LEWIS MASTER FILE v. All Defendants

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Allan Lewis
v. Civil No. 10-cv-231-PB
New Hampshire Judicial Branch
REPORT AND RECOMMENDATION
Before the Court is pro se plaintiff Allan Lewis‟s
complaint, construed to consist of his original complaint and
the amendments thereto (doc. nos. 1, 5, and 6). In claims
reminiscent of those asserted unsuccessfully in four cases filed
here by Lewis in the last four years, plaintiff has alleged that
defendant, the New Hampshire Judicial Branch, has violated his
federal constitutional rights by depriving him of a civil jury
trial in Strafford County Superior Court, in a 2004 action,
Lewis v. Harvey Indus., No. 04-C-143 (N.H. Super. Ct. Strafford
Cnty.) (“SCSC Case”). Because Lewis is proceeding pro se and in
forma pauperis in this Court, the matter is before me for
preliminary review to determine, among other things, whether or
not the complaint states any claim upon which relief might be
granted. See United States District Court District of New
Hampshire Local Rule (“LR”) 4.3(d)(1) (authorizing Magistrate
Judge to conduct preliminary review to determine whether action
may proceed); see also 28 U.S.C. § 1915(a)(1).
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Standard of Review
Under this Court‟s local rules, when a plaintiff commences
an action pro se and in forma pauperis, the Magistrate Judge
conducts a preliminary review. LR 4.3(d)(1). In conducting the
preliminary review, the Court construes all of the factual
assertions in the pro se pleadings liberally, however inartfully
pleaded. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976),
to construe pro se pleadings liberally in favor of the pro se
party). “The policy behind affording pro se plaintiffs liberal
interpretation is that if they present sufficient facts, the
court may intuit the correct cause of action, even if it was
imperfectly pled.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st
Cir. 1997); see also Castro v. United States, 540 U.S. 375, 381
(2003) (courts may construe pro se pleadings to avoid
inappropriately stringent rules and unnecessary dismissals).
This review ensures that pro se pleadings are given fair and
meaningful consideration.
To determine if a pro se complaint states any claim upon
which relief could be granted, the Court must consider whether
the complaint, construed liberally, Erickson, 551 U.S. at 94,
“contain[s] sufficient factual matter, accepted as true, to
„state a claim to relief that is plausible on its face.‟”
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Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949
(2009) (citation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Inferences reasonably drawn
from the plaintiff‟s factual allegations must be accepted as
true, but the Court is not bound to credit legal conclusions,
labels, or naked assertions, “devoid of „further factual
enhancement.‟” Id. (citation omitted). Determining if a
complaint sufficiently states such a claim for relief is a
“context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 1950
(citation omitted).
Background
On May 2, 2005, Strafford County Superior Court (“SCSC”)
Judge Bruce Mohl issued an order in the SCSC Case, setting July
18, 2005, as the date for a jury trial. On July 18, 2005, Lewis
appeared for trial. After defense counsel waived the right to a
jury trial, the court (Fauver, SCSC J.) held a bench trial and
ruled for defendants (“Harvey Industries”) on the merits.
Lewis filed a notice of appeal in the New Hampshire Supreme
Court (“NHSC”) thereafter, claiming, among other things, that he
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had been deprived of his right to a jury trial. Rejecting
Lewis‟ arguments, the NHSC affirmed. See Lewis v. Harvey
Indus., No. 2005-0733, slip op. at 1 (N.H. July 26, 2006).
Persistent in believing that he suffered legally cognizable
injury when the Superior Court held a bench trial, not a jury
trial, Lewis filed actions in this court and the state courts to
obtain a new trial by jury on his claims against Harvey
Industries. Lewis‟s state court litigation yielded no success,
and led to restrictions on his ability to file further actions
in state court. On January 8, 2010, the NHSC, citing Lewis‟s
repetitive filings, concluded that Lewis should be treated as a
restricted filer, subject to constraints on his ability to file
new cases relating to the SCSC Case. See In re Lewis, No. 2009-
0783 (N.H. Jan. 8, 2010), slip op. at 1 (“In light of the number
of cases the petitioner has filed regarding this matter, the
court concurs with the trial court that suitable restrictions
are warranted. Such restrictions may include requiring the
petitioner to obtain permission from the court before submitting
further pro se filings directly or indirectly related to his
2004 action against Harvey Industries. . . .”). Undeterred by
these rulings, Lewis made further efforts to assert claims in
state court, but to no avail. On September 2, 2010, Superior
Court Judge Kenneth Brown directed the court clerk to reject and
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return a complaint Lewis had attempted to file. On September
28, 2010, the NHSC declined to accept Lewis‟s petition asserting
similar claims. See Plf‟s Second Am. Compl. (doc. no. 6) at 19
and 21.
