Green v. Wyrick

Decision Date10 November 1976
Docket NumberNo. 76 CV 147-C.,76 CV 147-C.
Citation428 F. Supp. 732
PartiesClovis Carl GREEN, Jr., Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Respondent.
CourtU.S. District Court — Western District of Missouri

Clovis Carl Green, Jr., pro se.

Philip M. Koppe, William F. Arnet, Asst. Attys. Gen., State of Missouri, Jefferson, Mo., for respondent.

ORDER

ELMO B. HUNTER, District Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, originally filed this action as a petition for writ of habeas corpus challenging conditions of his confinement. Leave to proceed in forma pauperis was granted by Order entered August 6, 1976, and following the filing of respondent's response and petitioner's traverse,1 this cause was set for full evidentiary hearing to commence on Tuesday, October 19, 1976.

On October 15, 1976, respondent filed a Motion for Permanent Injunction pursuant to 28 U.S.C. § 1651, seeking to perpetually restrain and enjoin petitioner from filing or instituting in this or any other court, on his own behalf or on behalf of any other inmate of the Missouri penal system, any action against the State of Missouri or any of its officials or employees, including the state judiciary, for any alleged cause of action arising out of his criminal conviction or his resultant confinement incident thereto, and further to restrain and enjoin petitioner from assisting, aiding or representing any inmates of the Missouri penal system in the preparation of any legal documents whatsoever. Because respondent's Motion for Permanent Injunction raised an issue separable from those raised in the petition for writ of habeas corpus, and because each was a matter of substantial complexity and great importance, warranting clear presentation and careful consideration, the Court on its own motion ordered a separate trial on the issues raised in respondent's Motion for Permanent Injunction, to commence on Monday, October 18, 1976, separately from the hearing of the merits of the other issues in this case, previously set to commence on October 19, 1976.

The evidentiary hearing on respondent's Motion for Permanent Injunction was held in Jefferson City, Missouri, October 18-20, 1976. Upon calling of the remaining portion of the case, previously set to be heard on October 19, 1976, it was apparent to the Court that petitioner was not prepared to proceed with the trial of the action.2 Accordingly, a continuance of that portion of the case was granted. Thereafter, upon consideration of the evidence adduced in the hearing on respondent's Motion for Permanent Injunction, the Court entered its Order of November 1, 1976, withdrawing leave to proceed in forma pauperis and dismissing that portion of this action involving petitioner's claims, on the ground that petitioner is not a "pauper" within the meaning of 28 U.S.C. § 1915, and that in representing himself to be a pauper, petitioner intentionally engaged in a fraud upon this Court. Subsequently, by Order entered November 3, 1976, the Court ordered separate entry of judgment, pursuant to Rule 54, Federal Rules of Civil Procedure, with respect to the withdrawal of leave to proceed in forma pauperis and dismissal of petitioner's claims.

This cause now pends for determination of respondent's Motion for Permanent Injunction. Before discussing at length the merits of this issue, however, it is necessary to address petitioner's objection to the hearing on respondent's Motion for Permanent Injunction. Specifically, petitioner contends that he had inadequate notice of the October 18, 1976, hearing and thus was unable to prepare his case in opposition to respondent's motion.

The Court finds petitioner's objection to be without merit. Rule 6(d) of the Federal Rules of Civil Procedure, on which petitioner's objection was based, provides that a motion and notice of hearing "shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of court." Respondent's motion, bearing certificate of service to petitioner on October 15, 1976, was filed on that date. By Order entered that same day, the Court on its own motion ordered a separate hearing on the Motion for Permanent Injunction and set the time for that hearing on October 18, 1976. Thus, the provision of Rule 6(d) for a notice period fixed "by order of court" was followed in this case.

