Gorokhovsky v. State Pub. Def. Office, Case No. 20-cv-1098-pp
| Decision Date | 05 January 2021 |
| Docket Number | Case No. 20-cv-1098-pp |
| Parties | VLADIMIR M. GOROKHOVSKY, Plaintiff, v. STATE PUBLIC DEFENDER OFFICE, and KATLYN PAKES, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO USE PACER.GOV FOR FURTHER PLAINTIFF'S FILLING IN THE MATTER SUB JUDICE (DKT. NO. 2), DENYING PLAINTIFF'S MOTION FOR ORDER AND REQUEST FOR SUBSTITUTION OF JUDGE PEPPER (DKT. NO. 5), GRANTING PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND MOTION FOR LEAVE TO FILE LATE MEMROANDUM OF LAW AND FACT IN OPPOSITION TO DEFENDANT'S MOTION TO DISMIS (DKT. NO. 10), GRANTING PLAINTIFF'S VERIFIED MOTION FOR LEAVE TO ALLOW LATE FILLING OF PLAINTIFF'S MEMORANDUM OF LAW AND FACT IN OPPOSITION TO DEFENDANT'S MOTION TO DISMIS (DKT. NO. 13) GRANTING DEFENDANTS' MOTION TO DISMISS (DKT. NO. 8) AND DISMISSING CASE
On July 18, 2020, the plaintiff filed a complaint alleging that the Wisconsin State Public Defender's Office and Attorney Kathleen Pakes, Director of the Assigned Counsel Division of the SPD, violated his civil rights under 42 U.S.C. §1983. Dkt. No. 1. The complaint alleges that the defendants "unjustifiably and pretextually refused to certify" him. Id. at ¶12. The plaintiffalleges that the defendants returned his paperwork because it was not properly submitted, which the plaintiff believes was pretext. Id. at ¶14.
Two days after filing the complaint, the plaintiff filed a motion for an order allowing him to use his e-filing privileges via his PACER account for filing documents in this case. Dkt. No. 2. He also filed a motion "for order of substitution" for Judge Pamela Pepper. Dkt. No. 5.
The defendants have filed a motion to dismiss the case. Dkt. No. 8. The court received the plaintiff's opposition brief on September 9, 2020—forty days after the defendants filed their motion. Dkt. No. 10. Five days later, the court received the plaintiff's motion for leave to allow "late filling"2 of his opposition memorandum. Dkt. No. 13.
The court will grant the plaintiff's motion for leave to e-file, deny the plaintiff's motion for "substitution," grant the plaintiff's motions for leave to file opposition briefs and grant the defendants' motion to dismiss.
The plaintiff filed the complaint on July 18, 2020. The plaintiff is a lawyer; he says he has a PACER (an electronic filing) account with the court and that he "is very experienced in proper usage of it." Dkt. No. 2 at ¶¶2-3. He asserts that on June 20, 2020—a month before he filed the complaint—he received a call from the clerk of court advising him that he could not use hisPACER account for electronic filings. Id. at ¶4. He asserts that the "Local Rules of this Court do not forbit [sic] pro se plaintiffs who is also an attorneys from using their PACER.GOV account from their electronic pro se filling with this Court." Id. at ¶5. He asks the court to "issue an order allowing his to use his e-filling privileges with PACER.GOV for further electronic fillings with this Court in the matter sub judice . . . ." Id. at page 2.
Section I(A)(1) of the United States District Court for the Eastern District of Wisconsin Electronic Case Filing Policies and Procedures Manual (Rev. April 10, 2019) states that "[p]arties proceeding pro se cannot file electronically unless authorized by the court." The procedures do not make a distinction between pro se parties who are lawyers and pro se parties who are not lawyers; it simply states that a party representing himself or herself cannot file electronically unless authorized to do so by the court.
Since 2002, the plaintiff has filed five pro se cases in this district, including this one. Gorokhovsky v. Bank One, et al., Case No. 05-cv-91-CNC; Gorokhovsky v. MBNA America Bank NA, et al., Case No. 06-cv-1120-LA; Gorokhovsky v. Jacob Law Group PLLC, Case No. 12-cv-1188-LA; Gorokhovsky, et al. v. Stefantsova, Case No. 19-cv-453-JPS; Gorokhovsky v. State Public Defender Office, et al., Case No. 20-cv-1098-PP. While the court was unable to find any record of anyone calling the plaintiff to tell him that he could not e-file in this case, it could be that at some point during the pendency of one of the plaintiff's pro se cases, someone from the clerk's office told him he could not e-file without a court order.
