Verogna v. Johnstone
| Citation | 583 F.Supp.3d 331 |
| Decision Date | 27 January 2022 |
| Docket Number | Civil No. 21-cv-1047-LM |
| Parties | Sensa VEROGNA v. Andrea JOHNSTONE, et al. |
| Court | U.S. District Court — District of New Hampshire |
Sensa Verogna, Pro Se.
Dan L. Bagatell, Perkins Coie LLP, Hanover, NH, for Julie E. Schwartz.
Linda M. Smith, Morrison Mahoney LLP, Manchester, NH, for Jonathan M. Eck.
Pro se plaintiff "Sensa Verogna"1 brings this lawsuit against District Court Judge Steven McAuliffe, Magistrate Judge Andrea Johnstone, Attorney Jonathan Eck, and Attorney Julie Schwartz. Verogna alleges that the defendants violated his constitutional rights. The matter is before the court on preliminary review under Local Rule 4.3(d)(3). Additionally before the court are Verogna's motion to file an oversized memorandum (doc. no. 8), his motion to recuse (doc. no. 9), and his motion to allow alternative service (doc. no. 11).
The court grants Verogna's motion for leave to file an oversized memorandum but denies his motion to recuse. The court dismisses Verogna's complaint for lack of jurisdiction and, alternatively, because it is frivolous. The motion to allow alternative service is denied as moot.
The court construes pleadings by pro se litigants liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Because the plaintiff is pro se and has paid the filing fee, the court undertakes a preliminary review to determine whether it has subject-matter jurisdiction, and, in any event, the court must raise questions about its jurisdiction on its own motion. See LR 4.3(d)(3) (); Fort Bend Cnty., Tx. v. Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1848-49, 204 L.Ed.2d 116 (2019) ().2
"Courts must move cautiously when dismissing a complaint sua sponte." See Clorox Co. P.R. v. Proctor & Gamble Com. Co., 228 F.3d 24, 30 (1st Cir. 2000). Generally, the court must give the plaintiff notice and an opportunity to address the issue with the complaint by amending it. See id. There are, however, "limited exceptions to the general rule barring dismissal without notice," namely, where the claims are "frivolous" or contain defects that cannot be cured by amendment. Id. Frivolity can be generally described as lacking an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (); Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (); see also Martinez v. United States, 838 Fed. Appx. 662, 664 (3d Cir. 2020) (). A claim lacks an arguable basis in law if it is based on an "indisputably meritless legal theory," Neitzke, 490 U.S. at 325, 109 S.Ct. 1827, and it lacks an arguable basis in fact if it describes "fantastic or delusional scenarios." Id. at 327-28, 109 S.Ct. 1827.
Although the threshold is more demanding for finding frivolity as opposed to finding that a complaint merely fails to state a claim under Federal Rule of Civil Procedure 12(b)(6), the court nonetheless examines the complaint through the same lens. In other words, the court accepts all well-pleaded facts as true and draws all reasonable inferences in the complainant's favor. Hamann v. Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). But the court disregards conclusory allegations that simply parrot the applicable legal standard. Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013).
Verogna's claims stem from a separate case, Verogna v. Twitter, 20-536-SM, which was assigned to Judge McAuliffe and referred in parts to Judge Johnstone.
In that case, Verogna, who sought to proceed anonymously as he does here, alleged that the defendant Twitter, Inc., suspended and then banned Verogna's account after Verogna said (1) that, if he had "special powers," he would "[b]itch slap that commie Bitch who is yelling like a 3-year old!!!" and (2) "Ya, let's all get cutesy with a fckn #Traitor who should be hung if found guilty!!" 20-536-SM, ECF doc. no. 1 ¶ 18. Verogna alleged that Twitter stopped letting him use its service because he is white or portrayed himself to be a white person. In terms of legal claims, Verogna alleged that Twitter breached its terms of service contract and violated his First Amendment rights to speech and assembly. Twitter was represented by Attorney Eck, and, on August 19, 2020, Judge Johnstone granted a motion to allow Attorney Schwartz to appear for Twitter pro hac vice. Ultimately, Judge McAuliffe dismissed the case after Verogna failed to comply with an order requiring him to pursue his suit against Twitter (Case No. 20-536) in his own name.3 Verogna appealed the orders in Case No. 20-536, but the First Circuit dismissed the appeal for failure to comply with an order to pay a filing fee.
