Caldwell v. Obama , 6 F. Supp. 3d 31 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEITH R. CALDWELL, SR.
Plaintiff,
Civil Action No. 13-1438 (BAH)
v.
Judge Beryl A. Howell
BARACK HUSSEIN OBAMA II,
President of the United States, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiff Keith Caldwell filed this pro se complaint against twenty-three defendants,
including federal officials, federal judges, Argosy University, and the university’s president,
seeking a judgment that they violated his right to due process, their oaths of office, and abused
their authority, due to their official actions in connection with previous cases before Judges of
this District, this Circuit, the United States Tax Court, and Justices of the United States Supreme
Court. For the reasons explained below, the Court dismisses this action sua sponte under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim and under the doctrine of claim
preclusion. Furthermore, in light of the plaintiff’s repeated filing in this Court of similar suits
stemming from the same facts at issue in the instant case, he is enjoined from filing any
additional complaints in this Court without obtaining pre-filing leave to do so.
I. BACKGROUND
A. Prior Lawsuits Against Various Governmental Officials and Private Parties
The plaintiff brings this lawsuit against President Obama, the Attorney General Eric
Holder and the Executive Office for U.S. Attorneys, the Secretary of Education Arne Duncan,
three officials with the Internal Revenue Service, twelve Federal and two Tax Court judges, and
1
a private university and the university president arising from actions these individuals have taken
in their official capacities regarding claims asserted by the plaintiff for the first time over five
years ago. A brief background of the plaintiff’s prior lawsuits shows how the claims raised
against each defendant have accumulated over the past eight years, as the plaintiff has filed
repeated lawsuits stemming from a dispute over his personal tax liability for his tax return filed
in 2004, and the plaintiff’s disagreement with his former employer.
1. Plaintiff’s 2008-2010 Lawsuits in the U.S . Tax Court, District of
Columbia Federal Courts and the Supreme Court
Beginning in 2004, the Internal Revenue Service (“IRS”) issued two separate deficiency
notices to the plaintiff that the amount of taxes paid, as shown on the plaintiff’s return, was less
than the actual amount owed. See Caldwell v. Comm’r, No. 2008-77, 2008 WL 2595916, at *1
(T.C. July 1, 2008). The first notice, dated May 9, 2006, reflected a deficiency of $2,296, and
the second notice, dated September 20, 2006, showed a deficiency determination of $7,206
related to unreported income, and $1,441 penalty. Id. The plaintiff challenged the IRS’
deficiency determination by filing suit in the United States Tax Court. Id. During this
proceeding, the plaintiff provided the required documentary evidence to establish his proper
calculation of tax liability, and the IRS conceded that the plaintiff properly reported his income
for 2004 – albeit on the wrong line. Id. at *2. According to the Tax Court, the IRS “prematurely
assessed the deficiency and penalty” even when the plaintiff filed an appropriate petition
challenging the assessment, and “issued collection notices, including levy notices, to petitioner
between November 2006 and June 2007.” Id.
Following a trial, the Tax Court “held the record open” to give the parties additional time
to clarify the record. Id. During this post-trial period, the IRS informed the Tax Court, in a
status report, that it had sent the plaintiff a “proposed stipulation decision document [] reflecting
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[the IRS’] full concession.” Id. at *2. The Tax Court closed the record and ordered the parties
to submit settlement documents, and if they were unable to reach a settlement, the “Court would
be inclined to enter a decision of no deficiency and no penalty . . . for taxable year 2004.” Id.
The plaintiff responded, in his own status report, that he would not agree to the stipulation, but
“might seek administrative and litigation costs.” Id.
In view of the parties’ failure to reach a settlement, the Tax Court provided the plaintiff
an opportunity to file a motion for administrative and litigation costs, while cautioning the
plaintiff that “only substantiated, out-of-pocket costs could be awarded and instructed him to
review” various rules regulating the filing of such a motion. Id. The plaintiff subsequently filed
a one-page motion seeking the round-number of $100,000 in administrative and litigation costs.
Id. at *3. The Tax Court sustained the IRS’ objection to the plaintiff’s motion, noting that
although the plaintiff had succeeded on the merits of his claim regarding his tax liability, he had
failed to “provide an itemized statement of costs, fees, and other expenses claimed,” as required
by the applicable rules, and had failed to address other statutory requirements necessary to be
deemed a “prevailing party,” under 26 U.S.C. § 7430(c)(4). Id. at *4 n. 10.
In addition to seeking administrative and litigation costs associated with the Tax Court
proceeding, the plaintiff requested that the Tax Court order the IRS to return his 2005 income tax
refund, which the plaintiff claimed had been seized following receipt of the two notices of
deficiency and applied to his income tax liability for tax years 2003 and 2004. Id. at *3. In
denying this request, the court noted that its “jurisdiction is limited to redetermining [the
plaintiff’s] tax liability for 2004,” which was the tax year in dispute in that litigation, and that the
court lacked the “authority to order a refund for 2005.” Id. (citing Naftel v. Commissioner, 85
T.C. 527, 533 (1985)).
3
The plaintiff challenged the Tax Court’s denial of his request for return of his 2005 tax
refund in this Court by filing suit against the Tax Court and its presiding Judge (Caldwell I Tax
Court & Judge) as well as an IRS Commissioner and two IRS employees (“Caldwell I
Officials”). See Compl. (“Caldwell I Compl.”) at 1, Caldwell v. U.S. Tax Court, No. 08-1427
(D.D.C. Aug. 14, 2008). This complaint alleged a myriad of wrongs, including that the
plaintiff’s Fifth Amendment rights were violated, id. at 2; the IRS committed larceny of personal
property by not returning his 2005 income tax refund, id. at 2, 5; the Tax Court opinion was
unsupported by the facts, id. at 3; the Tax Court failed to require the IRS to provide proof that
“the 2005 tax refund was not material to the . . . matter,” id. at 5; the IRS entered false statements
during the trial, id. at 2; and the Tax Court failed to remove the presiding judge, id. The lawsuit
was dismissed against the Caldwell I Tax Court & Judge based on the absolute immunity
afforded to official judicial acts, and against the Caldwell I Officials because the plaintiff failed
to state a claim upon which relief could be granted. See Order at 1, Caldwell v. U.S. Tax Court,
No. 08-1427 (D.D.C. Apr. 16, 2009), ECF No. 15 (“Caldwell I”). This decision was affirmed by
a panel of the D.C. Circuit. Caldwell v. U.S. Tax Court, 360 Fed. Appx. 161, 162 (D.C. Cir.
2010) (collectively, the district court and circuit panel judges involved in this case are referred to
as the “Caldwell I Judges”). 1
The plaintiff petitioned for a writ of certiorari to the United States Supreme Court to
challenge the dismissal of his suit. See Pet. for Cert., Caldwell v. U.S. Tax Court, No. 09-9137
(U.S. Jan. 25, 2010). Then-Solicitor General Elena Kagan elected not to respond to the petition.
