OPINION
DANIEL HOLCOMBE THOMAS, Senior District Judge.
This civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985(2), (3)
is before the Court on motions to proceed as a class, for leave to proceed in forma pauperis and on an affidavit of recuse
filed by the plaintiff, Enoch Dickinson, Jr., individually and on behalf of others similarly situated as a class.
In the above-styled action, Dickinson brings suit against a federal marshal, a federal deputy marshal, a federal district judge and two private citizens, alleging that a “conspiracy” existed between the defendants giving rise to this cause of action.
The facts surrounding this suit may be briefly capsulated as follows: On November 23, 1973, Dickinson was found guilty of ten counts of mail fraud in violation of 18 U.S.C. § 1341 and was sentenced to imprisonment for a period of five years on each count to run concurrently.
The conviction was affirmed on appeal in
United States v. Dickinson,
496 F.2d 876 (C.A. 5 1974). Presently, Dickinson is incarcerated in the United States Penitentiary in Leavenworth, Kansas. As a result of his conviction Dickinson has instituted this law suit against the defendants.
In paragraph 11 of the “statement of the facts” Dickinson asserts that Jim French, a United States Marshal, Frank Daffin, Deputy United States Marshal and Virgil Pittman, United States District Judge “devised a scheme which created an environmental atmosphere of bias and prejudice by creating the conditions which existed during plaintiff’s trial in November of 1973.” Plaintiff further asserts that “said scheme caused the jury people and prosecution witnesses to become intimately associated with each other, and allowing the jury people to obtain knowledge of the facts in the trials before the trials ever began. . . . ” In paragraph 12 of the “Statement of the Facts” Dickinson alleges that witnesses Robert L. Bulger and Harry M. Oakley “while waiting in the courtroom and hallways to discuss the merits of the plaintiffs trials in the presence of the jury people, and knowing that they were prosecuting witnesses and knowing that the jury people were to serve on the trials of the plaintiffs, and such action created bias and prejudice in the jury people (sic) minds. . . .” Dickinson alleges that he and other members of the class have sustained damages in the amount of $20,000.00 for loss of employment and $1,000,000.00 for illegal imprisonment.
In initiating this civil action, Dickinson has filed an application to proceed in forma pauperis as provided by 28 U.S.C. § 1915. Admittedly, Section 1915(a) of Title 28 permits the commencement of a civil action without the prepayment of fees and costs of security thereof “by a person who makes affidavit that he is unable to pay such costs or give security therefor. . . ”
However, the Court has broad discretion to consider the separate question, under 28 U.S.C. § 1915(d) whether the complaint should be dismissed as “frivolous or malicious.” Section 1915(d) provides:
The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or
is satisfied that the action is frivolous or malicious.
(Emphasis added)
Accordingly, under Section 1915(d), the Court may dismiss an in forma pauperis action “if satisfied that the action is frivolous or malicious.” Moreover, a dismissal under that section is appropriate when the plaintiff is engaged in repetitive litigation concerning issues already determined,
Duhart v. Carlson,
469 F.2d 471, 473 (C.A. 10 1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 1692 (1973), and when the allegations of the complaint are beyond credulity.
Jones v. Bales,
58 F.R.D. 453, 463-464 (N.D.Ga.1972), aff’d 480 F.2d 805 (C.A. 5 1973).
The plaintiff and his complaints are no strangers to this Court.
Moreover, upon reviewing a number of complaints filed by the plaintiff in other federal district courts throughout the country, it api pears without contradiction that Dickinson has instituted a practice of filing civil suits against the prosecution witnesses who testified at his trial in November of 1973.
Although pro se pleadings must be liberally read, especially in the context of civil rights suits, the Court is of the opinion that a determination must be made at this juncture whether the claim made by Dickinson is patently frivolous. Notwithstanding the relax standards for pro se pleadings where the allegations contained in the plaintiff’s complaint are nothing more than conclusions and could not under any circumstances be classified as “facts” which would entitle the plaintiff to relief, the Court may properly dismiss the complaint.
Dailey v. Barrow,
280 F.Supp. 187; 188 (W.D.Mich., 1968);
See McGuire v. Todd,
198 F.2d 60, 63 (C.A. 5 1952).
In
Jones v. Bales,
58 F.R.D. 453 (N.D.Ga.1972) aff’d 480 F.2d 805 (C.A. 5 1973), a convicted felon brought a civil rights action for damages. The court in dismissing the action as frivolous under 28 U.S.C. § 1915(d) stated:
There are compelling reasons for allowing courts broader dismissal powers in forma pauperis suits — especially damage suits brought by convicted prisoners — than in other cases. Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for ‘malicious prosecution’ or abuse of process. Thus indigents, unlike other litigants, approach the courts in a context where they have nothing to loose and everything to gain. The temptation to file complaints that contain facts which cannot be proved is obviously stronger in such a situation. For convicted prisoners with much idle time and free paper, ink, law books, and mailing privileges the temptation is especially strong.
