Blochowicz v. Wilkie et al, No. 1:2020cv00111 - Document 11 (S.D. Ga. 2020)
Court Description: ORDER denying 6 Motion Access to E-File; granting 8 Motion to Intervene; denying 9 Motion for Recusal. The Court orders Jeffrey M. Blochowicz added as Plaintiff. Further, the Court overrules the objections to 7 Order and dismisses this case without prejudice. This case stands closed. Signed by Chief Judge J. Randal Hall on 8/25/2020. (pts)
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Blochowicz v. Wilkie et al Doc. 11 Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 1 of 13 FiLED U.S. DISTRICT COURT AUGUSTA OlV. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA 20 AUG 25 FH I-56 AUGUSTA DIVISION 2 KIMBERLY M. BLOCHOWICZ, * Ph.D., MSN, RN, ADA Advocate * CLERK PGA. SO.Di For Jeffrey M. Blochowicz, and * * JEFFREY M. BLOCHOWICZ, * * Plaintiffs * * V. CV 120-111 * * ROBERT WILKIE, Individually and in His Official Capacity as Secretary of Veterans Affairs, et al. , * * * * * Defendants. ORDER On August 4, 2020, Plaintiff Kimberly M. Blochowicz, proceeding pro se and paying the full fee for a civil action. filed a 331-page attached, naming Magistrate Judge U impermissible requirement complaint. at with over least correctly forty-five identified shotgun pleading. Federal Rule of 50 0 of it the pages exhibits Defendants. complaint explained Civil of the Procedure The as an pleading 8(a) , and directed Plaintiff to file an amended complaint that complies with the (See doc. short no. and plain 5.) statement requirements of Rule 8. The Magistrate Judge also explained failure to comply with the instructions in the repleading order could Dockets.Justia.com Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 2 of 13 result in a recommendation for dismissal of the (See case. id. at 6.) The Plaintiff(s) responded with a flurry of filings. Court addresses each filing in turn and explains why the Court is dismissing the case without prejudice. Motion to Intervene I. Plaintiff Kimberly filed Blochowicz the original complaint in her own name and as an advocate for her husband intervene explaining under when 1.) (Doc . Jeffrey Blochowicz. Federal the Rule case was Mr. Blochowicz of Civil filed now moves Procedure there were to 24(a), criminal charges pending against him that have since been disposed of by an Order of Nolle Prosequi. (See doc. 8 & doc. 10, p. 345 . ) Rule 24(a) (2) allows intervention as of right if "the party's interest in the subject matter of the litigation is direct, substantial and legally protectable. 425 F.3d 1308, 1311 (11th Cir. Co. V. Sandy Lake Props., Inc. 2005) (per curiam] (citation omitted). intervene matter of must the Mt. Hawley Ins. The person seeking to show that [he] has an interest in the subject suit, that [his] ability to protect interest may be impaired by the disposition of the suit 2 that and Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 3 of 13 that existing parties in the suit cannot adequately protect that interest. As Order the // Id. Magistrate there was a Judge noted question in his whether Mrs. August Blochowicz standing to bring claims on behalf of her husband. p. 4.) 2020 6 (Doc. had 5, Although he does "not question [his] wife's ability to represent [his] interests n (doc. 8, p. 2) , Mr. Blochowicz now seeks to join as a Plaintiff. Although he appears to undercut his argument for joining the case as an intervenor, the Court looks beyond the title of the document to properly analyze its substance and recognizes Federal Rule of Civil Procedure 17(a)(3) and Rule 19(a) both contemplate the addition of Mr. Blochowicz to a case brought to challenge alleged violations of his rights and seeking relief on his behalf. own Recognizing it is proper for Mr. Blochowicz to assert his own rights, the Court GRANTS the request to join the case 8) , and DIRECTS the (doc . Clerk to add Jeffrey M. Blochowicz as a Plaintiff. II. Motion to File Electronically The pro se Plaintiffs seek permission to allow them make electronic (Doc . filings. 