According to the plaintiff in his instant complaint, the decision not to respond to the petition was
1
The order provides, without further detail, that the defendants’ motion to dismiss was “granted essentially for the
reasons stated by defendants in their motion.” Caldwell I at 1. In the motion to dismiss, the defendants asserted
defenses of absolute immunity, failure to state a claim, and lack of personal jurisdiction in support of dismissal. See
Defs.’ Mem. Supp. Mot. Dismiss at 2‒9, Caldwell v. U.S. Tax Court, No. 08-1427, ECF No. 10.
4
an act of corruption, and led the Supreme Court to deny his petition. See Compl. at 5, ECF No.
1. In the plaintiff’s view, by denying the writ, the Supreme Court “decided to deceive, obstruct
justice, and . . . hope that the case facts would simply vanish into thin air on Interstate 95.” Id. at
5‒6.
2. Plaintiff’s 2011 Lawsuits in the District of Columbia
Subsequently, in 2011, the plaintiff filed suit against then-Solicitor General Kagan,
Attorney General Holder, and the Caldwell I Judges, asserting that they each improperly handled
his federal suit against the U.S. Tax Court. See Caldwell v. Kagan, 777 F. Supp. 2d 177, 179
(D.D.C. 2011)) (“Caldwell II”), aff’d, 455 Fed. App’x 1 (D.C. Cir. 2011). The plaintiff alleged
that by failing to respond to his petition for certiorari, then-Solicitor General Kagan and Attorney
General Holder “‘facilitated the Supreme Court’s decision to deny my petition for a Writ of
Certiorari,’ and that the denial of the petition ‘denied my constitutional right to due process in
that case.’” Id. at 180. The district court reviewing the Caldwell II claims found that the
plaintiff lacked standing to bring suit against the executive branch officials and that the federal
judges were immune from suit by acting in their judicial capacity. Id. at 179‒80. Therefore, the
court dismissed the Caldwell II complaint. Id. at 179 (“[P]laintiff’s complaint will be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(3) for lack of subject matter jurisdiction.”).
This decision was affirmed by a second panel of the D.C. Circuit. Caldwell v. Kagan, 455 Fed.
App’x 1 (D.C. Cir. 2011) (collectively, the district court judge and the circuit panel involved in
this case are referred to as the “Caldwell II Judges”). Subsequently, the plaintiff filed a second
petition for writ of certiorari to the United States Supreme Court alleging that the Caldwell I and
Caldwell II Judges rendered “unsupported and unsubstantiated” decisions. See Pet. for Cert. at
10–14, Caldwell v. Kagan, No. 12-38 (U.S. July 15, 2012). The petition was denied.
5
In 2011, the plaintiff brought a third suit in this Court but this time against his former
employer Argosy University and its president, alleging that they “failed to properly act when he
alleged that a student had submitted a fraudulent dissertation, and removed him from the
student’s dissertation committee,” and against the Department of Education for failing to
“‘evaluate’ Argosy for compliance with regulatory and institutional guidelines.’” Caldwell v.
Argosy Univ., 797 F. Supp. 2d 25, 27 (D.D.C. 2011) (“Caldwell III”). The plaintiff alleged that
filing the lawsuit against his former employer “‘compelled’” him to “‘sever’” his affiliation with
the university. Id. (internal citations omitted). The district court reviewing the Caldwell III
complaint determined that it failed to comply with Federal Rule of Civil Procedure 8(a), since
the complaint was “unclear or . . . fail[ed] to give the defendants fair notice of the claims against
them.” Id. at 28. Specifically, the court noted that the claims against the government agency
alleged no harm resulting from government action, and that there was no connection between the
cause of action alleged and the facts alleged. 2 Id. at 28. While the defendants requested that the
complaint be dismissed with prejudice, “‘because the [plaintiff] is no stranger to litigation,’” the
Court dismissed the complaint without prejudice, but cautioned the plaintiff that, if he “file[d] an
amended complaint that merely ‘recycles’ the complaint currently before the Court, it may be
dismissed with prejudice.” Id. at 28–29 (citing Hamrick v. United States, No. 10–857, 2010 WL
3324721, at *1 (D.D.C. Aug. 24, 2010)).
Following dismissal, the plaintiff did not file an amended complaint, but instead filed a
complaint against the district court judge (“Caldwell III District Court Judge”) with the
Department of Justice’s Office of Inspector General (“DOJ OIG”), the Federal Bureau of
2
The court noted that, while not alleged in the complaint, the plaintiff asserted in his Civil Docket Sheet that this
action was brought under the False Claims Act, specifically, 31 U.S.C. §§ 3729, 3733. In dismissing this claim, the
court noted that the plaintiff “refers to no false claims for payments in the complaint. Nor does he refer to any other
potential sources of liability” for Argosy University and its president. Caldwell III, 797 F. Supp. 2d at 28.
6
Investigation’s (“FBI”) Washington Field Office, and the United States Attorney’s Office. See
Caldwell v. Kagan (“Caldwell IV”), 865 F. Supp. 2d 35, 40 (D.D.C. 2012). The plaintiff also
filed a judicial misconduct complaint against the Caldwell III District Court Judge with the
Judicial Council of the District of Columbia Circuit. 3 Id. The Chief Judge of the D.C. Circuit
“dismissed the complaint before the Judicial Council, and no agency has acted on any of
Caldwell’s other complaints.” Id. (internal citations omitted) (collectively, the district court
judge and the Chief Judge are referred to as the “Caldwell III Judges”).
3. Plaintiff’s 2012 Suit in the District of Columbia
In 2012, the plaintiff filed a fourth suit against then-Solicitor General Kagan, Attorney
General Holder, Argosy University, its president, Secretary of Education Arne Duncan, various
Caldwell I, II and III Judges, the Caldwell I Officials, an FBI agent, an employee of the
Department of Justice’s Office of Inspector General (“DOJ OIG”), and the United States
Attorney’s Office in the District of Columbia (“DC USAO”). 4 See Caldwell IV, 865 F. Supp. 2d
at 39, aff’d, No. 12-5298, 2013 WL 1733710, at *1 (D.C. Cir. Mar. 22, 2013) (per curiam). This
complaint alleged that the plaintiff was denied due process of law when then-Solicitor General
Kagan failed to respond to his petition, id. at 40–41, when Attorney General Holder failed to
oversee the Solicitor General’s decision making, id., when Secretary Duncan authored a motion
to dismiss that led to a dismissal in Caldwell III, id., and when the FBI, DOJ OIG, and DC
USAO failed to respond to his complaints of criminal judicial-misconduct against the Caldwell II
District Court Judge, id. at 44. Additionally, the plaintiff alleged that that the variously named
Caldwell I, II, and III judges rendered improper decisions in his cases. Id. at 42. The plaintiff
3
While proceedings related to judicial misconduct complaints made to the Judicial Council of the District of
Columbia Circuit are confidential, see 28 U.S.C. § 360(a), this complaint to the Judicial Council formed the basis of
the plaintiff’s cause of action in Caldwell IV and was thereby disclosed by him. Caldwell IV, 865 F. Supp. 2d at 40.