Id. at 463.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
DANIEL HOLCOMBE THOMAS, Senior District Judge.
This civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985(2), (3)
is before the Court on motions to proceed as a class, for leave to proceed in forma pauperis and on an affidavit of recuse
filed by the plaintiff, Enoch Dickinson, Jr., individually and on behalf of others similarly situated as a class.
In the above-styled action, Dickinson brings suit against a federal marshal, a federal deputy marshal, a federal district judge and two private citizens, alleging that a “conspiracy” existed between the defendants giving rise to this cause of action.
The facts surrounding this suit may be briefly capsulated as follows: On November 23, 1973, Dickinson was found guilty of ten counts of mail fraud in violation of 18 U.S.C. § 1341 and was sentenced to imprisonment for a period of five years on each count to run concurrently.
The conviction was affirmed on appeal in
United States v. Dickinson,
496 F.2d 876 (C.A. 5 1974). Presently, Dickinson is incarcerated in the United States Penitentiary in Leavenworth, Kansas. As a result of his conviction Dickinson has instituted this law suit against the defendants.
In paragraph 11 of the “statement of the facts” Dickinson asserts that Jim French, a United States Marshal, Frank Daffin, Deputy United States Marshal and Virgil Pittman, United States District Judge “devised a scheme which created an environmental atmosphere of bias and prejudice by creating the conditions which existed during plaintiff’s trial in November of 1973.” Plaintiff further asserts that “said scheme caused the jury people and prosecution witnesses to become intimately associated with each other, and allowing the jury people to obtain knowledge of the facts in the trials before the trials ever began. . . . ” In paragraph 12 of the “Statement of the Facts” Dickinson alleges that witnesses Robert L. Bulger and Harry M. Oakley “while waiting in the courtroom and hallways to discuss the merits of the plaintiffs trials in the presence of the jury people, and knowing that they were prosecuting witnesses and knowing that the jury people were to serve on the trials of the plaintiffs, and such action created bias and prejudice in the jury people (sic) minds. . . .” Dickinson alleges that he and other members of the class have sustained damages in the amount of $20,000.00 for loss of employment and $1,000,000.00 for illegal imprisonment.
In initiating this civil action, Dickinson has filed an application to proceed in forma pauperis as provided by 28 U.S.C. § 1915. Admittedly, Section 1915(a) of Title 28 permits the commencement of a civil action without the prepayment of fees and costs of security thereof “by a person who makes affidavit that he is unable to pay such costs or give security therefor. . . ”
However, the Court has broad discretion to consider the separate question, under 28 U.S.C. § 1915(d) whether the complaint should be dismissed as “frivolous or malicious.” Section 1915(d) provides:
The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or
is satisfied that the action is frivolous or malicious.
(Emphasis added)
Accordingly, under Section 1915(d), the Court may dismiss an in forma pauperis action “if satisfied that the action is frivolous or malicious.” Moreover, a dismissal under that section is appropriate when the plaintiff is engaged in repetitive litigation concerning issues already determined,
Duhart v. Carlson,
469 F.2d 471, 473 (C.A. 10 1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 1692 (1973), and when the allegations of the complaint are beyond credulity.
Jones v. Bales,
58 F.R.D. 453, 463-464 (N.D.Ga.1972), aff’d 480 F.2d 805 (C.A. 5 1973).
The plaintiff and his complaints are no strangers to this Court.
Moreover, upon reviewing a number of complaints filed by the plaintiff in other federal district courts throughout the country, it api pears without contradiction that Dickinson has instituted a practice of filing civil suits against the prosecution witnesses who testified at his trial in November of 1973.
Although pro se pleadings must be liberally read, especially in the context of civil rights suits, the Court is of the opinion that a determination must be made at this juncture whether the claim made by Dickinson is patently frivolous. Notwithstanding the relax standards for pro se pleadings where the allegations contained in the plaintiff’s complaint are nothing more than conclusions and could not under any circumstances be classified as “facts” which would entitle the plaintiff to relief, the Court may properly dismiss the complaint.
Dailey v. Barrow,
280 F.Supp. 187; 188 (W.D.Mich., 1968);
See McGuire v. Todd,
198 F.2d 60, 63 (C.A. 5 1952).
In
Jones v. Bales,
58 F.R.D. 453 (N.D.Ga.1972) aff’d 480 F.2d 805 (C.A. 5 1973), a convicted felon brought a civil rights action for damages. The court in dismissing the action as frivolous under 28 U.S.C. § 1915(d) stated:
There are compelling reasons for allowing courts broader dismissal powers in forma pauperis suits — especially damage suits brought by convicted prisoners — than in other cases. Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for ‘malicious prosecution’ or abuse of process. Thus indigents, unlike other litigants, approach the courts in a context where they have nothing to loose and everything to gain. The temptation to file complaints that contain facts which cannot be proved is obviously stronger in such a situation. For convicted prisoners with much idle time and free paper, ink, law books, and mailing privileges the temptation is especially strong.