Lewis doggedly pursued similar claims in federal court
without success. He has filed a number of related federal cases
in this court, including four filed in the last four years
naming the New Hampshire Judicial Branch as a defendant. In the
first such action, Lewis v. N.H. Jud. Branch, No. 06-cv-395-PB
(“Lewis I”) (D.N.H. Dec. 20, 2006), aff‟d, No. 07-1397 (1st Cir.
Sept. 20, 2007), Lewis sued the NHSC Justices, the New Hampshire
Judicial Branch, and Judge Peter Fauver. This court granted the
defendants‟ motion to dismiss on the ground that such claims
were barred by the Rooker-Feldman doctrine. The First Circuit
affirmed the dismissal. Lewis‟s next three federal cases named
as defendants various combinations of the attorneys and judges
involved in his action against Harvey Industries, including
Judge Fauver, Attorney Ewing, his law firm (Desmarais, Ewing, &
Johnston, PLLC), Judge Brown, and the New Hampshire Judicial
Branch. Those cases were dismissed before service for reasons
including the statute of limitations, the defendants‟ immunity,
res judicata, and failure to state a federal claim against the
private attorneys. See, e.g., Lewis v. N.H. Jud. Branch, No.
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09-cv-002-JL (“Lewis II”) (D.N.H. Apr. 7, 2009) (dismissing
claims as time-barred), aff‟d, No. 09-1655 (1st Cir. Sept. 18,
2009); Lewis v. N.H. Jud. Branch, No. 09-cv-307-SM (“Lewis III”)
(D.N.H. Feb. 3, 2010) (dismissing case for reasons including
Eleventh Amendment immunity, res judicata, judicial immunity,
and failure to state a claim against private attorneys), aff‟d,
No. 10-1142 (1st Cir. July 19, 2010); Lewis v. N.H. Jud. Branch,
No. 09-cv-422-PB (“Lewis IV”) (D.N.H. Jan. 4, 2010) (same
reasons, same result), aff‟d, No. 10-1142 (1st Cir. July 19,
2010).
Just as Lewis was warned in the state court that his future
filings could be restricted, he has been notified of the risk of
such sanctions here. In recommending dismissal of Lewis IV for
the reasons cited in Lewis III, this Court (Muirhead, M.J.)
specifically cautioned plaintiff that vexatious litigation is
sanctionable, and that the Court would not await a flood of
frivolous actions before taking appropriate action. See Lewis
IV, Report and Recommendation (doc. no. 4), slip op. at 6
(D.N.H. Dec. 16, 2009); see also Lewis IV, Order (doc. no. 7)
(D.N.H. Jan. 4, 2010) (approving Report and Recommendation (doc.
no. 4)), aff‟d No. 10-1142 (1st Cir. July 19, 2010).
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In this, his fifth federal action against the same
defendant, Lewis‟s claims resound a familiar theme.1 Citing 42
U.S.C. § 1983, the Seventh Amendment, and the Fourteenth
Amendment Due Process Clause, Lewis has asserted that the New
Hampshire Judicial Branch violated his right to a jury trial and
engaged in fraud by holding a bench trial on his claims against
Harvey Industries, and by affirming and not vacating and
ordering a new trial on his claims against Harvey Industries.
Lewis seeks an order directing defendant to hold a jury trial on
his underlying claims, or to pay him $1.5 million.
Discussion
A. Dismissal of Claims
For reasons stated in opinions issued in Lewis‟s
fundamentally indistinguishable prior federal cases, Lewis‟s
claims in this case should be dismissed. See, e.g., Lewis I,
No. 07-1397 (1st Cir. Sept. 20, 2007) (“Essentially, the
appellant has attempted to obtain review of a state court
[judgment] in federal district court. Federal district courts
have no power to review state court judgments.” citing Rooker-
1The claims, as identified herein, will be considered to be
the claims raised in the complaint for all purposes. If Lewis
disagrees with the identification of the claims herein, he must
do so by properly objecting to this Report and Recommendation or
properly filing a motion to amend his complaint.
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Feldman doctrine); see also Lewis II, No. 09-1655 (1st Cir.
Sept. 18, 2009); Lewis III, No. 09-cv-307-SM (D.N.H. Feb. 3,
2010) (dismissing complaint for reasons including Eleventh
Amendment immunity, res judicata, and judicial immunity), aff‟d,
No. 10-1142 (1st Cir. July 19, 2010).
B. Future Claims Relating to SCSC Case
“Federal courts plainly possess discretionary powers to
regulate the conduct of abusive litigants.” Cok v. Fam. Ct.,
985 F.2d 32, 34 (1st Cir. 1993). This power encompasses the
ability to enjoin a pro se party from filing frivolous and
vexatious pleadings. See United States v. Gomez-Rosario, 418
F.3d 90, 101 (1st Cir. 2005). Where a litigant has demonstrated
a “propensity to file repeated suits . . . involving the same or
similar claims” of a “frivolous or vexatious nature,” a bar on
further filings is appropriate. Castro v. United States, 775
F.2d 399, 409 (1st Cir. 1985) (per curiam), abrogated on other
grounds by Stevens v. Dep‟t of Treasury, 500 U.S. 1 (1991). An
injunction on the ability to file lawsuits should be tailored to
the specific circumstances presented, particularly when issued
against a pro se plaintiff. Cok, 985 F.2d at 34-35. A filing
ban should occur only where clearly indicated by the record in a
particular case, including, for example, a history of repetitive
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frivolous filings, and only after the plaintiff has been warned
that filing restrictions are contemplated. Id. at 35.
