magistrate judge denied the plaintiffs motion to amend as it related to the reassertion of previously dismissed LPRA-related claims against the Louisiana Supreme Court. She also awarded a sanction in the amount of $500 to be paid to the Louisiana Supreme Court to defray the costs of responding to the motion to amend. As noted by the magistrate judge in dismissing the LPRA claims, this Court had previously held:

The Louisiana Public Records Act claims against the Louisiana Supreme Court were asserted without leave, without a sufficient nexus to the operative facts of this matter and in violation of the Eleventh Amendment, and will be dismissed.

(Rec.Doc. 317). The plaintiff repeatedly and incorrectly argues now that the LPRA claims were dismissed for lack of leave of court only.

The plaintiff also argues that amendment should be allowed because he alleges that the Louisiana Supreme Court is one of the state agency defendants that has waived its Eleventh Amendment immunity by becoming involved in other federal cases. The Court notes that the Louisiana Supreme Court may not be involved in any of the other federal cases and otherwise Court rejects the plaintiffs argument without discussion.

The magistrate judge sanctioned the plaintiff $500 sanction payable to the Louisiana Supreme Court “to defray the attorney’s fees and costs it expended to defray the attorney’s fees and costs it expended in responded to the purported claim a second time.” (Rec.Doc. 429, p. 11). This Court finds that such a sanction under 28 U.S.C. § 1927 is justified and reasonable.

Other Louisiana state defendants

The magistrate judge also held that the official capacity claims against the State of Louisiana, LSP, LDPSC, and the Office of Disciplinary Counsel would be “futile” in light of the Eleventh Amendment immunity. (Rec.Doc. 429, p. 5). The plaintiff again argues that any Eleventh Amendment immunity was waived in the proposed amended complaint based on their “voluntary decision” to invoke federal court jurisdiction in other federal cases. The Court rejects the plaintiffs challenge to the availability of Eleventh Amendment immunity for such claims and finds that permitting amendment in order to again recognize entitlement to immunity would be futile. The Court notes that the state agencies’ involvement in other Katrina cases, especially as plaintiffs, has nothing to do with this plaintiff.

United States/Michael Magner (“Mag-ner”)

The magistrate judge found that the plaintiff admitted that Magner’s involvement is still unknown, FTCA exhaustion is not apparent and “it does not appear that plaintiffs allegations are sufficient to fit within the waiver of sovereign immunity set forth in 28 U.S.C. § 2680(h).” (Rec. Doc. 429, p. 7). This Court previously dismissed the plaintiffs claim against Mag-ner in April 2007 because the facts alleged, if taken as true, do not state a claim that he was more than a bystander. (Rec.Docs. Ill, 159). In November 2007, the Court specifically held:

To the extent that the plaintiff intends to assert any claim against the Untied States, the procedural requirements must be met. To the extent that claim is based solely on the allegations previously made against Magner, that claim will be subject to dismissal for failure to state a claim. To the extent that the plaintiff is making a separate claim under the Freedom of Information Act, that claim will be dismissed without prejudice. The Court may require that a separate suit be filed unless a sufficient direct nexus to the subject matter of this suit is shown in a properly filed motion for leave to amend.

(Rec.Docs. 317, pp. 14-15).

The plaintiff now argues that Magner’s office had an office on the second floor of “Camp Amtrak” and that he specifically pleads that Magner “knew that plaintiff was being falsely imprisoned there, and ... did nothing to facilitate plaintiffs release.” (Rec.Doc. 436, p. 16). He admitted to the magistrate judge that Magner’s involvement is unknown. (Rec.Doc. 429, p. 7). He also makes a Freedom of Information Act claim, yet does not address the magistrate judge’s finding that neither the United States or Magner are proper defendants, or whether there is a sufficient nexus between any FOIA claim and the claims made in this matter. The Court finds that plaintiffs proposed amendment does not cure any deficiency and would be futile.