6.) District of Georgia's policy not to allow utilize electronic filing. ft It \\ is the Southern pro se litigants to Jenkins v. Drummond, No. 3 to CV410- Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 4 of 13 008, 2010 WL 2332700, at *1 n.l (S.D. Ga. May 25, 2010)(citing United States District Southern Court, District of Georgia Administrative Procedures for Filing, Signing, and Verifying Plaintiffs Pleadings and Papers by Electronic Means). no specific demonstration that an inability to offer proceed To the extent they claim it electronically prejudices them. takes longer for them to receive Court orders by United States mail, (doc. 9 pp. 6-7), the Federal Rules of Civil Procedure account for such delays by extending the response deadlines. Fed. R. good cause filing Civ. P. justifying policy. and electronic filing. Plaintiffs Accordingly 6(d) . a the departure Court from DENIES the the fail to Court's motion to show pro se allow (Doc. 6.) III. Motion to Recuse the Magistrate Judge Plaintiffs Judge Brian K also Epps, filed \\ a Motion alleging to Recuse Magistrate Judge Magistrate Epps has deliberately violated their rights and personal liberties in issuing the August 6, 2020 Order, and provide due process [reasonable has wantonly refused to accommodations] and equal protections to them" and has "behaved in a manner inconsistent with that which is needed for full (Doc. 9, p. 2 . ) Plaintiffs' fair. impartial hearings. motion appears to be based on Magistrate Judge Epps requiring them to replead their original 4 Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 5 of 13 complaint and denying without prejudice their request for certain accommodations concerning the prosecution of this case because the requests were premature in light of the pleading deficiencies in the original complaint. The Court has previously explained the rules governing recusal as follows: Recusal 455. is governed by 28 U.S.C. §§ 144 and 459 Jones v. Commonwealth Land Title Ins. Co. , Under Section F. App'x 808, 810 (11th Cir. 2012) . 144, a judge must recuse himself when a party to a district court proceeding "files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party." 28 U.S.C. § 144. "To warrant recusal under § 144, the moving party must allege facts that would convince a reasonable person that bias actually exists." Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000); see also Jones, 459 F. App'x at 811 ("The facts alleged in the affidavit must show that the bias was personal, not judicial in nature." (citing United States v. Archbold-Newball, 554 F.2d 665, 682 (5th Cir. 1977))) . Section 455(a) requires recusal where "an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality." Parker v. Connors (11th Cir. 1988) . favor of 732, 744 recusal. (11th rulings "cannot cast doubts Steel Co. , 855 F.2d Any doubts must be 1510, 1524 resolved in United States v. Kelly, 888 F.2d 1989). Generally, judicial Cir. serve as the basis for recusal or on impartiality unless [the moving party] establishes pervasive bias and prejudice. Jones, 459 F. App'x at 811 (citing Archbold-Newball, 554 F. 2d at 682) . 'Neither a trial judge's comments on lack of evidence , rulings adverse to a party, nor // friction between pervasive bias. the court and counsel constitute Hamm v. Members of Bd. of Regents 5 Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 6 of 13 of state of Fla. , 708 F.2d 647, 651 (11th Cir. 1983) (citations omitted). Baker v. Allen, No. CV 617-079, 2018 WL 9987239, at *1 (S.D. Ga. Mar. 12, 2018) (footnote omitted). Plaintiffs' motion falls woefully short of satisfying the requirements for recusal. sufficient affidavit Not only does the motion but it is based solely on lack a Plaintiffs' disagreement with the legal analysis of the Magistrate Judge. As discussed in detail below, the original complaint accurately characterized as a shotgun pleading. ruling on the request prejudice. Thus for accommodations was was Moreover, the made without if Plaintiffs were to have complied with the requirements of Rule 8 that the complaint be a short and plain statement of their claims. them from re-urging there would be nothing preventing their DENIES the motion for recusal. IV. the Court (Doc. 9.) Objections to the Magistrate Judge's August 6 Order Plaintiffs object to the original Therefore, request. complaint as Magistrate shotgun a Judge pleading labeling the because the Complaint states only keenly-observed facts that, if proved. will allow Punitive [them] Damages to at recover Trial. // injunctive (Doc . 