Leaderboard 728 X 90

Monday, November 14, 2016

Is Judge R. David Proctor trying to unlawfully force us to re-file a civil-rights complaint that would be outside the statute of limitations and easy to dismiss?


R. David Proctor
What is U.S. District Judge R. David Proctor trying to accomplish by denying service by the court, which is required by law for indigent parties such as Carol and me, in a civil-rights lawsuit we've brought over my unlawful incarceration in Shelby County, Alabama? Experience has taught us that it is hard to think along with a corrupt mind. But legal research allows us to make an educated guess about Proctor's motives.

Proctor likely is trying to force us to re-file our case so that it now can be dismissed as untimely, outside the statute of limitations. That will allow him to protect certain defendants (fellow U.S. Judge William H. "Bill" Pryor, GOP operative Rob Riley, etc.) from discovery and a possible trial on the merits, which is likely to yield all sorts of ugly truths about GOP elites in Alabama.

How does this work? Proctor dismissed our case "without prejudice," meaning it can be re-filed (on the same issues) as a new case. Some might say, "Well, just re-file it and get on with things." But it's not that easy. Our original complaint clearly was filed within the two-year statute of limitations -- on March 26, 2016, exactly two years after my release from jail. Proctor has no way, under the law, to sweep that case under the rug as "untimely."

But he stepped in to cut off service by the court, even though he already had taken action to show the claims were not frivolous and required us to pay a $200 partial filing fee. Once Proctor had taken those actions, he no longer had authority over the case, until the court had issued summonses, conducted service on our behalf, and allowed defendants to file answers.

Proctor stepped in and exercised his authority anyway, acting as if the law governing such situations does not exist. What is the law when you re-file a case that has been dismissed without prejudice? It's not easy to provide an answer to that one because the law is less than straightforward, tossing out a number of "ifs, ands, and buts."

A case styled Stein v. Reynolds Securities Inc. 667 F. 2d 33 (11th Cir., 1982), however, suggests a re-filed complaint in our case would be outside the statute of limitations. From Stein:

Stein contends that the period of limitations was tolled by the filing of his initial suit in 1976, despite the fact that the district court subsequently dismissed this action for failure to prosecute. We disagree. The fact that dismissal of an earlier suit was without prejudice does not authorize a subsequent suit brought outside of the otherwise binding period of limitations.

The finding in Stein strongly suggests that Proctor is acting unlawfully to force us to re-file a complaint that will be outside the limitations period. To be sure, some fairly complicated case law suggests a re-filed complaint might be timely in our case. This leads to some fairly arcane legal questions, such as: (1) Would our re-filed complaint "relate back" to the original filing? (2) Would the limitations period in our case be "equitably tolled"?

A sufficient answer to these two questions would make this post unwieldy and much too long. The simple answer is this: Judge Proctor has created  a hoop, out of thin air, that we should not have to jump through. And this hoop enhances the likelihood that our case will be dismissed as untimely.

We think this explains Proctor's actions, and it provides insight into how the mind of a compromised judge works to deny justice for regular folks.


Previously in this series:


Proctor acts way outside his authority in wrongful-incarceration case (Nov. 7, 2016)


Proctor creates bogus legal terms in civil-rights case (Nov. 1, 2016)


Proctor abuses "pauperis" law (Oct. 31, 2016)


Proctor tramples law that governs treatment of indigent litigants (Oct. 27, 2016)


Fighting back in federal court against unlawful incarceration and wrongful foreclosure (Oct. 25, 2016)

26 comments:

Anonymous said...

I think you nailed it. One of the easiest things in the world for a judge to do is kick out a case because it was filed after the statute of limitations. Your case was timely filed, but Proctor is trying to force a re-filing that would be outside the time limit. I wasn't sure what he was up to, but this makes a lot of sense.

Anonymous said...

Sounds like Judge Proctor is being a very bad boy.

Anonymous said...

How do you spell alaDAMNbama?

Anonymous said...

Governor Bent and his main squeeze Becky Homewrecky got a mention today. As did Bill Canary and the BCA, among others.

<a href="http://www.alreporter.com/nixonian-plots-half-wit-schemes/

Clifton Walker said...

Too bad nobody predicted this result and your reaction to it.

Anonymous said...

Since you are such a wise one, Clifton, why don't you cite to law that shows Judge Proctor's actions are correct? Give it a shot or STFU.

Anonymous said...

Nice challenge, @11:20. But keep in mind that Cliffy uses a fake name and a fake location because . . . well, he's not up to tasks like the one you put to him. To show law that supports Proctor's actions would take some effort and brainpower, and Cliffy is lacking on both fronts.

Clifton Walker said...

@ 11"20

I will not STFU because you think I should, Of course Mr. Shuler can refuse to publish my post, but that won't make me STFU.

And whether he publishes my posts or not, that won't change the fact that I predicted both the court's actions and his response to the court's action.

I will expand that prediction, Roger Shuler will never, when acting pro se, get a case to discovery as a plaintiff.

Anonymous said...

If Proctor is doing this at someone's urging, is that a crime?

legalschnauzer said...