Moreover, as the case authority on this subject clearly illustrates, Rule 6(d) is not a hard and fast rule. If the party had actual notice of the hearing and time to prepare to meet questions raised by the motion, the cases hold that Rule 6(d) should not be applied. Herron v. Herron, 255 F.2d 589 (5th Cir. 1958); see Anderson v. Brady, 5 F.R.D. 85 (E.D.Ky.1945). Petitioner was notified of respondent's motion of Friday, October 15, 1976, in anticipation of an October 19, 1976, hearing date. Even assuming the truth of petitioner's assertion that only on the morning of October 18, did he receive notice of the Court's Order setting a separate hearing on respondent's motion to commence on October 18, 1976, petitioner was aware much earlier of the need to meet that issue at the October 19, 1976, hearing. Indeed, petitioner had been aware of the presence of the injunction issue in this case since August 25, 1976, when respondent's Response to Order to Show Cause asserted that petitioner should be required to show cause why he should not be enjoined from filing this action. In fact, petitioner's traverse, filed September 10, 1976, addressed that very issue. Petitioner's preparation to meet that issue in the October 18, 1976, hearing is further illustrated by the fact that on the morning of October 18 he submitted to the Court a three-page "Petition for Habeas Corpus to Suppress the Motion for Permanent Injunction," and provided the Court the list of witnesses he intended to call during the hearing. In addition, during the course of the hearing, petitioner submitted his eight-page, typewritten "Motion to Dismiss the Respondent's Motion for Permanent Injunction," dated October 18, 1976, containing six separate legal arguments supported by numerous case citations and lengthy discussion of case authority. Under these circumstances Rule 6(d) presented no bar to the October 18, 1976, hearing on respondent's Motion for Permanent Injunction and petitioner clearly was not prejudiced by the absence of a five-day period.3

Turning to the merits of respondent's Motion for Permanent Injunction, the Court has reached the following determination. On the basis of the record before the Court, including the files and pleadings of both parties relating to this issue and the testimony and evidence introduced at the hearing on this motion, respondent's Motion for Permanent Injunction pursuant to 28 U.S.C. § 1651 will be granted with respect to actions which petitioner in the future may file on behalf of any other inmate of the Missouri penal system and in which in the future petitioner may assist, aid, or represent any inmate of the Missouri penal system in the preparation of any legal documents whatsoever.

Petitioner has clearly abused the judicial process. By Order entered August 9, 1976, in the case of Green v. Garrott, No. 76 CV 135-C, 71 F.R.D. 680 (W.D.Mo.1976), aff'd Misc. No. 76-8184 (8th Cir. Nov. 2, 1976), this Court pointed out that petitioner "indeed does have a continuing history of engaging in a gross abuse of the judicial process which is impeding the ability of the Judiciary to carry out its proper functions." In support of that observation, the Court noted that as of that date, petitioner had filed . . . on his own behalf a total of 219 civil cases, in the trial and appellate courts in a comparatively brief period of time and is continuing to file such cases at an accelerated rate. . . ." Now taking judicial notice of its own docket, the Court observes that since the filing of the above Opinion and Order in Green v. Garrott, Mo., 71 F.R.D. 680, 1976, petitioner has filed an additional seven cases in his own behalf.

This Court has not been alone in noting petitioner's litigious history. In affirming this Court's Order in the case of Green v. Wyrick, Misc. No. 76-8096 (8th Cir., June 3, 1976), the United States Court of Appeals for the Eighth Circuit stated, "There is strong reason to believe that petitioner may be seriously abusing his right to access to the courts for redress of grievances . . . ." The statement of Judge Lay, Circuit Judge, in the affirmance of this Court's opinion in Green v. Garrott, supra, emphasizes further the conclusion that petitioner has stretched the judicial process to its limits.4 Other federal judges have come independently to the same conclusion. In a memorandum filed July 19, 1976, in Green v. United States of America, et al., No. 76 CV-100-C, the Honorable H. Kenneth Wangelin, United States District Judge for the Eastern District of Missouri, observed that petitioner is "a profligate writ writer and jail house lawyer" who repeatedly has "chosen to obstruct other good faith litigants from access to the court by his continual filing of frivolous lawsuits. .." Judge Wangelin also noted that "The obvious intent of the plaintiff's complaint is to harass the Court, as evidenced by his numerous filings." By memorandum filed August 25, 1976, in that same case, Judge Wangelin observed: "As of this date, the petitioner, Clovis Carl Green, Jr., has filed in excess of two hundred lawsuits. Green v. Garrott, 71 F.R.D. 680 (W.D.Mo.1976). All of these lawsuits have been frivolous and there is no indication that the petitioner will ever cease his litigious activities unless he is enjoined." Accordingly, Judge Wangelin entered his Order forever enjoining Clovis Carl Green, Jr., from filing any further lawsuits concerning the administration and operation of the United States District Court for the Western District of Missouri. Green v. United States of...

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