4
The plaintiff chose not to name as a defendant one of the two IRS employees previously named in Caldwell I, and
did not include the Court of Appeals panel from Caldwell II, but did name as defendants the Caldwell II district
court judge and the Circuit’s Chief Judge, who reviewed his judicial-misconduct complaint.
7
raised the same allegations against Argosy University and its president as in Caldwell III:
namely, that they failed to act on allegations that a student submitted a fraudulent dissertation
and instead punished the plaintiff for raising the issue. Id. at 44. Finally, the plaintiff alleged
that the Caldwell I Officials failed to supervise the IRS Office of General Counsel. Id. at 43.
The district court reviewing the Caldwell IV complaint determined that the “plaintiff
lacks standing against some defendants, some enjoy immunity against plaintiff's claims, several
of plaintiff’s claims are barred by res judicata, and some claims fail to state a claim upon which
relief may be granted.” Id. at 40. For the various alleged due process violations, the court found
that the plaintiff lacked standing to challenge the actions of then-Solicitor General Kagan,
Attorney General Holder, and Secretary Duncan, and alternatively that the “claims against all
three of these defendants must be dismissed under Rule 12(b)(6) for failure to state a claim upon
which relief may be granted.” Id. at 42 (emphasis added). The alleged due process violations
against the FBI agent, DOJ OIG employee, and the DC USAO were dismissed because decisions
not to prosecute are unreviewable. Id. at 44. The claims against all of the judicial officials were
dismissed under Rule 12(b)(6) because “absolute immunity protects each of the judges from
liability.” Id. at 43. The claims against the Caldwell I Officials were dismissed as precluded
because they were the same previously dismissed claims brought against these same defendants.
Id. at 43. Finally, the claims against Argosy University and its president were dismissed since
they merely repeated the same claims previously asserted in Caldwell III, which claims had been
dismissed, with prejudice, for failing to comport with Rule 8(a) after being cautioned by the
Caldwell III district court that merely recycling his complaint would be insufficient, and also
under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Id. at 44‒45.
8
The decision was subsequently affirmed by the D.C. Circuit. Caldwell v. Kagan, No. 12-
5298, 2013 WL 1733710, at *1 (D.C. Cir. Mar. 22, 2013) (collectively, the district court judge
and circuit panel are referred to as the “Caldwell IV Judges”). The plaintiff has indicated his
intention to file another petition for writ of certiorari to the United States Supreme Court arising
from this dismissal of this fourth federal complaint. See Compl. at 28.
B. Plaintiff’s Instant Complaint
The plaintiff has now filed his fifth complaint in this Court. This complaint raises the
same allegations against the same parties in Caldwell I, II, III, and IV, and adds as new
defendants the Caldwell IV Judges, President Obama, Chief Justice Roberts, and the Executive
Office of United States Attorneys (“EOUSA”). 5 Compl. at 1‒3. 6 The plaintiff’s complaint
asserts seven causes of action (“COA”): (1) “[v]iolations of the plaintiff’s Fifth and Fourteenth
Amendment Due Process Rights (“First COA”), id. at 4‒9; (2) “[v]iolation[s] of the code of
conduct, the oath of office, and the federal court’s [sic] published doctrine in regards to the ethics
and integrity of the judicial process and procedures” (“Second COA”), id. at 9‒15; (3)
“[v]iolation of the plaintiff’s right to trial by jury” (“Third COA”), id. at 15; (4) “[v]iolation of
the plaintiff’s constitutional rights relevant to 42 U.S.C § 1983” (“Fourth COA”), id. at 16‒18;
(5) [v]iolations of judicial codes of conduct (“Fifth COA”), id. at 18‒19; (6) [o]bstruction of
Justice (“Sixth COA”), id. at 19‒23; and (7) “[f]ailure to manage and safeguard public tax
dollars on the Part of the U.S. Department of Education,” (“Seventh COA”), id. at 23. While not
detailed in the complaint, the plaintiff’s Civil Docket Sheet indicates a demand of $50,000,000
5
In the instant case, the plaintiff continues to name as a defendant William Gregg, who was also among the
Caldwell I Officials, and the plaintiff has added as defendants another IRS Commissioner and official not named in
his prior lawsuits. Compl. at 3.
6
The plaintiff has not organized his complaint in numbered paragraphs and therefore citations to the complaint refer
to page numbers.
9
associated with the alleged violations mentioned in his seven causes of action. See Civil Docket
Sheet at 2, ECF No. 1-1.
Along with the complaint, the plaintiff moved to use a P.O. Box as his contact address in
this matter. See Motion to Request Use of Post Office Box (“Mot. Request Use P.O. Box”) at 1,
ECF No. 3. The Court denied this request under Local Civil Rule 5.1(e)(1), which requires that
the “first filing by or on behalf of a party shall have in the caption the name and full residence
address of the party.” Order to Show Cause at 1, ECF No. 4. In addition, since the instant
complaint constitutes the fifth complaint in this Court, against virtually the same defendants and
premised on the same set of facts previously considered and dismissed, the Court ordered the
plaintiff to show cause why the Court should not issue an injunction barring the plaintiff from
filing new complaints in this Court and explaining why his instant complaint is not frivolous,
harassing, or duplicative. 7 See Order to Show Cause at 2.
The plaintiff subsequently filed two motions. The first motion is titled a “Motion is[sic]
Response to the Order to Show Cause,” (“Mot. Response Order to Show Cause”) at 1, ECF No.
5, but contains no substantive discussion of why the instant complaint is not frivolous, harassing,
or duplicative. Rather, in this motion the plaintiff “strongly request[s] that the trial judge
reconsider the court’s denial of the use of the plaintiff’s post office box as his official mailbox.”
Mot. Response Order to Show Cause at 5. Consequently, the Court construes this motion as
seeking reconsideration of the denial of the plaintiff’s Motion to Request Use of Post Office Box
("Mot. Request Use P.O. Box") at 1, ECF No. 3; Order to Show Cause at 2, ECF No. 4
(“ORDERED that the plaintiffs Motion to Request Use of Post Office Box, ECF No. 3, is
DENIED” and directing the plaintiff to file his current residence address).
7
Even though the Court denied the plaintiff’s request to use a P.O. Box as violative of the Court’s local rules, the
Order to Show Cause was mailed by the Clerk’s office to both the plaintiff’s old address and the P.O. Box address
maintained by plaintiff. Order to Show Cause at 2.
