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Banda v. Otino

September 1, 2009

JOHN BANDA, PLAINTIFF,
v.
OTINO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William J. Martini United States District Judge

MEMORANDUM OPINION

Martini, District Judge

This matter comes before the Court upon the Clerk's docketing of Plaintiff's "To Whom It May Concern" letter, see Docket Entry No. 4, and -- for the reasons stated below -- Plaintiff's letter indeed causes this Court grave concern in light of Plaintiff's past abusive litigation practices and still ongoing apparent disregard to the order of preclusion already issued against him. This Court, therefore, will amplify the currently existing order of preclusion.

I. The History of Plaintiff's Litigations

Since it appears that Plaintiff entered civil confinement no later than in January of 2004, see Banda v. New Jersey, 05-3183 (JAG) (N.J.D.), Docket Entry No. 2, at 2 (stating that, by January 30, 2004, Plaintiff was already involuntary civilly committed at his current place of confinement, i.e., the Special Treatment Unit Annex, Avenel, New Jersey ("Avenel"), as a sexually violent predator, pursuant to the Sexually Violent Predator Act ("SVPA"), N.J. Stat. Ann. § 30:4-27.24, et seq.), the Court subdivides, for ease of comprehension, the multitude of Plaintiff's litigations into two groups, i.e., the litigations initiated before Plaintiff entered civil commitment*fn1 and those commenced after Plaintiff became a civilly committed individual.*fn2

A. Actions Initiated Prior to Civil Confinement

1. Civil Actions Nos. 00-669 (JEI) and 00-1851 (JHR)

It appears that Plaintiff's first exercise in federal litigation took place on February 14, 2000, when he filed a pro se civil complaint in Banda v. Medford Police, 00-669 (JEI) (D.N.J.) ("Medford Action"). See id. Docket Entry No. 1. Since Plaintiff's pleadings were accompanied by his application to proceed in that matter in forma pauperis, Judge Irenas, presiding over the Medford Action, granted Plaintiff in forma pauperis status. See id. Docket Entries Nos. 1 and 2. After Plaintiff's pleadings were served upon the defendants, the defendants moved for dismissal of Plaintiff's complaint pursuant to Rule 12(b), asserting lack of jurisdiction or, alternatively, Plaintiff's failure to state a claim upon which relief can be granted. See id. Docket Entries Nos. 6 and 7. On June 6, 2000, Judge Irenas granted the defendants' motion dismissing the complaint for failure to state a cognizable claim. See id. Docket Entries No. 8 and 9. In sum, less than five months after being commenced, Plaintiff's Medford Action was "stricken" out.*fn3

Commenced on April 18, 2000, Plaintiff's litigation in Banda v. Barfield, 00-1851 (JHR) (D.N.J.) ("Barfield Action"), fared no better. There, Judge Rodrigues similarly granted Plaintiff in forma pauperis status to prosecute his civil rights claims, see id. Docket Entry No. 2, and --- six months later, i.e., on October 11, 2000 -- dismissed Plaintiff's complaint. See id. Docket Entry No. 10.

2. Civil Actions Nos. 02-5610 (JEI)

Two years passed by until Plaintiff initiated his next civil litigation on October 25, 2002, filing a civil rights complaint in Banda v. Morgan, 02-5610 (JEI) (D.N.J.) ("Morgan Action"). Same as in his Medford and Barfield Actions, Plaintiff applied for in forma pauperis status, and duly obtained the same from Judge Irenas, who presided over this new matter. See id. Docket Entry No. 3. However, right in his order granting Plaintiff in forma pauperis status, Judge Iranas also dismissed all Plaintiff's claims except for the one raised against defendant Friel, with regard to which Judge Irenas directed service. See id.

On February 27, 2003, defendant Friel moved, under Rule 12, for dismissal of Plaintiff's allegations on the grounds of Plaintiff's failure to state a claim upon which relief may be granted. See id. Docket Entry No. 9, see also id. Docket Entry No. 16 (Plaintiff's letter clarifying the nature of defendant Friel's response). However, in light of Plaintiff's application to file an amended complaint altering the already-dismissed claims against all other defendants, Judge Irenas granted Plaintiff leave to amend on March 21, 2003. Within one week, the amended complaint and Plaintiff's bill of particulars were docketed, see id. Docket Entries Nos. 21 and 23-24, and -- just five days later -- Judge Irenas granted defendant Friel's Rule 12(b) motion and, in addition, dismissed Plaintiff's amended claims against all other defendants sua sponte, citing Plaintiff's failure to state a claim. See id. Docket Entries Nos. 27 and 28; accord id. Docket Entry No. 30.

After unsuccessfully moving Judge Irenas for reconsideration of that final dismissal, see id. Docket Entries Nos. 30 and 36-37,*fn4 Plaintiff appealed, also in forma pauperis, to the United States Court of Appeals for the Third Circuit. See id. Docket Entries Nos. 41 and 42. The Court of Appeals dismissed Plaintiff's application for lack of jurisdiction. See Docket Entry No. 49. Petitioner, then, filed an application for a writ of certiorari with the United States Supreme Court, see id. Docket Entry No. 52, which the Supreme Court denied. See id. Docket Entry No. 54. Simply put, Plaintiff's Morgan Action was "stricken" too, just as his prior federal litigations.

