Moncier v. Jones

Decision Date10 April 2013
Docket NumberCase No. 3:12–0145.
Citation939 F.Supp.2d 854
PartiesHerbert S. MONCIER, Plaintiff, v. Nancy S. JONES and other unknown officers of the State of Tennessee, Defendants.
CourtU.S. District Court — Middle District of Tennessee

OPINION TEXT STARTS HERE

Herbert S. Moncier, Law Offices of Herbert S. Moncier, Knoxville, TN, pro se.

Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM

WILLIAM J. HAYNES, JR., Chief Judge.

Plaintiff, Herbert S. Moncier, filed this action under 42 U.S.C. § 1983 against the Defendants: State of Tennessee and Nancy S. Jones, chief disciplinary counsel of the Board of Professional Responsibility. Plaintiff's claims arise out of his disciplinary proceeding before a hearing panel of the Board of Professional Responsibility. On June 1, 2011, the Tennessee Supreme Court issued an Order of Enforcement affirming the judgment of the hearing panel finding that Plaintiff had violated certain of the Tennessee Rules of Professional Conduct and imposing an eleven-month, twenty-nine day suspension from the practice of law, with all but forty-five days of the suspension probated.

Plaintiff's claims are that during his disciplinary proceedings, Defendant Jones violated his rights under the First, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks two million dollars ($2,000,000) in compensatory and punitive damages. Although named as a party, the Defendant State of Tennessee is not alleged to have committed any acts. Neither Defendant Jones nor Defendant State of Tennessee was served until March 28, 2012. (Docket Entry No. 9, 10).

On April 17, 2012, Defendant Jones filed her motion to dismiss for lack of subject matter jurisdiction and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and (6). (Docket Entry No. 5). On May 7, 2012, Plaintiff requested an extension of time to respond to the pending motion to dismiss, citing that as a pro se litigant, he was not registered with the Court's electronic filing system and had not timely received Defendant Jones' motion to dismiss. (Docket Entry No. 16). This Court granted that motion and gave Plaintiff until May 31, 2012 to file his response. (Docket Entry No. 17). At that time, Plaintiff also filed a motion seeking pro se CM/ECF access, (Docket Entry No. 15), that the Court granted for this action only. (Docket Entry No. 18). Plaintiff subsequently registered as a Filing User of the Court's CM/ECF system.

In response to Defendant Jones' motion to dismiss, Plaintiff filed an amended complaint with fifteen claims for damages against Defendant Jones in her individual capacity, but also sought injunctive relief against Defendant Jones on behalf of Plaintiff and all other licensed attorneys in Tennessee who may be subject to disciplinary proceedings. (Docket Entry No. 22). Jones filed a motion to dismiss this amended complaint on August 21, 2012. (Docket Entry No. 24). Plaintiff did not file a response to that motion to dismiss nor take any further action to prosecute this action.

On December 12, 2012, this Court entered an Order granting Defendant Jones' motion to dismiss the amended complaint on grounds of absolute immunity. (Docket Entry No. 27). The Court also concluded that the Defendant State of Tennessee was not a person suable under 42 U.S.C. § 1983.

Before the Court are the following motions: (1) Plaintiff's motion to alter or amend or for additional findings under Fed.R.Civ.P. 52 and 59 (Docket Entry No. 29); (2) Plaintiff's motion for relief from final judgment under Fed.R.Civ.P. 60(b) (Docket Entry No. 30); and (3) Plaintiff's motion to file a second amended complaint and to supplement under Fed.R.Civ.P. 15 (Docket Entry No. 31). Plaintiff also filed his response to Jones' motion to dismiss his amended complaint. (Docket Entry No. 32).

A. Motion For Additional Findings to Alter or Amend

Plaintiff's first motions are for additional findings under Fed.R.Civ.P. 52(b) and to alter or amend under Fed.R.Civ.P. 59. Fed.R.Civ.P. 52(a) provides that in “an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately.” Yet, the court is not required to state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.” Fed.R.Civ.P. 52(a)(3). Here, the Court's ruling was on Defendant Jones' motion to dismiss under Rule 12(b) and by the plain language of Rule 52(a)(3), findings were not required. See also Somers Coal Co. v. United States, 2 F.R.D. 532 (N.D.Ohio 1942) (decision on the motions and pleadings, are not “tried upon the facts”).

For relief on his motion to alter or amend, Plaintiff must show: (1) an intervening change in controlling law; (2) new evidence previously unavailable; or (3) a clear error of law to prevent a manifest injustice. Helton v. ACS Group, 964 F.Supp. 1175, 1182 (E.D.Tenn.1997). Such relief is extraordinary and is granted sparingly to promote finality, Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (D.C.Fla.1994) and cannot be employed to relitigate issues previously decided. Keweenaw Bay Indian Community v. Michigan, 784 F.Supp. 418 (W.D.Mich.1991), aff'd11 F.3d 1341 (6th Cir.1993).