10
The plaintiff’s second motion is titled “Motion to Order the District Court to Remove
Beryl A. Howell From Presiding Over the Above-Titled Case,” (“Mot. Recuse”), ECF No. 6. In
this motion, the plaintiff states his conclusion that “the order [to show cause] represents the
ravings of a lunatic” and demands the presiding judge “be immediately be removed from the
above-titled case and replaced by a member of the district court Bar who meets the criteria set
forth in the complaint that the district court has docketed.” Id. at 1, 7. Both of the plaintiff’s
pending motions will be discussed below.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
FED. R. CIV. P. 8(a). Federal Rule of Civil Procedure Rule 12(b)(6) tests whether a plaintiff
properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although
“detailed factual allegations” are not required, a complaint must offer “more than labels and
conclusions” to provide “grounds” of “entitle[ment] to relief.” Twombly, 550 U.S. at 555(alteration in original). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 557) (alteration in original). The Supreme Court has stated, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “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. (quoting Twombly, 550 U.S. at 556).
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Pro se plaintiffs are “’held to less stringent standards than formal pleadings drafted by
lawyers.’” Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (quoting Erickson v. Pardus, 551
U.S. 89, 94 (2007). Nevertheless, even a pro se complainant “must plead ‘factual matter’ that
permits the court to infer ‘more than the mere possibility of misconduct.’” Id. (quoting Atherton
v. District of Columbia Office of Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009)).
III. DISCUSSION
At the outset, the Court will address the two pending motions that were filed in response
to the Order to Show Cause on why a pre-filing injunction would be inappropriate. Next, the
Court will evaluate the allegations raised in the complaint under Federal Rule of Civil Procedure
12(b)(6). In this Circuit, “[t]he district court may sua sponte dismiss a claim pursuant to Rule
12(b)(6) without notice where it is ‘patently obvious’ that the plaintiff cannot possibly prevail
based on the facts alleged in the complaint.” Rollins v. Wackenhut Servs., Inc., 703 F.3d 122,
127 (D.C. Cir. 2012) (citing Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir.
1990)); see also Best v. Kelly, 39 F.3d 328, 331 (D.C. Cir. 1994) (“Complaints may . . . be
dismissed . . . sua sponte . . . under Rule 12(b)(6) whenever the plaintiff cannot possibly win
relief.”) (internal quotation marks omitted). As the plaintiff has failed to plead sufficient facts to
allege even a possibility of relief on any of his seven causes of action, the Court dismisses the
complaint in its entirety.
A. The Plaintiff’s Motions for Reconsideration and Recusal are Denied
1. Motion for Reconsideration
The plaintiff’s first motion requests that this Court reconsider the Order denying use of a
P.O. Box as a primary address. As noted, the Court has construed this motion as seeking
reconsideration under Federal Rule of Civil Procedure 60(b). In denying the original motion, the
Court noted that “while the plaintiff strongly believes it is in the best interest of his safety to omit
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his physical address from the proceeding, he fails to allege any specific source of
endangerment.” Order to Show Cause at 2 (internal citations and quotation marks omitted). In
his motion for reconsideration, the plaintiff asserts “[t]he fact that the plaintiff has sued senior
officials of the United States government places his life in danger. The danger is very real and
obvious even though [the district court] seems out of touch with this reality.” Mot. Response
Order to Show Cause at 3.
Since the Court’s denial of the plaintiff’s motion to use a P.O Box was in strict
compliance with the Local Rules of this Court, none of the enumerated avenues of relief from an
order under Rule 60(b) applies. As the Court has made clear, while the plaintiff may feel real
concern for his safety, he has presented no factual allegation to warrant the Court’s granting an
exception to the Local Civil Rules. Merely indicating that he sued several officials of the United
States government in their official capacity, as he has done in several previous lawsuits without
any alleged adverse effect, does not suffice to show any risk of danger to the plaintiff’s life as he
appears to believe. Accordingly, because the plaintiff has failed to articulate sufficient reason
necessitating the use of a P.O. Box, the Court denies the plaintiff’s motion for reconsideration.
2. Motion for Recusal
Second, the plaintiff seeks an order from the district court removing the presiding judge
in this matter. The Court construes this motion as a motion to recuse the district court judge
under 28 U.S.C. § 455, “which provides that a judge ‘shall disqualify himself’ when ‘his
impartiality might reasonably be questioned.’” S.E.C. v. Loving Spirit Found. Inc., 392 F.3d
486, 489 (D.C. Cir. 2004).
The plaintiff has provided no reasonable basis for questioning the impartiality of this
Judge to meet the requirement for recusal under the general provision of section 455(a), nor
satisfied any of the other specific provisions of section 455(b) to warrant recusal. To the extent
13
that the plaintiff disagrees with the Court’s orders issued to date in this case, such judicial actions
alone almost never establish a valid basis for a bias or partiality motion. See Liteky v. United
States, 510 U.S. 540, 555 (1994); Loving Spirit Found, Inc., 392 F.3d at 494 (observing that
adverse judicial decisions “virtually never provide a basis for recusal”). This motion for recusal
is denied. See In re Kaminski, 960 F.2d 1062, 1065 n.3, (D.C. Cir. 1992) (per curiam) (“A judge
should not recuse himself based upon conclusory, unsupported or tenuous allegations.”).
B. Federal Judges are Absolutely Immune from Suit for Performing of Their
Official Acts
The plaintiff asserts six of his seven COAs against the federal judicial defendants and one
COA against the Tax Court and Tax Court Judge. These claims run the gamut, including due
process violations (First COA); violations of the judicial codes of conduct and oaths of office
(Second and Fifth COAs); denial of the plaintiff’s right to a jury trial (Third COA);
constitutional violations under Bivens (Fourth COA); and obstruction of justice (Sixth COA).
These COAs fail to state a claim upon which relief can be granted because federal district court,
appellate and Tax Court judges are absolutely immune from lawsuits predicated, as here, on their
official acts.
As the Supreme Court has made clear, federal judges are absolutely immune from
lawsuits grounded in the performance of official acts. See Forrester v. White, 484 U.S. 219, 225
(1988); Stump v. Sparkman, 435 U.S. 349, 355–57 (1978); see also Sindram v. Suda, 986 F.2d
1459, 1460 (D.C. Cir. 1993). This is because “judges must act upon [their] convictions, without
apprehension of personal consequences to themselves.” Mikkilineni v. PA., No. 02-1205, 2003
U.S. Dist. LEXIS 13669, at *16 (D.D.C. Aug. 5, 2003) (internal citations omitted). Seeking
relief through an appeal to an appellate court is the sole remedy available to a litigant who “seeks
to challenge the legality of decisions made by a judge in her judicial capacity. Id. (internal
14
citations omitted). “The acts of assigning a case, ruling on pretrial matters, and rendering a
decision all fall within a judge's judicial capacity.” Id. (internal citations omitted).