But despite the plaintiff's assertion that someone from the clerk's office told him he couldn't, the plaintiff has been e-filing in this case. In fact, the plaintiff electronically filed two objections to magistrate authority to decide the case (although he failed to use the court's required form) six days after he claimed that he was told he could not use his e-filing account. Dkt. No. 3 at 2.
Because the plaintiff is an attorney and has an e-filing account that he uses when he represents clients other than himself, and because the plaintiff has been e-filing anyway, the court will grant the motion.
Two weeks after filing his complaint, the plaintiff filed a one-sentence motion asking "for an Order of substitution of Judge Pamela Pepper as assigned on this case on 07-27-2020." Dkt. No. 5. The plaintiff did not file a memorandum in support of the motion and did not cite any rule, authority or facts in support of the motion.
The court suspects that the plaintiff is accustomed to the Wisconsin state-court practice of "substitution." Under Wis. Stat. §801.58(1), any party in a civil case may file a written request with the clerk of court asking for substitution of a new judge for the judge assigned to the case. Wis. Stat. §801.58(2) states that if the request was timely and in proper form, the judge originally assigned to the case "has no further jurisdiction and the clerk shall request the assignment of another judge . . . ." Effectively, a party may have one substitution per case, no questions asked, if the written request was timely and properly filed. Wis. Stat. §801.58(3).
This is federal court. The Eastern District of Wisconsin has no substitution procedure. In this federal court, "[e]very motion must state the statute or rule pursuant to which it is made," and except for expedited, non-dispositive motions, must be accompanied by a supporting memorandum or a certificate stating that no memorandum or supporting papers will be filed. Civil Local Rule 7(a) (E.D. Wis.). In federal court, a party is stuck with the judge assigned to the case unless there is a basis for that judge to recuse herself. If a party files a "timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party," the judge must recuse herself. 28 U.S.C. §144. A party may also seek a federal judge's disqualification under 28 U.S.C. §455, if the party can demonstrate that the judge has a bias, prejudice or conflict of the type identified in that statute.
The plaintiff's motion does not comply with Civil L.R. 7 and has not identified any grounds for recusal or disqualification. The court will deny the motion.
III. Defendants' Motion to Dismiss (Dkt. No. 8), Plaintiff's Opposition to Defendant's Motion to Dismiss and Motion for Leave to File Late Memorandum of Law and Fact in Opposition to defendant's Motion to Dismiss (Dkt. No. 10) and Plaintiff's Verified Motion for Leave to Allow Late Filling of Plaintiff's Memorandum of Law and Fact in Opposition to Defendant's Motion to Dismiss (Dkt. No. 13)
On July 30, 2020, the defendants filed a motion to dismiss, arguing Eleventh Amendment immunity, abstention, failure to state a claim upon which relief can be granted, qualified immunity, the Rooker-Feldman doctrine, claim preclusion or issue preclusion, state sovereign immunity, failure to serve a written notice of claim under Wis. Stat. §893.82(3) and public officer immunity. Dkt. No. 8. The defendants attached a certificate of service indicating that Kristin Cueller, the defendants' legal associate, mailed the documents by first-class mail to "Vladimir M. Gorokhovsky, Gorokhovsky Law Office LLC, 10919 N Hedgewood Ln, Mequon, WI 53092-4907." Dkt. No. 8-1. This is the address on the signature page of the plaintiff's complaint (dkt. no. 1 at 10), and on each of the plaintiff's pleadings (although on some pleadings, he adds "Suite 2A" after the street address, e.g.
, dkt. no. 2 at 2).
On September 9, 2020—forty days after the defendants filed their motion to dismiss, and nineteen days after the response deadline set by Civil L.R. 7(b)—the plaintiff electronically filed a document titled "Plaintiff's Opposition to Defendant's Motion to Dismiss and Motion for Leave to File Late Memorandum of Law and Fact in Opposition to Defendant's Motion to Dismis [sic]." Dkt. No. 10. The four-page motion first alleges that the plaintiff is "vigorously opposing and objecting to" the motion to dismiss. Id. at ¶2. The motion asserts that the motion "was not mailed or forwarded to the Plaintiff by defense counsel, and the Plaintiff was not provided with a notice of this motion and opportunity to respond and be heard." Id. at ¶3. The plaintiff states that he did not receivenotification of the motion via PACER on the date the motion was filed "because he was deprived from usage of PACER e-filing privileges by a clerk of this Court." Id. at ¶4. He claims that he did not receive a copy of the motion to dismiss until September 9, 2020, when he checked PACER. Id. at ¶5.
As to the substance of the motion to dismiss, the plaintiff asserts that "the defendant's argument regarding applicability of Rocker ...
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