Plaintiff does not specify any of the three grounds, but his motion suggests a clear error of law or manifest injustice. In his motion, Plaintiff argues that because “State was sued for declaratory and prospective injunctive relief that is not barred by the Eleventh Amendment.” Yet, Plaintiff's amended complaint sought injunctive relief only against Defendant Jones. (See Docket Entry No. 22, Amended Complaint at ¶¶ 41, 46, 66, 78, 79, 100, 107, 116, 125, 139, 147, 157, 164, 170, 178, 184, and 197).

Par. 41 Plaintiff sues Defendant Jones pursuant to 42 U.S.C. § 1983 for prospective injunctive relief for himself and all Tennessee attorneys that Defendant Jones train Tennessee hearing panels to provide Tennessee attorneys U.S. Const. Fourteenth Amendment Due Process quasi-criminal constitutional protections.

Par. 46 Pursuant to 42 U.S.C. § 1988 Plaintiffs moves for a prospective injunction against Defendant Jones from in any manner enforcing any result of Plaintiff's attorney disciplinary proceeding, including but not limited to payment of attorney fees and costs, until such time as Plaintiff is provided a U.S. Const. Fourteenth Amendment constitutionally compliant disciplinary proceeding wherein he is entitled to present his federal constitutional claims.

Par. 66 Plaintiff pursuant to 42 U.S.C. § 1988 sues Defendant Jones for a prospective injunction prohibiting her from instituting or prosecuting attorney disciplinary proceedings against Plaintiff, or any attorney in the State of Tennessee, based on Plaintiff or any attorney exercising First Amendment Petition Clause protected activities.

Par. 78 Plaintiff brings this action for himself and all attorneys in Tennessee pursuant to 28 U.S.C. § 2202 and 42 U.S.C. § 1988 for a prospective injunction relief against Defendant Jones prohibiting her from enforcing in any manner, including collection of attorneys fees or cost, the hearing panel judgment in Plaintiff's case that did not afford Plaintiff a quasi-criminal attorney disciplinary proceeding and Sixth and Fourteenth Amendment protections specified herein.

Par. 79 Plaintiff brings this action for himself and all attorneys in Tennessee pursuant to 28 U.S.C. § 2202 and 42 U.S.C. § 1988 for a prospective injunction relief against Defendant Jones requiring that she train Tennessee hearing panels to provide Plaintiff and Tennessee attorneys a quasi-criminal attorney disciplinary proceeding and Sixth and Fourteenth Amendment protections specified herein.

Par. 100 Plaintiff sues Defendant Jones for himself and all attorneys in Tennessee pursuant to 42 U.S.C. § 1988 for a prospective injunction requiring that she comply with the U.S. Const. Fourteenth Amendment Due Process Clause requirement to provide Plaintiff and all attorneys in Tennessee pre-hearing notice of charges of misconduct and that (2) she train Tennessee hearing panels to apply the Fourteenth Amendment Due Process Clause notice protections in Tennessee attorney disciplinary proceedings.

Par. 107 Plaintiff sues Defendant Jones for himself and for all attorneys in Tennessee pursuant to 42 U.S.C. § 1988 for a prospective injunction requiring Defendant Jones to train Tennessee hearing panels to provide Tennessee attorneys their Sixth and Fourteenth Amendment right to compulsory process.

Par. 116 Plaintiff sues Defendant Jones for himself and for all attorneys in Tennessee pursuant to 42 U.S.C. § 1988 for a prospective injunction requiring Defendant Jones to train Tennessee hearing panels to provide Tennessee attorneys their Sixth and Fourteenth Amendment right to cross-examine witnesses and for hearing panel make decisions under Tenn. R. Evid. 103 rulings as to any objections presented to any questions on cross-examination.

Par. 125 Plaintiff sues Defendant Jones for himself and for all attorneys in Tennessee pursuant to 42 U.S.C. § 1988 for a prospective injunction requiring Defendant Jones to train Tennessee hearing panels to provide Tennessee attorneys their Sixth and Fourteenth Amendment right to confront and cross-examine witnesses and to exclude out of hearing testimonial declarations.

Par. 139 Plaintiff sues Defendant Jones for himself and all Tennessee attorneys pursuant to 42 U.S.C. § 1988 for a prospective injunction requiring Defendant Jones to comply with the Sixth and Fourteenth Amendment by not interfering with the impartiality and independence of hearing panels.

Par. 147 Plaintiff sues Defendant Jones for himself and all other Tennessee attorneys pursuant to 42 U.S.C. § 1988 for a prospective injunction prohibiting Defendant Jones from instituting disciplinary investigations during disciplinary hearing against attorneys...

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    ...docket and keep apprised of developments within his active cases" and did not "constitut[e] excusable neglect"); Moncier v. Jones, 939 F. Supp. 2d 854, 861-62 (M.D. Tenn. 2013) (finding that "Plaintiff's failure to respond to [a] motion to dismiss as a result of his computer difficulties d[......
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