Eric v. Kelly, No. 5:2019cv04083 - Document 9 (D. Kan. 2019)
Court Description: MEMORANDUM AND ORDER denying 6 Motion for Recusal. This action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 11/6/19. Mailed to pro se party Mark Eric by regular mail. (msb)
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Eric v. Kelly Doc. 9 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS MARK ERI C- House of Helst rom , Plaint iff, v. No. 19- 4083- SAC STATE OF KANSAS and LAURA KELLY, Governor, Defendant s. MEMORANDUM AND ORDER The case com es before t he court on t he plaint iff Mark Eric’s response ( ECF# 8) t o t he Magist rat e Judge’s Not ice and Order t o Show Cause ( ECF# 7) . On Sept em ber 12, 2019, t he court received from Mark Eric a com plaint 1 for filing wit hout paym ent of t he st at ut ory filing fee of $350 and t he adm inist rat ive filing fee of $50. ECF# 1. The next day, he was m ailed a not ice of deficiency t hat st at ed in part t hat he had failed t o subm it a m ot ion t o proceed in form a pauperis ( “ ifp” ) . Mark Eric responded wit h a filing ent it led, “ Clarificat ions on Not ice of Deficiency.” ECF# 3. He argues t here t hat a filing fee is ext ort ion for exercising his const it ut ional right t o pet it ion for redress and cit es Crandall v. St at e of Nevada, 73 U.S. 35 ( 1867) , as 1 He t it les his com plaint , “ Slavery, Hum an Trafficking and Ext ort ion,” and alleges in part t hat he has “ irrevocably revoked his consent t o be governed” by t he St at e of Kansas and t hat he has “ irrevocably revoked any agreem ent s, cont ract s or . . . im plied agreem ent s” wit h t he St at e. ECF# 1. 1 Dockets.Justia.com est ablishing t he right t o free access t o t he court s. He also cont ends his com plaint is properly filed as it was delivered t o t he clerk pursuant t o Fed. R. Civ. P. 5( d) ( 2) ( A) . He also dem anded t hat t he court issue t he sum m onses he subm it t ed. His response included no m ot ion t o proceed ifp or affidavit in support . On Oct ober 16, 2019, Mark Eric filed a pleading ent it led, “ This is a Serious and Urgent Sit uat ion Present ing a Risk of I rreparable Harm — I m m ediat e At t ent ion Required.” ECF# 4. He opens by declaring t hat he does not consent t o a m agist rat e j udge and t hat 34 days have passed since he filed his com plaint and t he defendant s failed t o serve an answer wit hin t he 21- day period of Fed. R. Civ. P. 12. Bot h argum ent s are legally m ist aken. The 21- day period com m ences wit h t he service of a sum m ons and com plaint , and no sum m ons have been issued in t his case for service because t he plaint iff has failed t o pay t he st at ut ory filing fee under 28 U.S.C. § 1914 and failed t o com ply wit h t he st at ut ory ifp provisions of 28 U.S.C. § 1915. Thus, t he 21- day period has yet t o com m ence. See Riggs v. Cit y of Wichit a, Kan., 09- 1105- EFM, 2010 WL 5392018, at * 2 ( D. Kan. Dec. 21, 2010) . The dist rict court m ay designat e a m agist rat e j udge t o perform t he dut ies out lined in 28 U.S.C. § 636( b) ( 1) wit hout t he part ies’ consent . This is what occurred here, as t he m agist rat e j udge issued t he order t o show cause in t he exercise of her powers under § 636( b) ( 1) ( A) . 2 I n t he m eant im e, as t he elect ronic docket sheet reflect s, t he clerk sent a “ pro se packet and elect ronic not ificat ion regist rat ion form ” t o Mark Eric. A week lat er, t he plaint iff filed a pleading ent it led “ Recusal of Sam A. Crow” in which he purport s t o recuse t he assigned dist rict court j udge pursuant t o 28 U.S.C. §§ 144 and 455( a) . He presum es t o allege bias evidenced solely on t he j udge’s failure t o grant him im m ediat e relief when t he defendant s have failed t o file any answers and his com plaint has been on file for m ore t han 21 days. ECF# 6. As not ed above, t he sum m onses have not been issued or served. Thus, t he defendant s have not procedurally default ed as t o j ust ify relief for t he plaint iff. The plaint iff’s m ot ion t o recuse is speculat ive and baseless. The plaint iff has not com plied wit h 28 U.S.C. § 144, because he has subm it t ed no affidavit sufficient in showing personal bias or prej udice against him . This m ot ion is sum m arily denied. The federal st at ut e, 28 U.S.C. § 1914, m andat orily requires t his Court t o collect a filing fee, “ The clerk of each dist rict court shall require t he part ies inst it ut ing any civil act ion or proceeding in such court , whet her by original process, rem oval or ot herwise, t o pay a filing fee ....” 