In this case, Verogna alleges that Judge Johnstone and Judge McAuliffe erred by allowing Attorneys Eck and Schwartz to respond on Twitter's behalf to Verogna's lawsuit, thereby depriving Verogna of various constitutional rights, such as his rights to free speech under the First Amendment, due process under the Fifth and Fourteenth Amendments, and a jury trial under the Seventh Amendment. Verogna alleges that Attorney Eck has ambitions to become a judge himself and holds various leadership positions in New Hampshire state bar associations. Verogna asserts that the matter is a conspiracy because, given Attorney Eck's ambitions, Judges McAuliffe and Johnstone, and Attorneys Eck and Swartz must have engaged in improper ex parte communications about the case. Verogna alleges that Judges McAuliffe and Johnstone were biased in favor of Twitter and Attorneys Eck and Schwartz. Verogna also disagrees with the court's decision in 20-536-SM that prohibited Verogna from pursuing his lawsuit anonymously.
Verogna, however, concedes that "PLAINTIFF could smell something wasn't right, and noticed the COURT of PLAINTIFF'S constitutional rights being violated, but was not able to identify or uncover any other evidence to further support any claims of bias or underlying unfair treatment at this time." Doc. no. 1 ¶ 142. Indeed, most of Verogna's complaint consists of conclusory declarations that the defendants acted unlawfully and conspired with one another for economic and political gain. The complaint repetitively makes legal conclusions mirroring, for example, the statutory language of 42 U.S.C. §§ 1985 and 1986.
Liberally construed, Verogna's complaint contains several putative claims, which can be generally described as the following: (1) conspiracy to unlawfully intimidate a witness or party to a case in federal court, 42 U.S.C. § 1985(2) ; (2) conspiracy to deprive Verogna of equal protection of the laws, 42 U.S.C. § 1985(3) ; (3) violations of 42 U.S.C. § 1986 ; (4) violations of constitutional rights (First, Fifth, Seventh, and Fourteenth Amendments) under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), or 42 U.S.C. § 1983 ; and (5) a request for attorney fees and punitive damages. Specifically, Verogna requests $250,000,000 in damages as well as an injunction prohibiting future constitutional violations by the defendants. None of the defendants has answered or responded to the complaint; thus, this order is issued on the court's own motion.
Verogna's claims in this case are premised on disagreements with legal rulings by other judges of this court. Specifically, Verogna takes issue with findings by Judge McAuliffe or Judge Johnstone on motions by Attorney Eck or Attorney Schwartz to appear in defense of the lawsuit Verogna filed against Twitter. Verogna also appears to take issue with various other rulings on motions filed by either himself or by Twitter in Case No. 20-536. The court lacks subject-matter jurisdiction to hear Verogna's dispute, and, even if it did have jurisdiction, Verogna's lawsuit lacks an arguable basis under the law.
Relying on 28 U.S.C. § 455 and the due process clauses of the Fifth and Fourteenth Amendments, Verogna contends that I must recuse myself—and all other judges in this district—from this case. He argues that because I was the chief judge of the court while Case No. 20-536 was ongoing and because the suit names two of my colleagues on this court as defendants, my impartiality might reasonably be questioned.
Verogna is incorrect. I need not recuse myself because this lawsuit is patently frivolous such that no rational person could imagine any bias underlying this dismissal order. See Swan v. Barbadoro, 520 F.3d 24, 26 (1st Cir. 2008) (); Barnett v. Barbadoro, No. 9-cv-281-SM, 2009 WL 2878393, at *1 (D.N.H. Sept. 2, 2009) (); Loudenslager v. Laplante, No. 19-cv-865-SM, 2019 WL 4168863, at *1 n.1 (D.N.H. Sept. 3, 2019) (same).
As discussed in more detail below, the court lacks jurisdiction over the case and, in any event, the claims against Judges McAuliffe and Johnstone must be dismissed given their entitlement to judicial immunity. The reasons for finding no jurisdiction and applying judicial immunity in this case are well established by precedent, which leaves...
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