7, p. Compensatory 5.) and Plaintiffs demand the original complaint be accepted by the Court and the 6 Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 7 of 13 United States Marshal serve the summons on all Defendants. (Id. at 7, 9, 11; see also doc. 9, pp. 1, 10-11 (requesting Mr. Blochowicz be added to the original \\ complaint without amending the claim as this case is a public interest case (emphasis in original).) Plaintiffs further object to // the Magistrate Judge's reference to ongoing criminal proceedings W against Mr. Blochowicz because throughout Orders, as [the original well as [t]he complaint]) Subject was Matter established by the State of Georgia. entire case full Fake Jurisdiction // (as stated of was Void Never (Doc. 7, p. 10.) The Court modifies or sets aside non-dispositive rulings by the Magistrate Judge that are contrary to law. // \\ clearly erroneous or . Fed. R. Civ. P. 72(a). A ruling is clearly erroneous when the Magistrate Judge abuses his discretion or the District Judge A is left with a conviction that a mistake has been made. 412-139 ruling definite // and firm Jackson v. Deen, CV 2013 WL 3991793, at *2 (S.D. Ga. Aug. 2, 2013.) is contrary misapplies the law. Here, to law when it fails to follow A or Id. the Court finds no basis for modifying or setting aside any portion of the August 6 Order. The Court with the description of the original complaint as agrees a shotgun pleading that suffers from all of the deficiencies pointed out 7 Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 8 of 13 by the Magistrate Judge and supported by citations to relevant Eleventh Circuit proceedings Order of against Nolle While precedent. Mr. Prosequi it Blochowicz is were after entry of true the disposed the criminal of August 6 by an Order Plaintiffs' disagreement with the charges and orders entered in the state criminal proceedings does not in any way undermine the description in the Order of on-going criminal Moreover, proceedings. accommodations prejudice, in as discussed conducting meaning if the above, case Plaintiffs the were were request for denied willing without to follow pleading requirements such that the case would move forward nothing would prevent Plaintiffs from re-urging their requests. Because the challenged ruling is not clearly erroneous or contrary to law, the Court OVERRULES the objections, (doc. 7) and AFFIRMS the Magistrate Judge's Order. 72(a); Loc. R. 72.2; Staley v. Owens See Fed. R. Civ. P. 367 F. App'x 102, 104 n.l (11th Cir. 2010)(per curiam) . V. Dismissal Without Prejudice Is Appropriate This Court takes a dim view of shotgun pleadings and has recently explained: The Eleventh Circuit particularly opprobrious shotgun pleadings," or pleadings that violate Rules 8(a)(2) of what are 8 IS known as Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 9 of 13 or 10(b) . See Welland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1320-21 (11th Cir. 2015) (recognizing the Eleventh Circuit's salvo of criticism aimed at shotgun Vibe Micro, Inc, v. Shabanets, 878 "thirty-year pleadings"); F.3d 1291, 1295 (11th Cir. 2018) ("Courts in the Eleventh Circuit have little tolerance for shotgun pleadings."). There are four types of shotgun pleadings: first, those "containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before.. . ." 792 Weiland, F.3d at 1321. The second with conclusory, vague, and obviously connected to any Id. at 1322. Third particular cause of action, are those that do not separate each claim into a separate count. See id. at 1322-23. Fourth is the relatively rare sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts . . . or which of the defendants the claim is brought against." Id. at 1323. type is "replete immaterial facts not // The purpose of Rules 8(a) (2) and 10(b) is to allow the defendant to discern what the plaintiff is claiming and frame a responsive pleading and to allow the court to determine whether the plaintiff has stated a claim for which relief can be granted. See Weiland, required to 792 "sift F.3d at through 1320. the Courts facts are presented decide for [itself] which [are] material. n not and Beckwith V. BellSouth Telecomms. Inc., 146 F. App'x 368, 372 (11th Cir. 2005) (quotation omitted). Cummings v. Mitchell, No. CV 118-161, 2020 WL 1491751, at *2 (S .D. Ga. Mar. district court pleading \\ statement at of 17, to least her 2020) . The Eleventh give plaintiff one claims a chance to before 9 Circuit who files replead dismissing a requires a a more her shotgun definite case with Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 10 of 13 prejudice. Embree v. Wyndham Worldwide Corp., 779 F. App' x 658, 662 (11th Cir. 2019) (per curiam) (citation omitted). Here, the opportunity Magistrate to replead Judge the sua sponte original provided shotgun an pleading. Plaintiffs responded by arguing the original complaint must be (see accepted submitting repeats a the Part IV, 335-page pleading supra,) amended errors and then doubling (doc. complaint. specifically down by which 10) by identified the Magistrate Judge in his August 6 Order and again qualifies as a shotgun pleading. For the example. Magistrate Judge warned against (Doc . incorporating the allegations of all preceding counts. 