28 U.S.C. § 1914( a) . Thus, t he plaint iff has no basis for arguing t hat a filing fee requirem ent is ext ort ion or an unlawful t aking. The plaint iff’s reliance on Crandall is m isplaced as t he Suprem e Court t here found “ t he right of Am erican cit izens t o t ravel int erst at e—for exam ple, t o pet it ion t heir governm ent in Washingt on—was inherent in our union.” St at e of Kan. v. 3 Unit ed St at es, 16 F.3d 436, 441 ( D.C. Cir. 1994) , cert . denied, 513 U.S. 945 ( 1994) . Not only is t he right t o t ravel not im plicat ed by § 1914, but federal court s since Crandall “ have seldom encount ered eit her federal or st at e laws which direct ly burden int erst at e t ravel.” I d. See also Unit ed St at es v. Wheeler, 254 U.S. 281, 299- 300 ( 1920) ( lim it ed Crandall’s applicabilit y t o t he validit y of st at e act ion t hat burdens federal governm ent funct ions and cit izens’ right s “ growing out of such funct ions.” ) . A part y financially unable t o pay t he st at ut ory filing fee is st ill provided access t o federal court s t hrough t he operat ion of 28 U.S.C. § 1915( a) . This st at ut e aut horizes “ t he com m encem ent , ... of any suit , act ion or proceedings, ..., wit hout prepaym ent of fees or securit y t herefor, by a person who subm it s an affidavit t hat includes a st at em ent of all asset s ... [ and] t hat t he person is unable t o pay such fees ....” I n addit ion, t he “ affidavit shall st at e t he nat ure of t he act ion, defense or appeal and affiant ’s belief t hat t he person is ent it led t o redress.” I d. I n enact ing § 1915, “ Congress recognized t hat “ a lit igant whose filing fees and court cost s are assum ed by t he public, unlike a paying lit igant , lacks an econom ic incent ive t o refrain from filing frivolous, m alicious, or repet it ive lawsuit s.” Dent on v. Hernandez, 504 U.S. 25, 31 ( 1992) ( int ernal quot at ion m arks om it t ed) . “ The right of access t o t he court s is neit her absolut e nor uncondit ional ....” I n re Winslow, 17 F.3d 314, 318 ( 10t h Cir. 1994) ( int ernal quot at ion m arks and bracket s om it t ed) . St at ed anot her way, a part y’s free access t o t he court 4 does not m ean t hat a part y is free t o ignore t he federal st at ut es and orders of t he federal court . The plaint iff Mark Eric is not being denied access based on any alleged inabilit y t o pay but on his repeat ed refusal t o com ply wit h requirem ent s of federal law and t he orders of t his court aft er being not ified t hrough t he not ice of deficiency and t he m agist rat e j udge’s not ice and order t o show cause. The delay in t his case is due t o t he court giving t he plaint iff repeat ed opport unit ies t o cure, all of which he rej ect ed. Under Fed. R. Civ. P. 41( b) , a dist rict court m ay dism iss an act ion, if “ t he plaint iff fails t o prosecut e or t o com ply wit h t hese rules or a court order.” Young v. U.S., 316 Fed. Appx. 764, 771 ( 10t h Cir. Mar. 12, 2009) , cert . dism issed, 558 U.S. 805 ( 2009) . “ This rule has been int erpret ed as perm it t ing dist rict court s t o dism iss act ions sua spont e when one of t hese condit ions is m et .” I d. ( cit ing Link v. Wabash R.R. Co., 370 U.S. 626, 630– 31 ( 1962) ; Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3 ( 10t h Cir.2003) ) . “ I n addit ion, it is well est ablished in t his circuit t hat a dist rict court is not obligat ed t o follow any part icular procedures when dism issing an act ion wit hout prej udice under Rule 41( b) . I d. at * 6 ( cit at ions om it t ed) . The court finds t hat t his act ion m ust be dism issed pursuant t o Rule 41( b) because t he plaint iff has failed t o pay a filing fee required by § 1914, refused t o com ply wit h t he ifp requirem ent s of § 1915( a) , and failed t o show cause why t his act ion should not be dism issed wit hout prej udice. 5 I T I S THEREFORE ORDERED t hat t he plaint iff’s m ot ion t o recuse ( ECF# 6) is denied; I T I S FURTHER ORDERED t hat t his act ion is dism issed wit hout prej udice pursuant t o Fed. R. Civ. P. 41( b) for t he reasons st at ed above. Dat ed t his 6 t h day of Novem ber, 2019, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 6
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