Green v. Warden, U.S. Penitentiary

• Decision Date: 28 January 1983
• Docket Number: No. 81-3067,81-3067
• Citation: 699 F.2d 364
• Parties: 12 Fed. R. Evid. Serv. 1078 Clovis Carl GREEN, Jr., Plaintiff-Appellant, v. WARDEN, U.S. PENITENTIARY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 364

699 F.2d 364

12 Fed. R. Evid. Serv. 1078

Clovis Carl GREEN, Jr., Plaintiff-Appellant, v. WARDEN, U.S. PENITENTIARY, Defendant-Appellee.

No. 81-3067.

United States Court of Appeals,

Seventh Circuit.

Submitted Jan. 17, 1983.

Decided Jan. 28, 1983.

Jerold S. Solovy, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Earl Kaplan, Dept. of Justice, Crim. Div., Washington, D.C., for defendant-appellee.

Before CUMMINGS, Chief Judge, and PELL and BAUER, Circuit Judges.

CUMMINGS, Chief Judge.

Much has recently been said and written about the proliferation of frivolous lawsuits filed by state and federal prisoners. Today, in considering the instant appeal, we must also address a request by the Government to curb the litigiousness of a particularly notorious contributor to the backlog of this and other circuits, Clovis Carl Green, Jr.

I.

Before we review the procedural history of the immediate case, it is helpful to note the following background information. Clovis Carl Green, Jr., is the founder and sole "reverend" of the Human Awareness Universal Life Church, formerly known as the Church of the New Song of Universal Life. Green has also spent the past several years in various penitentiaries located throughout the United States. As the leader of the church, Green is the only individual recognized to speak on behalf of his "congregation." Among the tenets of the church are that inmate-members should grow beards and long hair (even if by doing so it conflicts with prison regulations) and have regular conjugal visits in prison. The church advocates Saturday religious services which are to be attended by all church members, as well as by family and friends. The church in addition seeks to distribute its own newspaper entitled Truth to fellow inmates. Legal recognition of the church, by the Internal Revenue Service or other official entities, has apparently yet to be received. See In re Green, 215 U.S.App.D.C. 393, 669 F.2d 779, 781 n. 5 (1981). See also Green v. White, 589 F.2d 378 (8th Cir.), certiorari denied, 441 U.S. 925, 99 S.Ct. 2038, 60 L.Ed.2d 400 (1979) (Green unsuccessfully sought declaration that his church is a legitimate religion).

As the sole spokesman for the "church," Green has initiated countless lawsuits in recent years. ¹ In fact, Green has been described by one court as the "most prolific prisoner litigant in recorded history." See In re Green, supra, 669 F.2d at 781. Green's causes of action have been well chronicled; one recent opinion lists Green's filings as numbering somewhere between 600 and 700 complaints in federal and state courts. Id. ² The majority of Green's voluminous litigation has revolved around the church and its activities, but Green has also brought suits over a variety of other matters, including disciplinary actions against him by prison officials, transfers to other institutions, and various conditions of confinement. See Green v. Arnold, 512 F.Supp. 650, 651 (W.D.Texas 1981). In response to Green's attack on the judicial system, three circuit courts and one district court have taken the extraordinary steps of entering injunctions to halt Green's blatant abuse of the legal system. See In re Green, supra; Green v. Carlson, 649 F.2d 285 (5th Cir.1981); Green v. White, 616 F.2d 1054 (8th Cir.1980); Green v. Wyrick, 428 F.Supp. 732 (W.D.Mo.1976). ³

In 1980, Green began to apply his indefatigable skills to the courts of this circuit. Here, in our Court alone, Green has recently brought 13 appeals, in addition to the one presented here, and has had twelve of them dismissed mostly for being either vexatious, malicious, frivolous, or not in good faith. ⁴

Green commenced the present action in August 1980. In his complaint Green presented the allegations that prison officials had violated his freedom of religion and that his right of access to the courts had been impeded. Green sought leave to proceed in forma pauperis under 28 U.S.C. Sec. 1915. On September 19, 1980, the district court denied Green leave to proceed in forma pauperis and dismissed Green's complaint on alternative grounds. First construing Green's complaint as against the prison officials in their official capacity, the district court ruled that Green had failed to exhaust his administrative remedies as required by 28 U.S.C. Sec. 2675. Alternatively, construing the action as a suit against the officers in their unofficial capacity, the district court found that Green had failed to satisfy the $10,000 jurisdictional amount required by 28 U.S.C. Sec. 1331. Judgment was entered on September 26, 1980.