6 , p . 2 & n. 1.) facts" from (Claim The amended complaint again incorporates g-g.:r doc. 7 reallege [s] above"; all p. facts 10, p. 2, reallege[s] all facts from Claims 1 5, above"; p. 321, Claim 8 through (See preceding claims. 3 all 316 and 4 reallege [s] all facts from claims 1 330-31 from Claim claims 15, 1-14 pp. 330-31, above.") The Magistrate Judge likewise warned against reprinting emails and letters within the complaint. (doc . Plaintiffs again include such material. pp. 131-34 143-46, 148-53, 220-23 10 6, p. 2 n . 2) , but (See, e.g., doc. 10, 227-34 241-44, 259-62.) Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 11 of 13 Plaintiffs also allege claims Defendants against without specifying which of the over forty-five Defendants are responsible for specific (See, acts. id. g•g ' at 321 (alleging RICO claim against "defendants" who "committed the 7 above"; p. acts and/or omissions alleged in Claims 1 through 323 ("defendants violated the Civil Service Reform Act (CSRA) by discriminating and retaliating against [Mrs. Blochowicz] for being married to Jeffrey M. Blochowicz"); p. 330-31 (Bad Faith Claim never mentions any defendant). opportunity to replead the fact deficiencies repeat the given the Plaintiffs have not attempted to cure identified very In sum, by the problems Magistrate identified in and Judge the in original complaint. The Magistrate Judge warned Plaintiffs their case could be dismissed if they did not comply with the Federal Rules of Civil Procedure concerning a short and plain statement of a claim. Plaintiffs objected to the order to replead, made no effort to comply with the repleading instructions, and responded with demands to the Court for acquiescence to their preferred pleading style. overruled the objections As discussed above, the to the August 6 Order Court has and finds Plaintiffs' original and amended complaints are impermissible shotgun pleadings. 11 Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 12 of 13 the Thus, Court concludes it is appropriate to dismiss a shotgun the case without prejudice for failing to correct Weil v. Phillips, No. 19-14185, 2020 WL 2764701, at pleading. *2 (11th Cir. May 27, 2020) (per curiam) (rejecting claim of pro se litigant that naming twenty defendants excused him from filing complaint putting each on notice of particular claims and dismissing shotgun pleading after plaintiff failed Jackson v. correct deficiency after given chance to replead) ,Bank of Am., N.A., 898 F.3d 1348, 2018)(failing to comply with court 1358-59 to (11th Cir. order to correct shotgun pleading by filing repleader with same deficiency may result in dismissal of case); see also Equity Lifestyle Props. , V. Fla. Mowing & Landscape Serv., Inc . 556 F.3d 1232, Inc. 1240 (11th Cir. 2009) (citing Fed. R. Civ. P. 41(b) and recognizing Court's inherent authority to manage its docket by dismissing claims to achieve orderly disposition of cases); Owens V. Pinellas Cnty. Sheriff's Dep't, 331 F. App'x 654, 656 (11th Cir. 2009) (per curiam) (finding dismissal without prejudice generally appropriate pursuant to Rule 41(b) where plaintiff has failed to comply with a court order. litigant has been Army Air Force forewarned Exch. Serv., ff (citation 720 F.2d especially where the omitted); 1495, 1499 Dynes (11th v. Cir. 1983) (per curiam) (finding no abuse of discretion where case 12 Case 1:20-cv-00111-JRH-BKE Document 11 Filed 08/25/20 Page 13 of 13 dismissed without prejudice, allowing for party to refile. based on failure to comply with one court order) . VI. For Conclusion the reasons set forth above, the Court motion to add Jeffrey M. Blochowicz as a Plaintiff. GRANTS the (Doc. 8.) The Court DENIES the motions to allow electronic filing and to recuse Magistrate Judge Epps. (Docs. 6, 9 .) The Court further OVERRULES the objections to the August 6 Order, (doc . 7), and DISMISSES Plaintiffs' the repeated case submission without of prejudice shotgun based on which pleadings fail to satisfy the pleading requirements of the Federal Rules of Civil Procedure and do not give Defendants adequate notice of the claims against them and the basis therefore. ORDER ENTERED at Augusta, Georgia, this day August, 2020. J. rajjdae^all, c/ief judge UNITED~i^^TES DISTRICT COURT sail' 13 RN DISTRICT OF GEORGIA of
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