Additional causes of action against all defendants for obstruction of justice, spoliation of evidence, subornation of perjury and conspiracy to commit perjury

The magistrate judge did not provide detailed reasons for denying the plaintiffs proposed amendment to raise additional claims against the defendants. Rather, she states “While the Court by no means intends to minimize the seriousness of the allegations previously made by plaintiff in this case, such caustic, premature, and threatening rhetoric as sought to be added by plaintiff does little to foster the progress of this case.” (Rec.Doc. 429, p. 8). The Court finds that the plaintiff does have the right to amend to add new claims as evidence unfolds. It would appear that additional information implicating some defendants has come out on appeal, and amendment to conform with that evidence is appropriate. Any amendment is subject to the right of the defendants to file appropriate motions for dismissal and sanctions, and notice is given the plaintiff that sanctions will be imposed if appropriate and that such sanctions may be substantial, if appropriate.

Sanctions

The plaintiff seeks sanctions because of certain information allegedly revealed on appeal. The Court unhesitantly finds that the plaintiffs procedural impasse is of his own making. Deficiencies in his pleadings are his creation and his habit of making allegations without any factual basis has not served him well. The lack of professionalism is counterproductive. He alone is responsible for any lack of legal research, preparation or foresight, and the Court has clearly advised him to retain outside and competent counsel. Sanctions are not appropriate.

Motion to compel discovery

Again, in November 2007, we ordered “initial discovery by the plaintiff shall be limited to the arresting officers, as suggested at oral argument, and as specifically directed and supervised by the Magistrate Judge.” (Rec.Doc. 317, pp. 26-27). This limitation was first raised at oral argument, and the plaintiff did not argue to the Court that the consequences of that limitation would be a total shutdown of discovery once appeal was taken. That consequence was not intended by the undersigned, and that order will be rescinded.

5. MOTION TO ENFORCE COURT ORDER

Certain of the Louisiana defendants argue that the plaintiffs use of the terms “snowball in hell” and “goons” in his opposition to the motion to stay should be subject to the Court’s previously-threatened monetary sanctions. (Rec.Doc. 432, p. 2). The plaintiff disagrees in a defiant opposition rife with sanctionable language. The plaintiff has offered no explanation for this filing. (Rec.Doc. 453).

In its November 21, 2007, Order and Reasons, the Court put the plaintiff on notice as follows:

The plaintiff is a licensed attorney. He has willfully crossed a line that should never have been approached by any member of the Bar of this Court. During its entire tenure on the bench, this Court has never witnessed an attorney’s use of written unprofessional and derogatory language that rivals the plaintiffs in this matter. The plaintiff is formally advised that if, in the future, he includes in any document he files into the record any future language that is challenged by any other party and which the Court finds to be unprofessional or derogatory, the plaintiff will be subject to a fine of $1,000 for each word in the sentence containing offensive language, payable as the Court directs.
To the extent that the plaintiff or any other party is recalling a party’s own use of offensive language during the events involving the arrest and incarceration, inclusion of the language may be acceptable. To the extent the plaintiff is using offensive language directed to another person or party, however, it will be deemed sanctionable. To the extent that the plaintiffs language is obscene or unnecessarily offensive and directed to another party’s alleged conduct, it will be deemed sanctionable.

(Rec.Doc. 317, pp. 25-26).

The Court disagrees that the phrase “[a] snowball’s chance in hell” is sanctionable, while noting that it previously admonished that the use of the term “police goons” “is entirely inappropriate;” “the plaintiff is specifically put on notice that the use of such language is unnecessary, unpersuasive and unprofessional and will be subject to sanctions in the future.” (Rec.Doc. 317, p. 13). The tenor of the plaintiffs opposition in response to the motion, however, has raised the level of his lack of professionalism to inexcusably new heights, encompassing contempt.

