Facundo et al v. United States of America et al, No. 4:2009cv01271 - Document 17 (N.D. Ohio 2009)
Court Description: Memorandum Opinion and Order. Plaintiff has established a pattern of filing complaints in this court which are patently frivolous and vexatious, and which appear calculated to harass the court and abuse the judicial process. Accordingly, Enr ique Facundo is permanently enjoined from filing any new lawsuits or other documents without seeking and obtaining leave of court as set forth in this Order. Further, to prevent further harrassment of the court by plaintiff and the waste of this cou rt's limited resources, the Clerk's office is hereby ordered as follows: (1) Any document submitted by Facundo prior to his obtaining leave to filed shall not be filed unless it is specifically identified as a "Motion Pursuant to the C ourt Order Seeking Leave to File," and unless it contains: 1) an affidavit or sworn declaration as required by this order; 2) a copy of this Memorandum of Opinion; and 3) the exhibits required by this Memorandum of Opinion. (2) The Clerk's Office shall not accept any filing fees, CIS forms, cover sheets, in forma pauperis applications, summones, or U.S. Marshal forms, in connection with any Motion Pursuant to Court Order Seeking Leave to File which Facundo files, unless and until leav e is granted. Accordingly, plaintiff's request to proceed in forma pauperis is granted and this action is dismissed pursuant to 28 U.S.C. Section 1915(e). Further, the court Certifies pursuant to 28 U.S.C. Section 1915(a)(3) that an appeal from this decision could not be taken in good faith. (Related document 1 ). Signed by Judge Peter C. Economus on 7/23/2009. (H,LA)
Download PDF
<![CDATA[
Facundo et al v. United States of America et al Doc. 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ENRIQUE FACUNDO, ) ) ) ) ) ) ) ) ) Plaintiff, v. UNITED STATES OF AMERICA, Defendant. CASE NO. 4:09 CV 1271 JUDGE PETER C. ECONOMUS MEMORANDUM OF OPINION AND ORDER On June 4, 2009, plaintiff pro se Enrique Facundo filed this in forma America.1 pauperis action against the United States of The complaint does not contain allegations which are intelligible to this court. For the reasons stated below, this action is dismissed pursuant to 28 U.S.C. § 1915(e), and plaintiff is enjoined from filing any new lawsuits or other documents in this court without seeking and obtaining leave to do so. Further, the Clerk is instructed not to accept or file any further documents in this action, with the exception of a Notice of Appeal and related documents. Although pro se pleadings are liberally construed, Boag 1 The caption also lists Angelina Facundo and Jose A. Facundo, but neither of these individuals appear to have signed the complaint. Dockets.Justia.com v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact.2 Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). Principles requiring generous construction of pro se pleadings are not without limits. Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985). A complaint must contain either direct or inferential allegations respecting all the material elements of some viable legal theory to satisfy federal notice pleading requirements. See Schied v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988). District courts are not required to conjure up questions never squarely presented to them or to construct full blown Beaudett, 775 F.2d at 1278. claims from sentence fragments. To do so would "require ...[the courts] to explore exhaustively all potential claims of a pro se plaintiff, ... [and] would...transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies 2 A claim may be dismissed sua sponte, without prior notice to the plaintiff and without service of process on the defendant, if the court explicitly states that it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim for one of the reasons set forth in the statute. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997); Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert. denied, 474 U.S. 1054 (1986); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d 1177, 1179 (6th Cir. 1985). 2 for a party." Id. at 1278. Even liberally construed, the complaint does not contain allegations reasonably suggesting plaintiff might have a valid federal claim, and indeed does not contain any coherent assertions whatsoever. This action must therefore be dismissed. The court takes judicial notice of its own records in observing that this is at least the eighth lawsuit filed by plaintiff to be summarily dismissed by this court.3 Federal courts have both the inherent power and constitutional obligation to protect their jurisdiction from conduct which impairs the ability to carry out Article III functions. Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir. 1986). Moreover, this court has the responsibility to prevent litigants from unnecessarily encroaching on judicial machinery needed by others. Id. To achieve these ends, the United States Court of Appeals for the Sixth Circuit has approved enjoining vexatious and harassing litigants by requiring them to obtain leave of court before submitting additional filings. Filipas v. Lemons, 835 F.2d 1145 (6th Cir. 1987); Wrenn v. Vanderbilt Univ. Hosp., Nos. 94-5453, 94-5593, 1995 WL 111480 (6th Cir. Mar. 15, 1995)(authorizing a court to enjoin harassing litigation under its inherent authority and the All Writs Act, 28 U.S.C. § 1651(a)(citations omitted)).4 3 The previous lawsuits filed by Facundo and summarily dismissed in this court are: 4:08 CV 2557, 4:08 CV 1563, 4:05 CV 1333, 4:03 CV 213, 4:02 CV 2468, 4:01 CV 972, and 1:01 CV 40. 4 Other circuits have endorsed enjoining these types of filers. See, Day v. Allstate Ins. Co.,788 F.2d 1110 (5th Cir.1986); Cotner v. Hopkins, 795 F.2d 900 (10th Cir. 1986); 3 Plaintiff has established a pattern of filing complaints in this court which are patently frivolous and vexatious, and which appear calculated to harass the court and abuse the judicial process.5 Accordingly, Enrique Facundo is permanently enjoined from filing any new lawsuits or other documents without seeking and obtaining leave of court in accordance with the following: 1. He must file a "Motion Pursuant to Court Order Seeking Leave to File" with any document he proposes to file and he must attach a copy of this Order to it (any such motion should be filed in a miscellaneous case). 2. As an exhibit to any motion seeking such leave, he must also attach a declaration which has been prepared pursuant to 28 U.S.C. § 1746 or a sworn affidavit certifying that (1) the document raises a new issue which has never been previously raised by him in this or any other court, (2) the claim or issue is not frivolous, and (3) the document is not filed in bad faith. 3. By means of a second exhibit, he must identify and list: (a) the full caption of each and every suit which has been previously filed by him or on his behalf in any court against each and every defendant in any new suit he wishes to file, and (b) the full caption of each and every suit which he has currently pending. 4. As a third exhibit to the motion, he must provide a copy of each complaint identified and listed in accordance with the foregoing paragraph Procup v. Strickland, 792 F.2d 1069 (11th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984); In re Martin-Trigona, 763 F.2d 140 (2d Cir. 1985); In re Green, 669 F.2d 779 (D.C. Cir. 1981)(per curiam); Green v. Warden, 699 F.2d 364 (7th Cir. 1983), cert. denied, 461 U.S. 960 (1983); Green v. White, 616 F.2d 1054 (8th Cir. 1980) (per curiam); Gordon v. Dep't of Justice, 558 F.2d 618 (1st Cir. 1977); Gambocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1972). 5 Since the filing of this action, Facundo has filed a plethora of frivolous letters and motions, which are reflected in the docket for this case. 4 3 and a certified record of its disposition. The court may deny any motion for leave to file if the proposed document is frivolous, vexatious or harassing. motion is denied, the document shall not be filed. If the Further, plaintiff's failure to comply with the terms of this Order shall be sufficient ground for this court to deny any motion for leave to file, and may be considered an act of contempt for which he may be punished accordingly. Further, to prevent further harassment of the court by plaintiff and the waste of this court's limited resources, the Clerk's Office is hereby ordered as follows: (1) obtaining Any document submitted by Facundo prior to his leave to file shall not be filed unless it is specifically identified as a "Motion Pursuant to Court Order Seeking Leave to File," and unless it contains: 1) an affidavit or sworn declaration as required by this order; 2) a copy of this Memorandum of Opinion; and, 3) the exhibits required by this Memorandum of Opinion. (2) The Clerk's Office shall not accept any filing fees, CIS forms, cover sheets, in forma pauperis applications, summonses, or U.S. Marshal Forms, in connection with any Motion Pursuant to Court Order Seeking Leave to File which Facundo files, unless and until leave is granted. Accordingly, plaintiff's request to proceed in forma pauperis is granted and this action is dismissed pursuant to 28 U.S.C. § 1915(e). Further, the court CERTIFIES pursuant to 28 5 U.S.C. §1915(a)(3) that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED. s/Peter C. Economus 7/23/09 PETER C. ECONOMUS UNITED STATES DISTRICT JUDGE 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