Id. at 463.
As previously stated, plaintiff seeks damages and injunctive relief against a federal judge, two federal marshals and two lay witnesses. It is well settled that a judge, one of the named defendants in this action, is properly cloaked with judicial immunity.
Pierson v. Ray,
386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed. 288 (1967),
Bradley v. Fisher,
13 Wall. 335, 20 L.Ed. 646 (1871).
Accordingly, the plaintiff is barred from suing the above-named defendant on the matters complained of herein. Moreover, plaintiff asserts a cause of action under 42 U.S.C. §§ 1985, 1986 against a federal marshal and federal deputy marshal. It has been held that Sections 1985 and 1986 of Title 42 do not allow relief against the actions of federal officers acting under color of federal law.
Williams v. Halperin,
360 F.Supp. 554, 556 (S.D.N.Y.1973).
Plaintiff in alleging a conspiracy to deprive him of equal protection of the law seeks to invoke 42 U.S.C. § 1985(3) which provides a right of action for damages. However, in order to come within this statute, plaintiff should allege “facts amounting to intentional and purposeful discrimination to the plaintiffs individually or as members of a class.”
Norton
v.
McShane,
332 F.2d 855, 863 (C.A. 5 1964). Applying this standard to the complaint
sub judice,
the Court is of the opinion that the complaint fails to state a claim under 42 U.S.C. § 1985(3), in that plaintiff has failed to
allege any facts that would show that the alleged conspirators were motivated by a racial or otherwise class-based discriminatory animus. Accordingly, the Court concludes that the necessary elements for a cause of action under 42 U.S.C. § 1985(3) are lacking.
Finally, as to the plaintiff's claim against the defendant lay witnesses. As previously stated, this Court is aware of the factual background as to the plaintiff’s claim. Dickinson has unsuccessfully filed civil actions against these two defendants in other federal courts.
In addition, the plaintiff has filed a series of complaints against prosecution witnesses who testified at his trial in November of 1973. Besides the civil actions against defendants Oakley and Bulger in this court and in other federal district courts, Dickinson has instituted suits against the following witnesses and/or their employers: William L. Hurst (Rainforest Products Co.), Kenneth S. Hale (Hill-crest Publications), Edward Duvall (Seth & Jud), Albert Oldham, James B. Stice, Wanda Sells (Sports Marine Products Co.), R. E. Shelton (Greenland Studios). Moreover, the plaintiff has brought civil actions against two government witnesses, William L. Roane and Gerard S. Parent who testified at his trial and even filed suit against an Alabama state employee, James E. Wiggins, who notarized a document which was used against the plaintiff during his trial.
Dickinson has not only sued the above-named individuals in the federal district courts where they reside, but has continually named these same witnesses in civil actions initiated in other federal courts throughout the country.
After careful consideration of the plaintiff’s claim, the Court is of the opinion that dismissal under 28 U.S.C. § 1915(d) is appropriate. To continually allow a convicted felon to file complaint after complaint against prosecution witnesses, who must then seek legal assistance at their own expense, could well cause lay witnesses to be reluctant to testify in criminal cases because of the real possibility of having to defend law suits brought by a convicted felon after that person is confined to a penal institution. Witnesses must be permitted to testify without fear of being sued or having to defend civil damage suits. In the instant case, witnesses Oakley and Bulger testified for the government in Dickinson’s trial for mail fraud. Shortly thereafter, these witnesses were sued by Dickinson. Although these actions were dismissed the defendants, especially Oakley, incurred considerable legal expenses. Subsequently, defendants Oakley and Bulger are sued in this court and their names continue to appear in other complaints that the plaintiff has filed. The Court is of the opinion that repeated suits brought by a felon, such as Dickinson, against lay witnesses could eventually lead to a material interference with the administration of justice in criminal cases in this country.
Accordingly, this Court after considering the plaintiff’s pleadings, and in order to spare the defendant lay witnesses the continued expense and inconvenience of answering a frivolous complaint, ORDERS that the complaint be, and hereby is, DISMISSED pursuant to 28 U.S.C. § 1915(d), prior to the issuance of process. It is FURTHER ORDERED, ADJUDGED and DECREED that each and every claim is dismissed as to the defendants, Jim French, Frank Daffin, Virgil Pittman, Robert L. Bulger and Harry M. Oakley. Having DENIED plaintiff’s motion to proceed in for-ma pauperis, resolution of the motion to proceed as a class is rendered unnecessary.