On October 6, 1980, Green moved for a reconsideration of judgment and in the alternative for leave to appeal in forma pauperis. No notice of appeal was filed at this time. The district court denied this motion on October 13, 1980.

In July 1981, Green moved for reconsideration of the district court's order of October 13, 1980, leave to appeal in forma pauperis, permission to submit additional arguments, and an "Order to Show Cause." ⁵ The district court denied Green's motion on September 22, 1981.

Finally, three months later, and well over a year after the district court's original judgment, Green filed a "notice of appeal and a motion to appeal in forma pauperis out of time." This motion was filed with the district court on December 23, 1981. An identical motion was filed with this Court on March 10, 1982. In his motion and notice of appeal, Green attempted to explain his failure to timely appeal the district court's order of September 26, 1980 as due to "the constant lying by the clerk of the court." ⁶ Green also accused the district court of "intentionally" lying in its orders and rulings. On March 10, 1982, the district court denied the defendant's motion for leave to appeal and leave to appeal in forma pauperis, saying:

The grounds offered for leave to file out of time, alleged untruths by this Court and its Clerk, are scandalous and impertinent allegations suitable for a motion to strike. In fact, as the file history reflects, this Court and its Clerk have complied with most of plaintiff's requests though some were clearly outrageous, and would have required multitudes of copying at the public expense ... The Court has always truthfully responded to plaintiff. The fact is that plaintiff simply failed to timely perfect his appeal. There is no basis in law or in fact for permitting him to file out of time.

The district court went on to suggest that it and the Court of Appeals should consider some type of injunction prohibiting Green from further harassing the courts of this circuit.

In response to Green's appeal, this Court directed the respondent Warden to submit a memorandum concerning the "appropriateness of this Court entering an order enjoining Clovis Carl Green from filing any materials in any appeal in this Court" and also provided that the "Government may suggest that an injunction's scope be limited to issues involving the Human Awareness Universal Life Church." ⁷ The Warden has accordingly proposed that we enter the following injunction:

Clovis Carl Green, Jr. may not file any civil action in the district court of this Circuit or any petition or appeal with this Court without first obtaining leave of the appropriate Court. In seeking leave of Court, Mr. Green must certify that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court. Upon failure to certify or upon false certification, petitioner may be found in contempt of court and punished accordingly.

In response, Green's court-appointed counsel submitted memoranda arguing that (1) this Court lacks subject matter jurisdiction to issue an original injunction; (2) an appellate court may not make the factual findings necessary to support the proposed injunction; and (3) the proposed injunction denies Green his constitutionally protected right of access to the courts.

II.

The first issue we shall address is Green's argument that this Court does not have the authority to issue the requested injunction as an original matter. Green argues that entry of the requested injunction, without having the imprimatur of a district court upon it, would not be consistent with this Court's appellate function. The Government responds that this Court has the authority to issue the injunction pursuant to the All Writs Act, 28 U.S.C. Sec. 1651(a), as an action in furtherance of our supervisory authority over the courts of this circuit.

Section 1651(a) of Title 28, otherwise known as the All Writs Act, states that:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

28 U.S.C. Sec. 1651(a). As this Court has recently noted, the All Writs Act confers a broad grant of authority to federal courts. See United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir.1982). The purpose behind the Act is to assure the various federal courts that they may have the power to issue any appropriate writs and orders which are auxiliary in nature in order to aid their respective jurisdiction. In re Previn, 204 F.2d 417, 418 (1st Cir.1953). The intent of the Act is to effectuate established jurisdiction, not to enlarge it. See Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir.1979); State Committee to Stop Sanguine v. Laird, 317 F.Supp. 664, 665 (W.D.Wis.1970). The exercise of this power is appropriate both in cases where jurisdiction of the Court of Appeals has already attached as well as cases where the Court of Appeals has merely potential appellate jurisdiction. In re Previn, supra, 204 F.2d at 418. Indeed, while the Act does not confer upon a court the authority to act as a roving tribunal ferreting out error wherever it thinks it exists, the All Writs Act does give a court the inherent power "to effectuate what seems ... to be the manifest ends of...