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Tommie H. Telfair v. Karen P. Tandy

June 23, 2011

TOMMIE H. TELFAIR, PLAINTIFF,
v.
KAREN P. TANDY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Martini, District Judge

OPINION

This matter comes before the Court upon Plaintiff's filing of a slew of motions, letters, notices and analogous documents, see Docket Entries Nos. 43-68 and 70-72, submitted after this Court's grant of summary judgment as to some Defendants. See Docket Entries Nos. 41-42. For the reasons detailed below: (a) Plaintiff's above-listed submissions will be dismissed; (b) stay as to Plaintiff's claims previously stayed by the Court will be extended; (c) Plaintiff's claims proceeded past sua sponte dismissal and not disposed of in the Court's summary judgment decision will be dismissed without prejudice, and Plaintiff will be directed to file a clear and concise amended pleading; (d) the limited order of preclusion imposed upon Plaintiff will be adopted for ninety days; and (e) Plaintiff will be ordered to show cause as to why the order of preclusion should not govern the remainder of this matter and Plaintiff's future non-emergent pro se, in forma pauperis civil actions in this District.

I. BACKGROUND

Plaintiff's instant action appears to be both the first civil rights action commenced by Plaintiff in this District and his sole currently pending civil rights action. Other actions, instituted against or by Plaintiff, as well as the proceedings instituted against a certain Catrina R. Gatling ("Gatling"), Plaintiff's former girlfriend, are closely related to the case at bar. Therefore, a brief overview of these actions and a summary of the instant matter appear helpful.

A. Other Actions in This District

A detailed overview of the criminal proceedings instituted against Plaintiff and Gatling, as well as all civil actions commenced by Plaintiff in this District, was already conducted in In re Telfair, 745 F. Supp. 2d 536 (D.N.J. 2010), a decision providing citations to all relevant docket entries in each such action. Therefore, a brief summary should suffice.

The events that gave rise to Plaintiff's criminal prosecution began to unfold on September 5, 2006, when police was dispatched to investigate a report of gunfire at a certain residence in Newark, New Jersey. See id. at 538. Upon seeing several bullet holes in the back door and empty shell casings nearby, police entered the residence with consent of two occupants. See id. A search of the residence produced large amounts of various controlled substances. See id. The occupants stated that the substances belonged to an individual named "Hassan Gatling," which was Plaintiff's alias; they also stated that they were employed by Plaintiff to pack these substances, seemingly, for retail sale. See id. Consequently, an arrest warrant was issued as to Plaintiff on September 8, 2006, and -- four and a half months later, i.e., on January 23, 2007 - he was arrested at the home of Gatling, who was, by then, notified by the law enforcement authorities that Plaintiff was subject to arrest warrant and, hence, knew that she was harboring a felon. See id. Plaintiff was indicted (and then re-indicted, twice) on drug-related offenses. See id.

Plaintiff initially retained a certain Paul Bergrin ("Bergrin") as his defense counsel. See id. However, Plaintiff swiftly terminated Bergrin's representation, and a certain James Kimball ("Kimball"), a CJA attorney, was appointed to represent Plaintiff. See id. at 540. Not long thereafter, Plaintiff terminated Kimball's appointment, and a certain Michael Pedicini ("Pedicini"), another CJA attorney, took over. See id. at 541. Plaintiff sent threatening letters to Kimball and Pedicini and filed disciplinary grievances against Bergrin, Kimball and Pedicini with the Office of Attorney Ethics ("OAE"); in addition, Plaintiff instituted legal malpractice suits against Pedicini and Bergrin (and, potentially, against Kimball too). See id. at 541-46. He also filed disciplinary grievances with the OAE against his prosecutors. See id. at 565-66.

When Plaintiff's then-latest defense counsel, that is, Pedicini, learned about Plaintiff's legal malpractice suit against him, Pedicini resigned to avoid conflict of interest. See id. at 565. By that time, Plaintiff was already convicted by his jury. See id. at 543.

During pre-sentencing stages of his criminal prosecution, Plaintiff - while being represented by three different defense attorneys*fn1 -- filed in his criminal docket fifty-one pro se applications, including motions, petitions and various letters (many of which replicated each other many times over) totaling one thousand one hundred thirty six pages; some of these submissions made allegations against this Court and referred to the instant proceedings.*fn2 See id. at 541, 583-84.

Meanwhile, Gatling was charged with harboring a felon, released on bail on the day of her arrest and, eventually, pled guilty. See id. at 550-51.

About a year after his arrest, and while still awaiting resolution of his criminal proceedings, Plaintiff initiated the instant matter, pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).*fn3 A year later, he initiated another Bivens action, challenging the same transactions and, in addition, raising premature § 2255 habeas challenges; another year later, he commenced one more Bivens action challenging the same. See id. at 549. Plaintiff's complaints in those two matters yielded seventy eight pages.*fn4

See id. at 587.

