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Maisano v. Arpaio

United States District Court, D. Arizona

September 5, 2014

Dale Maisano, Plaintiff,
v.
Sheriff Joseph M. Arpaio, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

I. Background

Plaintiff Dale Maisano, who is confined in the Arizona State Prison Complex-Florence in Florence, Arizona, has abused the legal process egregiously and often. He is subject to the three-strikes provision of the Prisoner Litigation Reform Act. In addition, in an August 11, 1992 Order and Restraining Order in Maisano v. Lewis, 92-CV-1026-PHX-SMM (MS), the Court concluded that "[i]t has become obvious from the nature of the Plaintiff's complaints and his lack of good faith that he simply desires to burden the judicial system with complaints, without regard for their merit or final disposition" and enjoined Plaintiff from filing any civil action in this or any other federal court without first obtaining leave of the court. See August 11, 1992 Order and Restraining Order in Maisano v. Lewis, CV 92-1026-PHX-SMM (MS).[1] When seeking to leave, Plaintiff was required to file an "Application Pursuant to Court Order Seeking Leave to File" accompanied by a copy of the 1992 Restraining Order, a list of all cases previously filed involving similar or related causes of action, and an affidavit certifying that: (1) the claim or claims he wishes to present are new and have never been raised and disposed of on the merits by any federal court, and (2) to the best of his knowledge, the claim or claims are not frivolous or taken in bad faith. Id.

Unfortunately, the 1992 Restraining Order proved to be insufficient to quell Plaintiff's assault on the federal courts. In a January 29, 2014 Order to Show Cause in Maisano v. Clark, 14-CV-0001-TUC-RCC (D. Ariz. 2014), Chief United States District Court Judge Raner C. Collins examined Plaintiff's voluminous filings and concluded, based on the number and nature of Plaintiff's filings, that Plaintiff's conduct was manifestly abusive and harassing and that the 1992 Restraining Order had proven insufficient to restrain Plaintiff's abuse of the courts. The Court concluded that more stringent measures were required, proposed an additional abusive-litigant injunction, and gave Plaintiff an opportunity to show cause in writing why such an injunction should not be imposed.

After Plaintiff responded to the Order to Show Cause, Chief Judge Collins issued a February 20, 2014 Injunction Order that enjoined Plaintiff from filing or lodging more than one in forma pauperis lawsuit per month in this Court, refused to accept any transfers pursuant to 28 U.S.C. § 1406(a) of cases filed by Plaintiff in other Districts, and reiterated and supplemented the requirements of the 1992 Restraining Order.[2] In addition, the 2014 Injunction Order enjoined Plaintiff from filing any civil action in this or any other federal court without first obtaining leave of the court. When seeking leave to file, Plaintiff is required to file a motion for leave to file that is captioned as an "Application Pursuant to Court Order Seeking Leave to File" and which contains a copy of the 2014 Injunction Order, a copy of the January 29, 2014 Order to Show Cause, a copy of the 1992 Restraining Order, a list of all cases previously filed involving similar or related causes of action, an affidavit certifying that the claim or claims presented are new and have never been raised and disposed of on the merits by any federal court, and a certification that, to the best of his knowledge, the claim or claims presented are not frivolous or taken in bad faith. Id. In addition, because Plaintiff has "three-strikes, " the 2014 Injunction Order required that any lawsuit Plaintiff filed or lodged "clearly, coherently, and credibly" alleges that Plaintiff is under imminent danger of serious physical injury. Id.

II. Plaintiff's Current Lawsuit

On June 25, 2014, Plaintiff filed a Complaint in the Superior Court of Maricopa County, Arizona, against the undersigned, eight other district court judges from the District of Arizona, four district court judges from the Middle District of Tennessee, three judges from the Ninth Circuit Court of Appeals, the State of Arizona, the Arizona Governor, the Arizona Attorney General, the Director of the Arizona Department of Corrections (ADOC), the Maricopa County Sheriff, ADOC Warden Moody and Deputy Warden Scott, an unknown ADOC sergeant, two unknown ADOC Correctional Officer IIs, nurse practitioner Rick Unger, Corizon Health Inc., Canteen/Trinity Group/Correctional Food Services Inc. (Canteen), and an unknown Canteen "whiteshirt."[3]

On August 22, 2014, Defendants Chris Moody and Travis Scott filed a Notice of Removal and removed the lawsuit to this Court. On September 3, 2014, Defendant Arpaio filed a Motion to Dismiss (Doc. 6).

A. Removal

A State court defendant may remove to federal court any civil action brought in the state court over which the federal district courts would have original jurisdiction. 28 U.S.C. § 1441(a). In his June 25 Complaint, Plaintiff alleges, among other things, violations of his federal constitutional rights, 42 U.S.C. § 1997e, 42 U.S.C. § 1985, the "Civil Rights Act of 1871, " and "RICO." This Court's jurisdiction extends to such claims. 28 U.S.C. §§ 1331, 1343(a). Defendants timely removed. Accordingly, removal is appropriate.

B. Recusal Issue

Plaintiff has named the undersigned as a Defendant in this action. Ordinarily, when a judge assigned to the case is named as a party, the judge would recuse himself sua sponte pursuant to 28 U.S.C. § 455, which requires a judge to recuse himself "in any proceeding in which his impartiality might be reasonably questioned" or when he is "a party to the proceeding." 28 U.S.C. § 455(a) and (b)(5)(i). However, this case is not ordinary.

When a litigant becomes unhappy with a judge's rulings in a case, a litigant might seek to force the judge to recuse himself by filing a lawsuit against the judge. But a "judge is not disqualified merely because a litigant sues or threatens to sue him.' Such an easy method for obtaining disqualification should not be encouraged or allowed." Ronwin v. State Bar of Arizona, 686 F.2d 692, 701 (9th Cir. 1981) (citation omitted), rev'd on other grounds sub nom. Hoover v. Ronwin, 466 U.S. 558 (1984).

"[A] judge is not disqualified by a litigant's suit or threatened suit against him, or by a litigant's intemperate and scurrilous attacks.'" United States v. Sutcliffe, 505 F.3d 944, 958 (9th Cir. 2007) (quoting United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986)). Similarly, "[w]here a claim against the undersigned judge is so wholly frivolous that there is no jurisdiction, the assigned judge should be able to decline to recuse and proceed with dismissing the case." Snegirev v. Sedwick, 407 F.Supp.2d 1093, 1095 (D. Alaska 2006). See also Reddy v. O'Connor, 520 F.Supp.2d 124, 131 (D.D.C. 2007) ("recusal is not required where the claim asserted is wholly frivolous' or a litigant has named a ...


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