Lay v. McCain et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICHARD LAY 	CIVIL ACTION
VERSUS 	NO. 19-9803
S. W. MCCAIN, ET AL. 	SECTION “R”
ORDER AND REASONS
Before the Court are five motions filed by pro se petitioner Richard Lay,
which Lay styles as: (1) a motion for extension of time, 1 (2) a motion to vacate
and set aside all judgments adopting the Reports and Recommendations
(“R&R”) of the Magistrate Judges, 2 (3) a motion to photocopy and serve the
amended motion to vacate, 3 (4) a motion for summary judgment, 4 and (5) a
motion for reconsideration. 5 Lay has also sent a “letter to the court,” 6 and a
letter entitled “Judicial Notices.” 7 	For the following reasons, the Court
dismisses the motions and provides notice to plaintiff that should he
1 	R. Doc. 85.
2 	R. Doc. 86.
3 	R. Doc. 88.
4 	R. Doc. 89.
5 	R. Doc. 90.
6 	R. Doc. 87.
7 	R. Doc. 91.
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 1 of 9

2
continue to file frivolous motions in this action, the Court will hold a hearing
on the imposition and scope of a pre-filing injunction.
I. 	BACKGROUND
Petitioner Richard Lay is no stranger to this Court as he has filed
numerous motions outlined in the history below. 	In 2019, Lay filed an
application for the writ of habeas corpus under 28 U.S.C. § 2254. 8 	Lay’s
habeas 	petition, 	as 	amended, 	challenged 	his 	2011 	state 	conviction 	by
unanimous jury verdict for battery on a correctional facility employee and
his related multiple offender adjudication. 9 The case was initially referred to
Magistrate Judge Joseph C. Wilkinson, Jr., who issued a Report and
Recommendation (“R&R”) on February 28, 2020, recommending dismissal
of the petition as procedurally barred and otherwise meritless. 10 	Lay filed
numerous objections to Magistrate Judge Wilkinson’s R&R.11 Subsequently,
the Court referred the matter to Magistrate Judge Donna Phillips Currault
for a supplemental R&R addressing Lay’s claim under Ramos v. Louisiana,
140 S. Ct. 1390 (2020). Magistrate Judge Currault recommended dismissal
8 	R. Doc. 1.
9 	R. Doc. 24.
10 	R. Doc. 33.
11 	R. Docs. 36, 37 & 42.
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 2 of 9

3
of Lay’s 	Ramos 	claim in the supplemental R&R.12 	Lay filed multiple
objections to the supplemental R&R. 13
This Court considered the petition, the record, the applicable law, the
Magistrate Judges’ R&Rs, and Lay’s objections, and ultimately adopted the
Magistrate Judges’ R&Rs as its opinion, thereby dismissing Lay’s petition
with prejudice. 14 	In the Order and Reasons dated June 13, 2023, the Court
affirmed 	the 	Magistrate 	Judges’ 	determinations 	that 	Lay’s 	claims 	are
meritless, and further determined that his numerous objections all either:
(1) mirror the underlying claims in the petition, (2) rehash arguments made
before the Magistrate Judges, (3) improperly raise new issues not presented
to the Magistrate Judges, or (4) otherwise lack merit due to their conclusory
nature, failure to address the Magistrate Judges’ relevant recommendations,
or misstatement of the applicable law. 15
In July 2023, Lay filed motions to alter or amend judgment and to
vacate judgment. 16 	The Court denied the motions and declined to issue a
12 	R. Doc. 50.
13 	R. Docs. 51 & 54.
14 	R. Doc. 57.
15 	See generally id.
16 	R. Docs. 64 & 65. The Court construed Lay’s motion, which was styled
as a motion for a new trial under Federal Rule of Civil Procedure 59(a),
as a motion to alter or amend judgment under Federal Rule of Civil
Procedure 59(e). R. Doc. 67.
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 3 of 9

4
Certificate of Appealability (“COA”) as to Lay’s motions. 17 Lay appealed the
Court’s Order and Reasons, and on January 10, 2024, the Fifth Circuit Court
of Appeals dismissed the appeal for want of prosecution. 18
Between February 20, 2024 and April 24, 2024, Lay filed five motions
seeking various relief from the Court. 19 On May 21, 2024, The Court denied
all of Lay’s motions, finding that four of the motions were second or
successive habeas petitions, and declined to issue a COA as to Lay’s
motions. 20 Lay moved for a COA from the Fifth Circuit, which was denied on
January 2, 2025. 21
On July 17, 2024, Lay again filed a petition for a writ of habeas corpus
and certificate of appealability, 22 which the Court dismissed for lack of
jurisdiction as a second or successive habeas application under 28 U.S.C. §
2244(3)(A). 23
17 	R. Doc. 67.
18 	R. Doc. 69. Specifically, the Fifth Circuit issued a notice informing Lay
that his appeal could not proceed until he established whether he had
satisfied a previous sanction imposed against him in a separate case,
Lay v. Tanner, No. 13-30708. 	Lay failed to comply with the Fifth
Circuit’s notice.
19 	R. Docs. 70, 70-1, 71, 73, & 74.
20 	R. Doc. 75. Lay’s motion to appoint counsel was also denied.
21 	R. Doc. 81.
22 	R. Doc. 78.
23 	R. Doc. 79.
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 4 of 9