This Court is mindful of the severity of broadly enjoining
a pro se plaintiff from filing future actions. See Castro, 775
F.2d at 410 (“[I]f an injunction against future litigation were
couched in overly broad terms, this could impermissibly infringe
upon a litigator‟s right of access to the courts”). However,
Lewis‟s filings relating to his action against Harvey Industries
have been repetitive, vexatious, and unduly burdensome to
federal judicial resources. This Court and the First Circuit
have issued multiple decisions plainly informing Lewis that his
claims against judges and private attorneys relating to the SCSC
Case are not cognizable in this court. Despite this court‟s
warning to Lewis of the risk of sanctions for filing frivolous
or vexatious litigation six months before, Lewis stayed the
course and filed the complaint in this action. Lewis‟s
repetitive and vexatious filings, in the face of decisive
rulings on the insufficiency of his claims and warnings
regarding the consequences of further vexatious filings,
demonstrate the likelihood that Lewis would continue to file
similar claims against one or more of the parties he has sued
previously, without the imposition of a filing restriction in
this court. Accordingly, this Court finds that it must
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specifically enjoin such filings, employing the identity of the
defendants and the general subject matter of the SCSC case and
related state court litigation, as a narrowly tailored,
functional screen against vexatious litigation. I recommend
that the following injunction issue against plaintiff, Allan
Lewis:
Allan Lewis is permanently enjoined and restrained
from commencing or litigating -- without prior leave
of the court -- any action against Attorney Scott A.
Ewing; the law firm of Desmarais, Ewing, & Johnston,
PLLC, or its agents; the New Hampshire Judicial
Branch; Judge Peter Fauver; Judge Kenneth Brown; or
any current or former judge, justice, or judicial
agency of the State of New Hampshire, involving
matters relating to Lewis v. Harvey Indus., No. 04-C-
143 (N.H. Super. Ct. Strafford Cnty.), including
supplemental litigation, appeals, or petitions filed
by Lewis which relate to that 2004 action.
Allan Lewis may seek leave of court to file a
complaint against such defendants, only by filing the
complaint, together with an affidavit certifying that
the claims are novel, have not previously been raised
before this Court, and do not relate to Lewis v.
Harvey Indus., No. 04-C-143 (N.H. Super. Ct. Strafford
Cnty.), or Lewis‟s supplemental state court
litigation, appeals, or petitions concerning that 2004
action.
Allan Lewis will be required to pay the filing fee or
file an in forma pauperis application at the time of
filing.
Any filing presented to the Clerk‟s Office by Allan
Lewis naming as a defendant Attorney Scott A. Ewing;
Desmarais, Ewing, & Johnston, PLLC, or its agents; the
New Hampshire Judicial Branch; Judge Peter Fauver;
Judge Kenneth Brown; or any other current or former
judge, justice, or judicial agency of the State of New
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Hampshire, shall be put into a master miscellaneous
file and presented to a magistrate judge or district
judge for review. The judge shall determine whether
the filing complies with the terms of the injunction,
and issue a report and recommendation or an order
accordingly. If the filing violates the injunction,
the court will reject the filing and return the filing
fee.
This injunction does not prevent Lewis from pursuing
any meritorious claims which have arisen or may arise
in the future, and that are appropriately brought in
this Court. Rather, it is intended to prevent Lewis
from instituting any further actions without first
satisfying a magistrate or district judge that his
complaint does not repeat claims related to or arising
out of Lewis v. Harvey Indus., No. 04-C-143 (N.H.
Super. Ct. Strafford Cnty.), or any supplemental state
court litigation, appeals, or petitions filed by Lewis
concerning that 2004 action.
Conclusion
For the reasons stated herein, I recommend that the
complaint (doc. nos. 1, 5, and 6) be dismissed. I further
recommend issuance of the injunction specified in this Report
and Recommendation, restricting Lewis‟s ability to file or
litigate certain claims in the future.
Any objections to this Report and Recommendation must be
filed within fourteen (14) days of receipt of this notice. See
Fed. R. Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court‟s
order. See Sch. Union No. 37 v. United Nat‟l Ins. Co., 617 F.3d
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554, 564 (1st Cir. 2010); United States v. Lugo Guerrero, 524
F.3d 5, 14 (1st Cir. 2008).
_________________________________
Landya B. McCafferty
United States Magistrate Judge
Date: November 23, 2010
cc: Allan Lewis, pro se
LBM:nmd
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