On June 3, 2010, Plaintiff filed a series of documents mimicking a disciplinary grievance submitted on behalf of himself and Gatling. See id. at 551-60. Although this set of submissions was reduced to mere four docket entries, it yielded three hundred forty two pages, many of which replicated one another over and over again. See id. at 584. This set of submissions was determined to be not a bona fide ethics application but a mix of: (a) Plaintiff's Bivens claims repeating the challenges at the heart of the instant matter; (b) habeas-like claims; and (c) § 1983 allegations raised without proper standing on behalf of Gatling. See Telfair et al. v. Office of the U.S. Attorney, Civ. Action No. 10-2958 (GEB) (D.N.J.). The decision dismissing these claims and declining to initiate a disciplinary investigation in this District also imposed a limited order of preclusion upon Plaintiff. See id., Docket Entries Nos. 7 and 8. Pursuant to that limited preclusion order:

a. in any currently pending action, such as the instant matter, Plaintiff was directed to seek leave from the presiding judge to make any unauthorized pro se submission; he was directed to do so by filing a one-page request averring that Plaintiff wished to raise bona fide new challenges and summarizing, clearly and concisely, the what exactly he wished to assert;*fn5 and

b. with regard to any future civil rights action filed in this District pro se and in forma pauperis (except for emergent Bivens actions), Plaintiff was directed to seek leave from the Clerk to commence such action; he was directed to do so by filing a one-page request averring that Plaintiff wished to raise bona fide new claims and summarizing facts of Plaintiff's proposed challenges clearly and concisely.

See id., Docket Entry No. 8.

B. Plaintiff's Appellate Challenges

While Plaintiff filed numerous appeals with regard to his still-ongoing criminal prosecution and with regard to the instant matter, his only appellate proceeding pending at this juncture is the one filed with regard to Plaintiff's submissions mimicking a disciplinary grievance. See Telfair et al. v. Office of US Attorney, USCA Civ. Action No. 10-4193 (3d Cir.).

In that appeal, Plaintiff filed a forty-eight-page "Notice to the Appellate Court, In Support of Due Process Violations, and Deliberate Indifference to the Constitution." See id., Docket Entry dated Apr. 5, 2011 ("Notice").*fn6 Plaintiff also filed the same Notice in this matter, expressly addressing it to this Court and, hence, requesting this Court's ruling on his submission.*fn7

Compare Instant Matter, Docket Entry No. 72, to Telfair et al. v. Office of US Attorney, USCA Civ. Action No. 10-4193 (3d Cir.), Docket Entry docketed on April 5, 2011.

Plaintiff's Notice detailed his reading of law, see generally, id., and asserted that he was unduly prejudiced by Judge Cavanaugh's order directing the Clerk not to accept any Plaintiff's pro se submissions in Plaintiff's criminal proceedings. See id. at 3-5. In addition, seemingly in connection with the order of preclusion entered in the currently-on-appeal action addressing Plaintiff's submissions styled to mimic a disciplinary grievance, Plaintiff asserted that his inability to make as many and as lengthy filings as he desires, in every action Plaintiff is a party to, endangers Plaintiff's ability to meet temporal procedural requirements.*fn8 See id. at 10-11. He also asserted that the filing limitation might prevent him from "managing and maintaining the momentum" of his litigations.*fn9 See id. at 12.

C. Procedural History of the Instant Matter

The instant matter was commenced upon Plaintiff's submission of a Bivens complaint; the Clerk received it on February 7, 2008. See Instant Matter, Docket Entry No. 1. Upon screening Plaintiff's complaint, this Court concluded as follows:

[Plaintiff], a federal prisoner currently confined at the Hudson County Correctional Center in South Kearny, New Jersey, . . . brings a civil rights complaint against the following defendants: Karen P. Tandy, Administrator of the . . . DEA; Gerard P. McAleer, Director [of the] DEA in Newark; 1-50 unknown DEA agents; 1-50 unknown federal agents; Ray McCarthy, Chief of Police [in] Newark; Murad Muhammed [an officer with the] Newark Police . . . ; 1-50 unknown police officers; Paul W. Ber[g]rin, Esq.; and Christopher Christie, United States Attorney for the District of New Jersey. . . . [Plaintiff] alleges that on January 23, 2007, he was taken into custody by DEA agents, who used terroristic threats to force [him] to admit to drug trafficking crimes or cooperate with the agents in their investigation. . . . [Plaintiff] further alleges that he had repeatedly requested an attorney during his custodial interrogation, but his request was denied. . . . [Plaintiff] alleges that he was pressured to take the Government's plea offer, and not to make any motions with respect to the criminal charges against him. . . . [Plaintiff] claims that the defendants violated his constitutional rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. Namely, he asserts claims of false arrest, unlawful search and seizure, falsifying documents and evidence, intimidation, criminal threats, coercion, denial of his Miranda rights, denial of medical treatment, theft or conversion of personal property, denial of due process and equal protection, selective and malicious prosecution, and denial of his right to a speedy trial. Id. Docket Entry No. 14, at 1-5.