5
On February 6, 2025, Lay filed a motion to vacate the Court’s orders
denying habeas corpus relief, 24 	which the Court dismissed for lack of
jurisdiction on March 7, 2025. 25
Lay once again has filed numerous motions seeking various relief from
this Court. The Court addresses his motions below.
II. 	LAW AND ANALYSIS
A. Successive Habeas Motions
Federal Rule of Civil Procedure 60(b) provides a limited means for a
party to seek relief from a final judgment in a habeas proceeding. A district
court has broad discretion to grant or deny a motion under Rule 60(b). Lyles
v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 315 (5th Cir. 2017).
Rule 60(b) permits a court to grant relief from a final judgment or order only
upon a showing of one of the following:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) 	fraud 	(whether 	previously 	called 	intrinsic 	or 	extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
24 	R. Doc. 83.
25 	R. Doc. 84.
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 5 of 9

6
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Relief under Rule 60(b) is considered an extraordinary
remedy, but courts may construe the Rule to do substantial justice. 	Carter
v. Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998). 	Courts must balance “the
sanctity of final judgments and the incessant command of the court’s
conscience that justice be done in light of all the facts.” Id. (quotation marks
omitted).
In the habeas context, a district court presented with a Rule 60(b)
motion must first determine whether the motion is properly brought under
Rule 60(b), or whether it is actually a successive habeas petition, in which
case the court lacks jurisdiction to consider it pursuant to 28 U.S.C. § 2244,
prohibiting successive habeas petitions. 	Gonzalez v. Crosby, 545 U.S. 524,
529-30 (2005). In Gonzalez, the Supreme Court held that the difference lies
in the relief that the petitioner seeks. See id. A petitioner submits a motion
under Rule 60(b) when the motion challenges “some defect in the integrity
of the federal habeas proceedings.” Id. at 532. By contrast, courts consider
a motion to be a successive habeas petition when the motion is substantive,
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 6 of 9

7
seeks “to add a new ground for relief,” or attacks “the federal court’s previous
resolution of claim on the merits.” Gonzalez, 545 U.S. at 532.
The Court finds each of petitioner’s motions to be successive habeas
petitions. 	Gonzalez, 545 U.S. at 529-30. Lay’s rambling motions are often
unclear, but he primarily raises issues that this Court has already addressed.
Lay does not invoke or allege any of the first five enumerated grounds for
relief under Rule 60(b). He does not allege “some defect in the integrity of
the federal habeas proceedings,” id. at 532, but instead attempts to revisit
the constitutionality of his conviction and sentence on new grounds. These
motions are thus successive. See id.
Petitioner 	is 	required 	under 	28 	U.S.C. 	§ 	2244 	to 	“move 	in 	the
appropriate court of appeals for an order authorizing the district court to
consider a successive habeas application” before filing. 	Absent permission
of the Fifth Circuit, the Court lacks jurisdiction to entertain petitioner’s
successive habeas claim. See Burton v. Stewart, 549 U.S. 147, 157 (2007).
B. Notice of Potential Pre-Filing Injunction
As outlined in the background section infra, Lay is no stranger to this
Court. District courts have the authority to impose pre-filing injunctions to
“deter vexatious, abusive, and harassing litigation.” 	Baum v. Blue Moon
Ventures, LLC, 513 F.3d 181, 187 (5th Cir. 2008) (internal citations omitted).
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 7 of 9

8
A court may impose such an injunction upon motion or sua sponte. 	Id. at
189. 	The Fifth Circuit, agreeing with the Second Circuit, provided the
following rationale for this conclusion:
Federal courts have both the inherent power and the constitutional
obligation to protect their jurisdiction from conduct which impairs
their ability to carry out Article III functions. 	If such power did not
exist, or it its exercise were somehow dependent upon the actions of
another branch of government or upon the entitlement of a private
party to injunctive relief, the independence and constitutional role of
Article III courts would be endangered.
Id. at 189. 	(quoting In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir.
1984)). 	To 	determine 	if 	the 	imposition 	of 	a 	pre-filing 	injunction 	is
appropriate, courts weigh all relevant circumstances, including the following
factors:
(1) the party’s history of litigation, in particular whether he has filed
vexatious, harassing, or duplicative lawsuits; (2) whether the party had
a good faith basis for pursuing the litigation, or simply intended to
harass; (3) the extent of the burden on the courts and other parties
resulting from the party’s filings; and (4) the adequacy of alternative
solutions.
Id. (quoting Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818 (4th Cir.
2004)).
The Court concludes that a pre-filing injunction may be appropriate.
Plaintiff has filed over a dozen motions requesting various relief in the years
since this Court dismissed his habeas petition. The volume and nature of the
motions display a history of harassing this Court and his continuous filings
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 8 of 9

9
do not appear to be motivated by good faith. 	This action has significantly
burdened the Court. 	Finally, imposing monetary sanctions on this pro se
litigant is unlikely to be adequate. However, before sua sponte imposing a
pre-filing injunction, a district court must provide notice and a hearing. Id.
at 189; see also Qureshi v. United States, 600 F.3d 523, 526 (5th Cir. 2010).
This order serves as notice. 	Should plaintiff continue to file frivolous
motions in this case, the Court will hold a hearing on the imposition and
scope of a pre-filing injunction.
III. 	CONCLUSION
For the foregoing reasons, the Court DISMISSES petitioner Lay’s
motions for lack of jurisdiction.
New Orleans, Louisiana, this _____ day of November, 2025.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
14th
Case 2:19-cv-09803-SSV-DPC Document 93 Filed 11/14/25 Page 9 of 9