In the instant action, the acts challenged by the plaintiff apparently include reviewing
pending motions to dismiss, the viability of plaintiff’s claims under Rule 12(b)(6) and petitions
for certiorari and the issuing of decisions reflecting the outcome of such review. These are
quintessential official judicial acts. As absolute immunity protects the district, circuit, and tax
court judges in Caldwell I, II, III, and IV, as well as the Chief Justice, in the performance of their
official acts, the plaintiff’s causes of action against all judicial defendants are dismissed. 8 Since
the Third, Fifth and Sixth COAs appear to be asserted solely against judicial defendants, those
three claims are dismissed in their entirety.
C. First COA: The Plaintiff has Failed to Plead Sufficient Facts to Allege a Due
Process Violation
The plaintiff’s First COA alleges a violation of his due process rights against various
Executive Branch officials, including President Obama, then-Solicitor General Kagan, Secretary
Duncan and Attorney General Holder (as well as the judicial defendants), stating that because of
their “earth shattering” “incompetence and [] corruption,” the “2005 tax refund check remains an
8
The plaintiff’s claims against the judges would also fail for additional reasons that do not necessitate full
discussion. For example, the plaintiff’s Third COA alleges violations of the plaintiff’s right to a jury trial. The
Seventh Amendment right to a trial by jury extends only to issues “triable by right of a jury,” Fed. R. Civ. P. 38(b),
which necessarily requires a predicate legally viable claim, which is wholly missing in the instant complaint. See
Blackmon v. Am. Home Prods. Corp., 328 F. Supp. 2d 647, 657 (S.D. Tex. 2004) (“The Seventh Amendment
entitles litigants to a jury trial on claims within its ambit only to the extent that those claims are viable.”). Similarly,
the Fifth COA, claiming violations of judicial “code of conduct directives that are published on the websites” of the
federal and Tax courts, Compl. at 18, does not allege any specific conduct violative of such codes -- other than
judicial rulings contrary to the plaintiff’s desired outcome -- and, in any event, such codes of conduct provide no
private right of action. See Church of Scientology Int'l v. Kolts, 846 F. Supp. 873, 882 (C.D. Cal. 1994) (“Given that
no private right of action exists for violations of the Judicial Code, Plaintiff can state no facts which would create a
cause of action.”); Weston v. Schluler, 2004 U.S. Dist. LEXIS 30129 at * 5 (N.D. Okla. Mar. 4, 2004) (finding that
the Judicial Code provides no private right of action). Likewise, the plaintiff’s Sixth COA, asserting that the federal
judges obstructed justice by dismissing his previous lawsuits, see Compl. at 21, also fails because the plaintiff does
not have a private right of action to enforce this criminal statute. See Central Bank of Denver v. First Interstate
Bank of Denver, 511 U.S. 164, 190 (1994) (finding no private right of action from a “bare criminal statute”);
McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162, 1164 (D.C. Cir. 1995).
15
open issue . . .” Compl., at 8 (emphasis in original). The Due Process Clause of the Fifth
Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without
due process of law.” U.S. Const. amend. V. 9 The Due Process Clause includes a “substantive
component, which forbids the government to infringe certain ‘fundamental’ liberty interests at
all, no matter what process is provided, unless the infringement is narrowly tailored to serve a
compelling state interest.” Reno v. Flores, 507 U.S. 292, 301–302 (1993) (emphasis in original).
It also includes a procedural component, which protects the opportunity to be heard “‘at a
meaningful time and in a meaningful manner,’” what the Supreme Court has characterized as
“the fundamental requirement of due process.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
While the complaint does not indicate whether the plaintiff is pleading a violation of
substantive or procedural due process, the allegations appear to assert a violation of procedural
due process and the Court will construe these allegations as such. See Compl. at 7 (“Amendment
14, § 1 dealing with due process . . . specifies that deprivation of property without due process of
law constitutes a constitutional violation); id. at 8 (“[O]ur right to protection under the
9
The plaintiff invokes the Fourteenth Amendment’s due process protections. See e.g., Compl. at 7. To the extent
that the complaint names federal actors as defendants, there is no “state action,” which is required to invoke the
Fourteenth Amendment. See United States v. Morrison, 529 U.S. 598, 621 (2000) (“Foremost among these
limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state
action . . . the principle has become firmly embedded in our constitutional law that the action inhibited by the first
section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States.”). Moreover,
the plaintiff has alleged violations under 42 U.S.C. § 1983. Compl. at 16‒17. Just as the Fourteenth Amendment
requires state action, § 1983 requires that officials act “under color of state law.” See Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49‒50 (1999) (“To state a claim for relief in an action brought under § 1983, respondents
must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that
the alleged deprivation was committed under color of state law.”); Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir.
1991)(“[t]o state a claim under [S]ection 1983, a plaintiff must allege both (1) that he was deprived of a right
secured by the Constitution or laws of the United States, and (2) that the defendant acted 'under color of' the law of a
state, territory or the District of Columbia.”). Mindful that documents filed by pro se litigants are held to less
stringent standards, the Court construes the allegations under § 1983 as purported violations of constitutional rights
under the federal analog Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
See also Marshall v. Fed. Bureau of Prisons, 518 F. Supp. 2d 190, 193 (D.D.C. 2007) (considering claim against
individual defendants under Bivens rather than § 1983 as plead) (citing Hartman v. Moore, 547 U.S. 250, 254 n. 2
(2006)).
16
procedural provision of due process cannot be violated.”). In fact, the complaint alleges that this
suit is a continuation of the plaintiff’s on-going attempt to recover an outstanding tax refund, a
clam originally raised by the plaintiff in 2008, before the United States Tax Court. Id. (“The
United States government, specifically the IRS, has left unsettled the matter concerning the
plaintiff’s . . . tax refund; a grand total of eight-years and counting.”).
To maintain a procedural due process claim, a plaintiff must establish that the
government has deprived him of a protected interest without due process. Gen. Elec. Co. v.
Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (“Only after finding the deprivation of a protected
interest do[es] [the Court] look to see if the government’s procedures comport with due
process.”) (quoting Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 59 (1999)). To establish a
protected liberty or property interest, the plaintiff must demonstrate that the Constitution or a
federal or state statute grants him a protected right. Doe v. U.S. Dep’t of Justice, 753 F.2d 1092,
1124 (D.C. Cir. 1985) (“[T]he interests that are comprehended within the meaning of either
liberty or property, as covered by the due process clause of the Constitution, are those interests
which have ‘attain[ed] constitutional status by virtue of the fact that they have been initially
recognized or protected by state law’ or federal law.”) (quoting Paul v. Davis, 424 U.S. 693, 711
(1976)). Here, the plaintiff apparently alleges that the property interest for which he was
deprived is the “2005 tax refund check,” Compl. at 8, which the Tax Court concluded it lacked
the authority to compel the IRS to return. Comm’r, 2008 WL 2595916 at * 3 n.10; see also
Naftel v. C.I.R., 85 T.C. 527, 533 (1985) (“While the Court has jurisdiction to determine an
overpayment, it has no authority to order or deny a refund.”).