When the Court was screening Plaintiff's pleadings, the United States Supreme Court was yet to issue its pivotal standard-of-review case, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Thus, this Court relied on Erickson v. Pardus, 551 U.S. 89 (2007), in order to screen Plaintiff's pleadings*fn10 under the prior standard-of-review test set forth in Conley v. Gibson, 355 U.S. 41 (1957).*fn11 See id. Docket Entry No. 14, at 8.

With regard to Plaintiff's false arrest claims, the Court concluded that - in light of Plaintiff's assertion "that the DEA agents and other police officers had no reasonable suspicion or probable cause to arrest him" - these claims had to be proceeded past the sua sponte dismissal stage. See id. at 14. Then, discussing the interplay between Wallace v. Kato, 549 U.S. 384 (2007), and its predecessor case, Heck v. Humphrey, 512 U.S. 477 (1994), this Court found that a stay was warranted as to these claims.*fn12 See id. at 19.

The Court dismissed Plaintiff's claims against Bergrin for failure to meet the color-of-law requirement, see id. at 21, and also dismissed Plaintiff's claims against his prosecutors on the grounds of prosecutorial immunity. See id. at 23. While these lines of claims were dismissed with prejudice, Plaintiff's claims alleging malicious prosecution were dismissed as unripe in light of Plaintiff's facial inability to assert facts in support of some elements of this tort. See id. at 24.

Addressing Plaintiff's allegation that "his Miranda rights were violated," this Court dismissed these claims on the grounds that police questioning without a Miranda warning cannot give rise to a cognizable Bivens claim. Id. at 25-26. Then, turning to Plaintiff's due process, speedy trial and equal protection allegations, as well as to Plaintiff's property claims, this Court dismissed those challenges for failure to state a claim upon which relief can be granted or as barred by FTCA procedural requirements. See id. at 28-29.

Consequently, the Court directed service solely with regard to: (a) Plaintiff's allegations that Plaintiff was denied medical care for his allegedly broken hand; and (b) Plaintiff's claims against Defendants other than those who were implicated only in Plaintiff's allegations expressly dismissed by the Court.*fn13 See id. at 27-28.

After process was served on all Defendants other than Bergrin and the United States Attorney (i.e., on Defendants Karen Tandy ("Tandy"), Gerard McAleer ("McAleer"), and Messrs. McCarthy and Muhammad), Tandy and McAleer moved for summary judgment asserting that Plaintiff sued Tandy and McAleer solely on the grounds of their supervisory positions. See id., Docket Entry No. 30. This Court granted Tandy and McAller's motion, hence dismissing all Plaintiff's claims against them. See id., Docket Entry No. 41.

Meanwhile, Plaintiff kept filing a slew of submissions. Specifically, he filed:

a. a ten-page "Petition in Support of Civil Motion," see id. Docket Entry No. 12;

b. a nineteen-page "Memorandum of Law in Support of Bail Motion and Due Process Violations" raising issues not raised in his original or amended pleadings, see id. Docket Entry No. 13;

c. an appeal challenging this Court's dismissal of facially meritless claims, see id. Docket Entry No. 20;

d. a letter asserting that this Court is "sabotaging" Plaintiff's challenges, see id. Docket Entry No. 25;

e. a letter informing this Court about Plaintiff's legal malpractice suit against Bergrin," see id. Docket Entry No. 31;

f. a "Declaration in Support of Plaintiff-petitioner(s) Civil-Action," which asserted that this Court was not providing Plaintiff with "constitutionally fair administration of justice," see id. Docket Entry No. 32;

g. a "Declaration in Support of Petitioner(s)," largely maintaining the same, see id. Docket Entry No. 33;

h. another "Declaration" asserting, once again, the same, see id. Docket Entry No. 34;

i. a letter addressed to the Court of Appeals requesting a speedier decision with regard to Plaintiff's appeal of this Court's sua sponte screening determinations, see id. Docket Entry No. 37;

j. a Rule 60 motion, see id. Docket Entry No. 38; k. a copy of Petitioner's threatening letter addressed to Pedicini, who was then representing Petitioner in the criminal proceedings before Judge Cavanaugh, see id. Docket Entry No. 39;

l. a letter informing this Court that Plaintiff was applying for certiorari from the United States Supreme Court,*fn1 ...


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