Demos v. Kincheloe

• Decision Date: 07 December 1982
• Docket Number: No. C-82-891-RJM.,C-82-891-RJM.
• Court: U.S. District Court — District of Washington
• Parties: John Robert DEMOS, Petitioner, v. KINCHELOE; Attorney General of State of Washington; Yakima County Superior Court, Respondents.

563 F. Supp. 30

John Robert DEMOS, Petitioner, v. KINCHELOE; Attorney General of State of Washington; Yakima County Superior Court, Respondents.

No. C-82-891-RJM.

United States District Court, E.D. Washington.

December 7, 1982.

John Robert Demos, pro se.

Kenneth Eikenberry, Atty. Gen. of the State of Wash., Olympia, Wash., for respondents.

ORDER

ROBERT J. McNICHOLS, Chief Judge.

Between November 8th and December 1st of this year, Mr. Demos lodged seventeen § 1983 complaints and three habeas corpus petitions thereby bringing his career total in this district up to 184 separate actions in just over three years' time. Among the claims the court is now being asked to expend its resources on are such colorful and innovative contentions as the following:

—Declaratory judgment that all current Washington State law is unconstitutional because no statutes enacted subsequent to the 1881 code have been ratified by Congress.

—Award of damages because prison guards have refused to address plaintiff by his Islamic name.

—Guards are misappropriating institutional property.

—Prison employee handling food failed to wear gloves or proper headgear.

—Writ of mandate should issue to require Congress to redraft language in the Declaration of Independence.

It appearing that plaintiff/petitioner lacks sufficient funds to prosecute these actions, it is hereby

ORDERED that the Clerk shall file each complaint and each petition under its own caption without payment of a filing fee.

It appearing that each and every complaint and petition is frivolous, malicious, repetitive, de minimis, wholly insubstantial, or insufficient to invest the court with subject matter jurisdiction, and that none is amenable to cure through amendment, it is hereby ORDERED that each action is DISMISSED with prejudice.¹

So long as Mr. Demos confined his submissions to a leisurely pace of two or so per week, his contributions to prisoner-related judicature were tolerable, and indeed were welcomed by the staff as invigorating respites from an otherwise workaday schedule. Now, however, the stride has quickened. Unlike vitamins and apples, the effect of digesting Demos' pleadings on a schedule of one-a-day, every-day, is somewhat less than salubrious. "No one, rich or poor, is entitled to abuse the judicial process." Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir.1975). If that axiom is to have any meaning at all, then it is high time to develop some means of bringing Demos' excesses in this direction under some semblance of control.

Among the intriguing legal problems posited in the past are the following, culled from a memorandum entered April 29, 1981:²

—The U.S. Nuclear Regulatory Commission is endangering the lives of every citizen in the state of Washington because of the nuclear energy plants at Hanford, Washington.

—As a member of the Chocktaw Indian Tribe, Mr. Demos is entitled to $15 million dollars from the government as reimbursement for treaties that were broken in the 1800's.

—The Director of State Corrections unlawfully discriminated against Mr. Demos on the basis of sex by not honoring his request to be transferred to Purdy Correctional Center, an all-women institution.

—The United States Department of Treasury has violated Mr. Demos' civil rights by discontinuing the practice of backing treasury notes by silver.

Not content to merely present absurd propositions, Mr. Demos also frequently engages in outright fabrication in the heat of his litigious zeal. See, e.g., C-79-74 through C-79-77 inclusive and C-79-399 (representation on motion to re-file that he had taken voluntary dismissal when in fact actions had been dismissed on the merits); C-82-660 (inadvertently submitted two contradictory renditions of the same event, one of which was necessarily false).

Nor has Demos confined his attentions to this court. Faced with an ever-spiraling drain on resources, Chief Justice Robert Brachtenbach of the Washington State Supreme Court felt constrained to enter an order specifically tailored to provide shelter from Demos' ceaseless barrage:

* * * * * *

A review of these two petitions, and a number of Mr. Demos' other petitions which have reached this court, establish beyond doubt that Mr. Demos is abusing the rules which are designed to permit post-conviction relief in appropriate cases. His petitions are often repetitive, in violation of RAP 16.4(d). Frequently they seek relief simply not available by personal restraint petition. Most of Mr. Demos' petitions have been insufficiently detailed to present claims which are comprehensible, let alone cognizable under established procedural and substantive law.