3. Civil Actions Nos. 03-2045 (JEI)

On the day when Judge Irenas dismissed Plaintiff's motion for re-reconsideration in the Morgan Action, Plaintiff commenced his next civil rights litigation, Banda v. Burlington County, 03- 2045 (JEI) (D.N.J.) ("Burlington Action"). Same as Plaintiff's prior matters, the Burlington Action was initiated in forma pauperis. See id. Docket Entries Nos. 1 and 3. Five and a half months later, Judge Irenas issued an order and accompanying opinion granting Plaintiff in forma pauperis status and, in addition, dismissed all Plaintiff's claims. See id. Docket Entry No. 3. Two weeks later, Plaintiff moved for reconsideration, see id. Docket Entry No. 4, which was denied next week. See id. Docket Entries Nos. 5 and 6.

Proceeding in forma pauperis, Plaintiff appealed Judge Irenas' decision to the Court of Appeals. See id. Docket Entries Nos. 7 and 10. On March 3, 2005, the Court of Appeals remanded that matter stating as follows:

[Plaintiff] filed a civil rights complaint . . . alleging procedural due process violation in the granting by a New Jersey state court of a forfeiture complaint against his property (RV camper) without notice. [Plaintiff] sought compensatory damages, early release from prison . . . , restoration of his driver's license, return of his camper, and to be "left alone by all law enforcement agencies within the state." At the time [Plaintiff] filed his complaint, the state forfeiture proceedings were ongoing. . . . [T]he District Court granted [Plaintiff] in forma pauperis status and sua sponte dismissed the complaint . . . pursuant to the Younger doctrine [under which] it would not be appropriate for the court to interfere with the ongoing state forfeiture action. [However,] according to [Plaintiff,] the state forfeiture proceedings are now [i.e., at the time when the appeal was either filed or decided] complete. Accordingly, abstention is no longer appropriate. We will therefore . . . remand [the matter] for further proceedings.

Id. Docket Entry No. 19.

On March 22, 2005, Judge Irenas issued an order directing service of Plaintiff's original complaint upon defendants. See id. Docket Entry No. 20. Twelve days later, the Clerk received Plaintiff's amended complaint, see id. Docket Entry No. 22, which the defendants moved to dismiss two weeks later, asserting that Plaintiff was raising claims against defendants immune from suit. See id. Docket Entry No. 23. Plaintiff, in response, moved for declaratory judgment, which was denied by Judge Irenas and caused Plaintiff's filing of an interlocutory appeal. See id. Dockets Entries Nos. 25-28. Finding no basis to grant him interlocutory appeal, the Court of Appeals denied Plaintiff's application, see id. Docket Entry No. 41, and on September 26, 2006, Judge Irenas dismissed Plaintiff's complaint on the grounds that Plaintiff's failure to state a cognizable claim and, in addition, because Plaintiff was suing the defendants immune from suit. See id. Docket Entries Nos. 50 and 51 (clarifying that the decision was granted with regard to defendants' Rule 12(c) motion and conversion of another defendants' motion to dismiss into a motion for summary judgment).

After Judge Irenas denied Plaintiff's motion for reconsideration, see id. Docket Entries Nos. 52 and 55, another in forma pauperis appeal followed, see id. Docket Entry No. 58, and was dismissed by the Court of Appeals. See id. Dockets Entries Nos. 58, 60 and 60-2 (affirming Judge Irenas' conclusion and stating that Plaintiff's claims against county defendants failed to state a claim, while his claims against the prosecutors were barred by absolute immunity). In other words, Plaintiff's Burlington Action was also "stricken" out.

B. Actions Commenced During Civil Confinement

1. Civil Actions Nos. 04-5632 (AET)

It appears that Plaintiff entered civil commitment about the same time when the Court of Appeals granted him in forma pauperis status with regard to his first -- out of his three -- appeals of Judge Irenas' decision in the Burlington Action. Ten months after entering his civil commitment, Plaintiff initiated another litigation, Banda v. New Jersey, 04-5632 (AET) (D.N.J.) ("New Jersey I Action"), proceeding in forma pauperis.*fn5 See id. Docket Entry No. 1.

Since Plaintiff's complaint in the New Jersey I Action asserted that Plaintiff was unlawfully confined at Avenel and sought monetary damages for this confinement, Judge Thompson dismissed Plaintiff's claims, pursuant to the holding of Preiser v. Rodriguez, 411 U.S. 475 (1973), and also dismissed his claims against the state under the Eleventh Amendment immunity. See id. Docket Entry No. 2.