Assuming, arguendo, that the plaintiff has a legitimate claim of entitlement to and
protected property interest in the 2005 tax refund, he has received sufficient process. The
17
Supreme Court has made clear that “[o]nce it is determined that due process applies, the question
remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). “The
fundamental requirement of due process is the opportunity to be heard at a meaningful time and
in a meaningful manner.” Mathews, 424 U.S. at 333 (internal quotations and citation omitted).
As the plaintiff notes in his complaint, “[t]his matter was presented to the U.S Court of Appeals
(3 times) and the [Supreme Court] (2 times),” and includes “more than 100 court filings.”
Compl. at 7‒8. Thus, the plaintiff has had ample opportunity to be heard, including petitioning
to the highest court in the land.
Additionally, all the government officials named as defendants, by virtue of acting in an
official capacity, enjoy qualified immunity against “liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“Qualified immunity is a defense that shields officials from suit if their conduct did not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011) (internal quotation marks,
brackets, and citations omitted). To determine whether the defendant is entitled to qualified
immunity, the court assesses whether: (1) the facts alleged by a plaintiff make out a violation of a
constitutional right; and (2) the right at issue was ‘clearly established’ at the time of the
defendant's alleged misconduct. Jones v. Horne, 634 F.3d 588, 597 (D.C. Cir. 2011) (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001) and Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
Here, the plaintiff fails to plead a constitutional violation stemming from the defendants’ conduct
and , thus, their actions are protected by qualified immunity. See also Caldwell IV, 865 F. Supp.
2d at 42. Accordingly, the plaintiff cannot possibly win relief on his due process claims. The
18
plaintiff’s first COA is therefore dismissed for failure to state a claim upon which relief can be
granted. 10
C. Second COA: The Plaintiff’s Claims Against President Obama and Other
Government Officials for Violation of their Oaths of Office Fail to State a
Claim
The plaintiff’s Second COA is barely intelligible but appears to assert that the President
of the United States violated his oath of office in some way by nominating Justice Elena Kagan
to the U.S. Supreme Court, and that “IRS and DOJ attorneys had lied while presenting” a case
against the plaintiff. Compl. at 13. Not only is there no plausible factual basis alleged for this
purported claim, there is no legal basis for this COA. The oaths that government officials take in
assuming their office do not create any private right of action and, therefore, this claim must be
dismissed. See, e.g., Scheiner v. Bloomberg, No. 08 Civ. 9072, 2009 U.S. Dist. LEXIS 21176, at
*9 (S.D.N.Y. Mar. 17, 2009); Mechler v. Hodges, No. C-1-02-948, 2005 U.S. Dist. LEXIS
45448, at *20-21 (S.D. Ohio June 15, 2005); Simon v. N. Farms, No. 97-1164-JTM, 1997 U.S.
Dist. LEXIS 13472, at *17-18 (D. Kan. Aug. 26, 1997).
10
The plaintiff’s first COA alleging a due process violation against the government officials would also fail for
additional reasons that do not necessitate full discussion. For example, this claim against the government officials
has previously been asserted and dismissed in Caldwell IV. See e.g., Caldwell IV, 865 F. Supp. 2d at 41‒42 (“The
claims against Secretary Duncan must also be dismissed because his activities lack a causal connection to the
plaintiff’s claimed harm” and the plaintiff has failed “to state a claim upon which relief may be granted”); id. at 43
(noting that the claims against the Caldwell I Officials are dismissed based on the doctrine of claim preclusion); id.
at 44 (highlighting that the claims against the United States Attorneys must be denied because decisions not to
prosecute are unreviewable). Therefore, this claim is barred under claim preclusion. See Natural Res. Def. Council v.
EPA, 513 F.3d 257, 260-61 (D.C. Cir. 2008) (claim preclusion bars litigation of claims that were or should have
been raised in an earlier suit). This doctrine “serves’the dual purpose of protecting litigants from the burden of
relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing
needless litigation.’" Sheptock v. Fenty, 707 F.3d 326, 330 (D.C. Cir. 2013) (quoting Parklane Hosiery Co. v. Shore,
439 U.S. 322, 326 (1979)).
19
D. Fourth COA: The Plaintiff’s Claims Against Government Officials and
Others under 42 U.S.C. § 1983 Fails to State a Claim
The plaintiff’s Fourth COA alleges violations of 42 U.S.C. § 1983 against “[s]enior U.S.
government officials and judicial branch officers.” Compl. at 16. 11 As noted, the Court
construes this claim against federal actors as a Bivens action, but the factual allegations in
support of this claim are sparse and barely intelligible. The plaintiff merely reiterates his view
that the judges who reviewed his prior cases were “completely prejudice [sic]” and “back-
scratching” and that they “slid under the umbrella of corruption due to the SC protection to
Elena Kagan and Eric Holder.” Id. at 16-17 (emphasis in original). Despite the provocative
language used in this claim, these allegations amount merely to disagreement with the official
actions taken by government officials with regards to the plaintiff’s prior legal proceedings. To
plead a Bivens claim, the plaintiff must allege that the federal officers named as defendants
violated his constitutional rights. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).
“Critical to a Bivens claim is an allegation ‘that the defendant federal official was personally
involved in the illegal conduct.’” Harris v. Holder, 885 F. Supp. 2d 390, 397-398 (D.D.C. 2012)
(citing Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997)); Voinche v.
Obama, 744 F. Supp. 2d 165, 177 (D.D.C. 2010). The complaint is devoid of facts, let alone a
plausible theory, regarding any violation of his constitutional rights through the adjudication of
his prior lawsuits. Therefore, this Fourth COA must be dismissed.
11
The plaintiff also names Argosy University and its President in this COA, even though they are not state or federal
actors and the plaintiff provides no allegation that their actions implicate any state action. See Lugar v. Edmondson
Oil Co., 457 U.S. 922, 941 (1982); Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (“Section 1983 liability
attaches only to individuals ‘who carry a badge of authority of a State and represent it in some capacity’”). Thus, no
claim for relief through Bivens or under § 1983 is plausible and this claim against these private parties is dismissed.