It is inappropriate that the justice system should continue to bear the costs associated with Mr. Demos' petition-filing whims. Accordingly,

IT IS HEREBY ORDERED:

(1) The petitions in cause Nos. 48286-1 and 48287-0 are hereby dismissed as frivolous.

(2) Any future petitions submitted to this court by Mr. Demos shall be reviewed by the Commissioner or Clerk prior to their acceptance for filing. The petitions shall be returned to Mr. Demos without filing unless the Commissioner or Clerk determines that any such petition on its face presents a sufficiently detailed, non-repetitive claim as to warrant calling for an answer from the proper respondent.

In re Demos, Nos. 48286-1, 48287-0, December 22, 1981.³

In light of Franklin, supra, it is apparent that this court does not share the luxury enjoyed by the State Supreme Court. Although the trial court in Franklin was overruled, Judge Burns' expression of frustration bears quotation:

For the reasons given, each of these actions should be dismissed. Mr. Franklin may have nothing better to do than to pepper this court with frivolous claims and paper work. This court, however, has better things to do than to canvass all of his complaints footnote omitted.

While Potter v. McCall, 433 F.2d 1087 (9th Cir.1970), requires that we be solicitous of pro se pleaders, nothing in Potter requires us to put up with this sort of nonsense, at taxpayers' expense and at the expense of others with claims or defenses of more apparent merit.

662 F.2d at 1340.

Franklin is an admirable statement of the concern which has traditionally been, and must continue to be, shown for the pro se litigant whose sense of anomie and impotence leaves him naked and vulnerable before the sometimes cruel whims of institutional bureaucracy. Somehow though, a way must be found to minimize the waste created by "this sort of nonsense," and yet at the same time remain well within both the letter and principle of this mandatory precedent.

Fortunately, Mr. Demos has a kindred spirit in the personage of the legendary Clovis Carl Green, a man who has filed no less than 600 separate actions.⁴ In re Green, 669 F.2d 779, 781 (D.C.Cir.1981). This is fortunate because Mr. Green's exploits have resulted in a legacy of guidance for dealing with the instant case.

A comprehensive treatment of the vexation which can be visited upon the judiciary by just one man bent on immobilizing the system is chronicled in Green v. Arnold, 512 F.Supp. 650 (W.D.Tex.1981).⁵ Comparing Mr. Green's proclivity for mischief with that of the mythological Loki, the court noted parenthetically that:

When the Teutonic Gods tired of Loki's troublemaking, they chained him to the rocks with a poisonous snake suspended above him, dripping poison on Loki.... That case arose prior to the Eighth Amendment.

Id. at 652 n. 11 (citation omitted).

As the toll upon judicial resources steadily mounted, courts began to fashion various prophylactic devices designed to effect a delicate balance between preservation of Mr. Green's right of access to the courts and their own self-preservation. See, e.g., Green v. Carlson, 649 F.2d 285 (5th Cir.), cert. denied, 454 U.S. 1087, 102 S.Ct. 646, 70 L.Ed.2d 623 (1981) (no further forma pauperis filings to be accepted unless based on physical harm); Green v. White, 616 F.2d 1054 (8th Cir.1980) (same); see also Green v. Wyrick, 428 F.Supp. 732 (W.D.Mo.1976) (enjoining Green against serving as "writ writer" for fellow inmates).

The impetus underlying the Carlson and White decisions is equally applicable here. Adoption of the remedy set forth in those cases, however, would likely be ill-advised for two reasons. First, if such an order were to be instituted, it should arise at the Circuit level and not from a district court. As broad as inherent judicial authority may be, I would be most reluctant to establish a rule which arguably would run across the grain of the spirit of Franklin, supra. Second, it would not work. Knowing Mr. Demos, his mode of operation would suffer only a momentary setback, and it would not take long before all of his complaints would allege some type of physical harm, and of course, all would be of a constitutional magnitude.

The better course would be to embrace the antidote recently discovered by the District of Columbia Circuit in In re Green, supra:

The singular nature of Clovis Carl Green's abuse of the judicial process may explain why there is so little guidance for district courts in dealing with this problem. Yet the accumulated frustration of the federal judiciary and the present need to deter Green and others who may follow him require us to enter an order that is both effective

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