The Court finds that the sentences containing the following phrases in the plaintiffs opposition are sanctionable under its previous notice, and presents the total number of words in the sentence containing the objectionable words or phrase in parentheses:

“Louisiana Department of ‘Injustice’ ” (Rec.Doc. 447, pp. 1~2)(57)
“ ‘Broom-Stick’ Deal”
“ ‘Can’t Recall’ Keller”
“ ‘Spear-Chucker’ Glazer”
“Louisiana Department of Injustice” (Rec.Doc. 447, pp. 2 — 3)(62)
“Human scum”
“Sadists”
“Sociopaths”
“Psychopaths”
“Vermin”
“Louisiana Department of ‘Injustice’ ” (Rec.Doc. 447, p. 3)(23)
“ ‘Goon squad’ ” (Rec.Doc. 447, p. 3)(60) “Louisiana Department of ‘Injustice’ ” (Rec.Doc. 447, p. 4)(59)
“Scoundrels” (Rec.Doc. 447, p. 6)(40)

In addition, there are 104 words in the sentence containing the word “goons” in the plaintiffs original opposition to the motion to stay. (Rec.Doc. 443., p. 2) By the Court’s count, the plaintiff has exposed himself to a total potential sanction of $405,000 pursuant to the notice previously given. The movers seek only $20,000 in sanctions.

Under Fed. R. Civ. Pro. 11, a signature by an attorney on any paper filed in the record is a certification “that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... it is not being presented for any improper purpose, such as to harass.... ” The rule further provides that “an appropriate sanction” may be imposed on a signing attorney by the Court “[i]f, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated.”

A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.

Id.

In addition to Rule 11, the Court has inherent power to impose sanctions for abusive conduct.

... “Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.” ... These powers are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”

Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991). “Because of their very potency, inherent powers must be exercised with restraint and discretion.” Id. “A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers, 111 S.Ct. at 2133. The threshold for the use of this inherent power is high and requires a specific finding of bad faith. Toon v. Wackenhut Corrections Corp., 250 F.3d 950, 952 (5th Cir.2001). “If there is a reasonable probability that a lesser sanction will have the desired effect, the court must try the less restrictive measure first.” Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir.1996).

The Court is mindful that it must “exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees ...” Chambers, 111 S.Ct. at 2136. The Court finds that the plaintiff has acted in bad faith in filing the documents containing the challenged language. In light of its previous admonitions to the plaintiff and with the hope that a lesser sanction than arguably called for will deter the plaintiff from future unprofessional conduct, the Court sanctions the plaintiff in the amount of $10,000 payable to the Court’s Attorneys’ Registration and Disciplinary Fund.

Accordingly,

IT IS ORDERED that:

(1) the motion to stay case pending appeal filed by State of Louisiana, Dept, of Public Safety & Corrections, Office of State Police, Trooper John Nelson and Trooper Christopher Ivey is DENIED (Rec.Doc. 432). The Court’s previous order limiting the scope of discovery is RESCINDED and the issue of discovery is REFERRED to the magistrate judge to devise a reasonable discovery plan;

(2) the motion to strike filed by the plaintiff is DENIED (Rec.Doc. 450);

(3) motion to enroll as co-counsel filed by Justice Kimball and Louisiana Supreme Court is GRANTED (Rec.Doc. 457);

(4) the motion to review magistrate’s order and for sanctions filed by the plaintiff is PARTIALLY GRANTED and PARTIALLY DENIED (Rec.Doc. 436);

(5) the motion to enforce court order filed by State of Louisiana, LDPSC, LSP, Nelson and Ivey is PARTIALLY GRANTED and PARTIALLY DENIED (Rec.Doc. 444); the plaintiff shall pay to the Court’s Attorney Registration and Disciplinary Fund a sanction in the amount of $10,000 by October 31, 2008; and

(6) the plaintiffs motion to set motions for hearing and for oral argument is DENIED (Rec.Doc. 465).

IT IS FURTHER ORDERED that the plaintiff shall refrain from using any unprofessional or derogatory language in any future filing into the record. To the extent that the plaintiff or any other party is recalling a party’s own use of offensive language during the events involving the arrest and incarceration, inclusion of the language may be acceptable. In all other respects, it is not. To the extent the plaintiff is using offensive language directed to another party or counsel, it will be deemed sanctionable. To the extent that the plaintiffs language is obscene or unnecessarily offensive and directed to another party’s alleged conduct, it will be deemed sanc-tionable. Violation of this order shall result in sanctions, including a fíne of $1,000 for each word in the sentence containing offensive language and dismissal, if appropriate.  