20
E. Seventh COA: The Plaintiff’s Claim Against DOE, USAO and Private
Parties Is Barred
The plaintiff’s Seventh COA is against Argosy University, its president, and “the U.S
Department of Education, the office of the United States Attorney’s office [sic],” Compl. at 23, 12
for allegedly failing “to maintain and safeguard public tax dollars.” Id. This claim has already
been previously dismissed with prejudice in Caldwell IV, 865 F. Supp. 2d at 45. Specifically, the
district court in that case found that the plaintiff’s “claims in his . . . complaint[s are] simply
restatements of the claims in his earlier complaint.” Id. By electing “to simply recycle his
previous claims into his current complaint, the claims against these defendants will be dismissed
with prejudice.” Id. The plaintiff’s instant complaint alleges even less. Apparently, the factual
basis underlying this claim is that “the U.S. government permitted Argosy Univerity (AU), to
award an unearned doctorate degree to a former AU student in 2010.” Compl. at 23. The
plaintiff also chastises the defendants and the Caldwell III district court judge for failing to “read
up on the power of the federal government before dismissing his suit.” Compl. at 23. As these
claims have been previously dismissed with prejudice, the Seventh COA is barred by the
doctrine of claim preclusion.
Under the doctrine of claim preclusion, “a subsequent lawsuit will be barred if there has
been prior litigation (1) involving the same claims or cause of action, (2) between the same
parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court
of competent jurisdiction.” Porter v. Shah, 606 F.3d 809, 813 (D.C. Cir. 2010) (citation
omitted). The doctrine of claim preclusion helps advance the “the conclusive resolution of
disputes” and “preclude[s] parties from contesting matters that they have had a full and fair
12
While this cause of action refers to the U.S. Department of Education and the U.S. Attorney’s Office as
defendants, these entities are not listed as defendants in the caption of the complaint. See Compl. at 1‒3. The
plaintiff, however, has named as defendants Secretary Duncan and the Executive Office of United States Attorneys,
and the Court construes the Seventh COA to allege claims against these defendants.
21
opportunity to litigate[,] protects their adversaries from the expense and vexation attending
multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by
minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147,
153‒54 (1979) (citations omitted). Furthermore, “a ‘final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were or could have been raised
in that action.’” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v. McCurry, 449
U.S. 90, 94 (1980)). Even if a decision is wrongly decided, as the plaintiff alleges, preclusive
effects apply. See City of Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013) (“A court’s power to
decide a case is independent of whether its decision is correct, which is why even an erroneous
judgment is entitled to [claim preclusion] effect.”).
In the instant action, all of the requirements for claim preclusion are met. The plaintiff's
complaint asserts the same claims as alleged in Caldwell III and IV against Argosy University
and its president. See Caldwell III, 797 F. Supp. 2d at 26; Caldwell IV, 865 F. Supp. 2d at 44
(“Plaintiff in his complaint also restates the claims against Argosy University and David Erekson
that he made in his earlier case against these defendants.”). These claims have now been
dismissed in two prior cases. See Caldwell III., 797 F. Supp. 2d at 28; Caldwell IV, 865 F. Supp.
2d at 45. Additionally, the plaintiff’s previous claim against “the Department of Education
alleging a failure to properly evaluate Argosy University for compliance with federal regulations
for awarding degrees,” was dismissed. Caldwell IV, 865 F. Supp. 2d at 39, 42. These dismissals
operate as a final adjudication on the merits. 13 Accordingly, the plaintiff’s Seventh COA is
barred by the doctrine of claim and issue preclusion and is, therefore, dismissed.
13
Under Federal Rule of Civil Procedure 41(b), “any dismissal not under this rule . . . operates as an adjudication on
the merits.” Fed. R. Civ. P. 41(b); Rollins v. Wackenhut Services, Inc., 703 F.3d 122, 132 (D.C. Cir. 2012)
(Kavanaugh, J. concurring) (noting that dismissals under Rule 12(b)(6) are “synonymous with a dismissal with
22
IV. INJUNCTION AGAINST FURTHER FILINGS IN THIS COURT WITHOUT
PRIOR COURT PERMISSION
“The constitutional right of access to the courts . . . is neither absolute nor
unconditional.” In re Green, 669 F.2d 779, 785 (D.C. Cir. 1981). “Courts in this and other
circuits have been required to respond to prolific pro se litigants with ‘determination and
imagination.’” Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985) (internal
citations omitted). “[I]n fashioning a remedy to stem the flow of frivolous actions, a court must
take great care not to ‘unduly impair[ ] [a litigant’s] constitutional right of access to the courts.’”
Id. (internal citations omitted). If a litigant, however, continues to abuse the judicial process by
filing frivolous, duplicative, and harassing lawsuits, “a Court may employ injunctive remedies to
protect the integrity of the courts and the orderly and expeditious administration of justice.” Id.The D.C. Circuit took a close look at the merits of imposing pre-filing injunctions on
overly litigious litigants in In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988), concluding that
courts must properly balance the protection of due process rights with ending groundless,
vexatious litigation. In this jurisdiction, three steps are required before a district court may issue
a pre-filing injunction. See Powell, 851 F.2d at 431. First, concerned with the potential denial of
due process rights, the Court must provide notice and the opportunity to be heard. See id.; see
also Rodriguez v. Shulman, 844 F. Supp. 2d 1, 15 (D.D.C. 2012) (“Due process requires notice
and an opportunity to be heard.”). Second, the court must develop a record for review “in order
to further ensure that the filer’s due process rights are not violated.” Rodriguez, 844 F. Supp. 2d
at 15; see also Kaempfer v. Brown, 872 F.2d 496, 496 (D.C. Cir. 1989) (citing Powell, 851 F.2d
at 431). In this regard, the D.C. Circuit has stated that the district courts should consider “both
the number and content of the filings” when considering an injunction. Powell, 851 F2d. at 434.
prejudice” even when the court does not include the language “with prejudice”) (citing Semtek Int’l Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 505 (2001)).
23
Finally, to avoid vacatur of a pre-filing injunction, the court must “make substantive findings as
to the frivolous or harassing nature of the litigant’s actions.” Powell, 851 F.2d at 431; Colbert v.
Cincinnati Police Dep’t, 867 F. Supp. 2d 34, 35 (D.D.C. 2011). These pre-requisites for
imposition of a pre-filing injunction are amply met here.
First, the plaintiff has received notice and been provided an opportunity to be heard on
the matter of whether a pre-filing injunction should issue. See Order to Show Cause at 2
(ordering plaintiff to set “forth reasons why the Court should not issue an injunction barring the
plaintiff from filing new complaints in this Court and explaining why his instant complaint is not
frivolous, harassing, or duplicative.”). The plaintiff not only received this order but also
responded to it, stating that “The attached ORDER TO SHOW CAUSE is the district court’s
latest act of lunacy that basically reads like a threat against the plaintiff for exercising his
constitutional right to sue a laundry list of CORRUPT federal justices, judges, attorneys, and
senior members of the Obama administration.” Mot. Remove at 4 (emphasis in original).