One week later, Plaintiff moved Judge Thompson for reconsideration, see id. Docket Entry No. 4, and ---in one more week, i.e., before Judge Thompson even had a chance to rule on his motion --- filed an in forma pauperis appeal with the Court of Appeals for the Third Circuit, see id. Docket Entry No. 5, which resulted in a stay of Plaintiff's appeal on the grounds of his pending motion for reconsideration. See id. Docket Entry No. 8. Eventually, Judge Thompson denied Plaintiff reconsideration, see id. Docket Entries Nos. 9 and 10, and the Court of Appeals affirmed. See id. Docket Entry No. 16-2 (repeating Judge Thompson's explanations and supplementing her discussion of prematurity under Preiser v. Rodriguez with a discussion of Heck v. Humphrey, 512 U.S. 477 (1994)). Plaintiff's in forma pauperis application to the Supreme Court for a writ of certiorari was similarly denied. See id. Docket Entries Nos. 17 and 18. Thus, Plaintiff's New Jersey I Action was "stricken" out, same as Plaintiff's pre-civil commitment federal litigations.

2. Civil Actions Nos. 05-2078 (WJM)

While he was awaiting the Court of Appeals' ruling as to his New Jersey I Action, Plaintiff commenced another litigation in this District, i.e., Banda v. NJ Special Treatment Annex, 05-2078 (WJM) (D.N.J.) ("Special Treatment Annex Action"). Proceeding, again, in forma pauperis, Plaintiff submitted a forty-page complaint effectively replicating his dismissed-by-Judge-Thompson-and-then-pending-on-appeal challenges raised in the New Jersey I Action. See id. Docket Entry No. 5, at 1-3 (discussing the similarities between the complaints). Presiding over Plaintiff's Special Treatment Annex Action, the undersigned granted Plaintiff in forma pauperis status and dismissed the complaint on the grounds substantively identical to those already articulated to Plaintiff by Judge Thompson. See id.

One week after this Court dismissed Plaintiff's complaint in the Special Treatment Annex Action (which was one month after the Court of Appeals' affirmance of Judge Thompson's decision), Plaintiff appealed this Court's decision to the Court of Appeals proceeding, again, in forma pauperis. See id. Docket Entry No. 8. Not surprisingly, the Court of Appeals registered Plaintiff's appeal of this Court's ruling as duplicative of his appeal in the New Jersey I Action, see id. Docket Entry No. 10, and dismissed Plaintiff's appeal of this Court's decision in the Special Treatment Annex Action as frivolous. See id. Docket Entry No. 13. In sum, Plaintiff incurred another "strike."

3. Civil Actions Nos. 05-2622 (WJM)

But even before this Court had an opportunity to rule on Plaintiff's Special Treatment Annex Action, Plaintiff already generated another civil litigation, i.e., Banda v. NJ Dept. Human Services, 05-2622 (WJM) (D.N.J.) ("Human Services Action"), by submitting a fifty-three page complaint and, as always, an in forma pauperis application. See id. Docket Entry No. 1. The complaint, naming fourteen defendants ranging from the New Jersey Department of Human Services to staff of Avenel, essentially re-alleged the claims raised in the New Jersey I Action and Special Treatment Annex Action. See id. Docket Entries Nos. 1, 1-2 and 1-3. This Court, therefore, re-explained to Plaintiff, once again, the concept of prematurity (ensuing from the holdings of Preiser v. Rodriguez and Heck v. Humphrey) and dismissed this new complaint while allowing Plaintiff to proceed in forma pauperis. See id. Docket Entries Nos. 3 and 4.

One week after that dismissal, Plaintiff filed an in forma pauperis appeal, see id. Docket Entry No. 5, causing the Court of Appeals to register this new appeal as another duplicative application, which, too, was dismissed as frivolous. See id. Docket Entries Nos. 8 and 11. Simply put, Plaintiff got himself yet another "strike."

4. Civil Actions Nos. 05-3183 (JAG)

While the Human Services Action was still pending before this Court, Plaintiff already initiated a habeas litigation in Banda v. New Jersey, 05-3183 (JAG) (D.N.J.) ("New Jersey II Action"), see id. Docket Entry No. 1, where Plaintiff duly prepaid his filing fee of $5.00. See Docket Entry No. 1.

Although Plaintiff challenged his civil commitment and sought immediate release, his petition in the New Jersey II Action facially indicated that it was unexhausted in the state courts. See id. Docket Entry No. 1. Therefore, Judge Greenaway, presiding over the New Jersey II Action, dismissed the petition as unexhausted and declined to issue a certificate of appealability. See id. Docket Entries Nos. 2 and 3. Plaintiff then informed Judge Greenaway that his state challenges were pending with the Superior Court of New Jersey, Appellate Division, and requested six- to twelve-month stay of his petition.*fn6 See id. Docket Entries Nos. 4-7. Finding that Plaintiff's statute of limitations for the purposes of the Anti-Terrorism and Effective Death Penalty Act had not even begun to run, Judge Greenaway denied Plaintiff's request. See id. Docket Entries Nos. 7 and 8.

5. Civil Actions Nos. 06-093 (PGS)

While still seeking a stay from Judge Greenaway with regard to his New Jersey II Action, and already having the benefit of this Court, Judge Thompson and the Court of Appeals' guidance as to his claims raised in the Human Services Action, Special Treatment Annex Action and New Jersey I Action, Plaintiff produced another litigation, Banda v. McGreevey, 06-093 (PGS) (D.N.J.) ("McGreevey Action"), by filing a hundred-thirty-one page civil rights complaint naming forty defendants, ...


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