Second, in evaluating whether the record is sufficient to warrant a pre-filing injunction,
the Court has reviewed the close similarities between and among the instant suit and his previous
four lawsuits, all of which have the same goals: namely to address the “unsettled . . . matter
concerning the plaintiff’s 2005 tax refund,” Compl. at 7; see also Caldwell I Compl. at 5, and/or
to penalize Argosy University and its President, Compl. at 23. On both of these matters, the
plaintiff has admittedly received significant judicial review. Compl. at 7‒8 (“This matter was
presented to the U.S Court of Appeals (3 times) and the [Supreme Court] (2 times),” and
includes “more than 100 court filings.”). After each dismissal, the plaintiff has added to his
growing “laundry list,” Mot. Remove at 4, of defendants each successive judge with a role in
adjudicating the case, including the presiding trial judge and reviewing panel of the Court of
24
Appeals. Although each Judge to consider the plaintiff’s various cases has taken the time to
review the claims and explain the reasons for insufficiency and dismissal, the plaintiff has
challenged the reasons as corrupt in some manner. At this pace, it will not be long before each
Judge of this Court and the Circuit Court of Appeals has an opportunity to be named as a
defendant by this plaintiff. Moreover, the plaintiff continues to assert the same facts in claims
against Argosy University and its president even though those claims have been previously
reviewed and dismissed with prejudice. See Caldwell IV, 865 F. Supp. 2d at 45.
With respect to the final consideration regarding the frivolous or harassing nature of the
litigant’s actions, the D.C. Circuit has cautioned that a pre-filing injunction “should ‘remain very
much the exception to the general rule of free access to the courts,’” and that “‘the use of such
measures against a pro se plaintiff should be approached with particular caution.’” Powell, 851
F.2d at 431 (quoting Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir. 1980)). Fully cognizant of
the impetus towards caution, the Court nonetheless finds that the thoughtful explanations
provided in the judicial decisions issued in the plaintiff’s prior cases regarding the reasons
compelling the previous dismissals of his claims have not satisfied the plaintiff, who has
continued unabated in filing lawsuits seeking repeated reviews of his virtually identical claims.
In this regard, the plaintiff has already made clear his intent to file a third petition for writ of
certiorari following the dismissal in Caldwell IV. See Compl. at 28.
Plaintiff’s repetitive filings of meritless claims against federal officials, federal judges
and private parties, compounded by the cycle of adding on as new defendants each federal judge
who has made a decision against the plaintiff, rises to the level of harassing and vexatiousness to
warrant a pre-filing injunction. As another Judge on this Court stated, “[t]o protect the integrity
of the courts and to prevent further harassment of the defendants, the plaintiff’s filing of
25
duplicative claims must stop.” Mikkilineni v. Penn Nat. Mut. Cas. Ins. Co., 271 F. Supp. 2d 142,
143 (D.D.C. 2003); see also Sparrow v. Reynolds, 646 F. Supp. 834, 839 (D.D.C. 1986) (“[A]
continuous pattern of groundless and vexatious litigation can, at some point, support an order
against further filings of complaints without the permission of the court.”) (citations omitted).
The Court is mindful that other cases in which pre-filing injunctions have been
considered and imposed have involved a more significant number of cases filed against a number
of different defendants by the same plaintiff subject to the injunction. See, e.g., Anderson v.
District of Columbia Pub. Defender Serv., 881 F. Supp. 663, 665 (D.D.C. 1995) (noting plaintiff
had filed 33 complaints “‘against a variety of prosecutors, defense counsel (including the Public
Defender), judges, [and] the Bar Counsel of the District of Columbia Bar,’ and ‘appeals and
applications to the Court of Appeals for writs of mandamus as well as filing charges with the
Chief Judges of this Court and the Circuit, seeking reassignment of his cases or recusal of
judges.’”) (internal citations omitted); Kaufman v. I.R.S., 787 F. Supp. 2d 27, 29-30 (D.D.C.
2011) (noting plaintiff filed at least 15 pro se suits in federal district and bankruptcy courts over
the last ten years, premised on a variety of claims, almost all of which have been dismissed,
warranted pre-filing injunction).
Nonetheless, the requisite finding of harassment or vexatiousness does not rest solely on
some arbitrary threshold number of lawsuits filed but rather must also take account of the
repetitiveness and nature of the claims. See Stich v, v. United States, 773 F. Supp. 469, 470
(D.D.C. 1991) (noting that by filing an identical complaint to one previously dismissed, the
“[p]laintiff has shown an appalling lack of respect for the judicial branch”). Re-filing the same
complaint against the same defendants, as is the case in the instant complaint, is harassing,
particularly when the only notable differences between the otherwise repetitive lawsuits is the
26
addition as new defendants of the judges or other government officials involved in an official
capacity in a previously dismissed suit. See Mikkilineni, 271 F. Supp. 2d at 143 (finding that the
“plaintiff has filed similar claims repeatedly” forcing the “defendants to spend resources
litigating previously-resolved claims” as appropriately harassing in nature to warrant an
injunction); Kaufman, 787 F. Supp. 2d at 29‒30 (“It appears that, whenever Plaintiffs are
unhappy with the result of a case . . . they file a new lawsuit . . . suing the judge, court staff,
lawyers, and/or other government officials involved in the previous case”); Lee v. State Comp.
Ins. Fund, No. 05-670, 2005 WL 1903343, at *1 n.5 (D.D.C. July 13, 2005) (finding when
plaintiff had filed five prior lawsuits relating to his same workers’ compensation award against
the same defendants, court concluded that injunction should issue). Such repeated filing of
meritless claims consumes judicial resources and attention and thereby impedes the
administration of justice generally. Kauffman, 787 F. Supp. 2d at 36 (citing plaintiff’s “improper
filings,” court concluded that “Plaintiffs are impeding the administration of justice and abusing
their electronic filing privileges”).
The Court finds that the plaintiff’s repeated filings of meritless complaints in this district
is both vexatious and harassing to the parties named as defendants and imposes an unwarranted
burden on “the orderly and expeditious administration of justice.” Urban, 768 F.2d at 1500; see
also Davis v. United States, 569 F. Supp. 2d 91, 93, 98-99 (D.D.C. 2008) (imposing a pre-filing
injunction on plaintiffs after filing “their fourth essentially identical suit” because “this repetitive
presentation of essentially identical claims wastes limited judicial resources”). Accordingly, the
plaintiff is enjoined from any subsequent filing in the District Court for the District of Columbia
without first seeking leave from the Court.
27
V. CONCLUSION
For the aforementioned reasons, the plaintiff’s complaint is dismissed sua sponte for
failure to state a claim. Additionally, the plaintiff is enjoined from filing in this Court any new
civil action without first seeking leave to file such complaint. In seeking leave to file any new
complaint, the plaintiff must explain what new matters are raised to warrant the filing of a new
complaint.
An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Beryl A. Howell
DN: cn=Beryl A. Howell, o=District
Date: November 20, 2013 Court for the District of Columbia,
ou=District Court Judge,
email=howell_chambers@dcd.usco
urts.gov, c=US
_________________________
Date: 2013.11.20 16:10:51 -05'00'
BERYL A. HOWELL
United States District Judge
28