I'm not an expert on criminal law, @11:45, but I'm pretty sure the answer is yes. Three possibilities come to mind -- obstruction of justice, misprision of a felony, and conspiracy. I'm quite certain it's a crime, and I'm quite certain the FBI needs to know about it. If someone cares to differ with my analysis, let's hear it.

legalschnauzer said...

Well, we just got a reply from Clifton, and it suggests he is part of the very kind of criminal conspiracy noted above. We've been down this road before, and I've suggested "Mr. Walker" tread carefully. He's apparently not smart enough to do that. Also, he's not smart enough to realize that, while he accuses me of being predictable, his own comments are paragons of predictablity. And as predicted, he can't even come close to citing law that supports Proctor's actions.

Given his whiny tone and the lack of depth in his comments, Clifton must be a Trumpista.

Anonymous said...

Cliffy:

What law makes you think Mr. and Mrs. Shuler will not get to discovery on their claims?

Also, you've raised the discovery issue before, which makes me think you are concerned about it. What about discovery in this matter has you worried?

Clifton Walker said...

Roger, seeing as how your life has gone, why should anyone take suggestions from you?

Clifton Walker said...

@11:55

No law. Rather I am predicting they will fail in this and in all suits they file pro se because they do not know what they are doing. Just look at their record in court. Have they ever been even semi-successful while representing themselves?

I think it is clear there are two possibilities as to why the lose so much.

1. Mr. Shuler is correct in that every court in every state (and federal) that might hear a case involving him is hopelessly corrupt and stacked against him.

2. His pro se efforts are so weak that he has no hope of prevailing.

I am going to go with the second choice.

The Shulers have had cases before that if he had retained counsel, the outcome almost certainly would have been different. My belief is that he won't retain counsel because he only wants to be represented by someone who fully buys into his crusade. Winning a legal war, while conceding a legal point, is not what he wants to do. He is willing to lose the case by focusing on a point that real attorneys would not bother to argue.

When he loses, it only adds to his delusion that the entire political apparatus is conspiring against him.

The people who run Alabama Legal Reporter have caused much more havoc among the political apparatus than has Mr. Shuler, but they don't face the same issues that Shuler does. If there was going to be a conspiracy to silence an online media outlet, wouldn't that be the better target?

Anonymous said...

It seems to me "Clifton" and Mr. Schnauzer are in agreement. Clifton says the case won't get to discovery, and Mr. Schnauzer writes that Proctor is trying to force a re-filed complaint, which will make the case likely to be dismissed as untimely, avoiding discovery.

So, the two of you are singing from the same hymnal, except Mr. Shuler actually puts some meat behind what he writes. Clifton has yet to say anything of substance, that I can tell, other than to brag about his predictions that no one cares about.

legalschnauzer said...

Clifton at @11:58 --

Why would anyone care about your predictions? Life apparently hasn't gone so great for you either. You are too ashamed of your real name and location to give either.

At least I put my real name, real location and this whole blog, along with all kinds of public documents where I'm involved. You haven't come close to anything like that. Maybe there is a good reason you are ashamed of yourself, but only you know about that.

legalschnauzer said...

Clifton @11:55 --

"No law" in your comment? Gee, that's a surprise. And you call me predictable?

Interesting that you acknowledge the system is "rigged." You choose "Door No. 2," but give no reason why you do so, no example of our pro se efforts being weak. Secondly, you fail to mention that we've sought the representation of umpteen lawyers, but when most of them won't respond and calls or e-mails, that makes the pro se route the best option.

What case would we have won if we had retained counsel and why? What moves would have an attorney made to creat a difference? And by "won," what do you mean?

Finally, my understanding is that APR has been hit with bogus defamation lawsuits and had attempts at chopping off their advertisers. On top of that, theirs is a clearly political blog. Mine is primarily a legal blog. Beside that, I recall a number of articles where Bill Britt has hinted at a concerted efforts to shut down APR, so I think you are off track on that one.

Clifton Walker said...

Mr. Britt hasn't gone from upper middle class to absolute poverty as you have. Perhaps he has been hit with suits, but I kinda figure he was represented by competent counsel.

As for cases that would have gone differently, let's go with the series of events that landed you in jail.

You went to jail on contempt after a judge issued an order, probably unconstitutionally, at a hearing you did not attend. You did not attend because you did not believe service was proper.

A lawyer may well have argued at that hearing the service was not proper, but no lawyer would have advised you to not attend that hearing.

If you had been there with a lawyer, you may or may not have won an argument on whether service was proper, but I think there is little doubt the order that led to your contempt charge would never have been issued if you had been represented.

Tht case would have been decided on its merits rather than by default.

legalschnauzer said...

Let's count the ways you are wrong

1. The judge's order was not "probably unconstitutional," it was unconstitutional. I challenged service, which was in fact unlawful, as a first order of business to make sure the court had lawful jurisdiction, which it didn't. The plan then was to challenge constitutional issues, hopefully with a lawyer, but I was arrested before getting a chance to hire a lawyer -- one of many gross due process violations in this case.

2. A veteran attorney, David Gespass, has reviewed the file (which was sealed and outside our view, even though we were parties) and said in writing that we were not summoned to court, and the prelim injunction was issued before service (even unlawful service) had ever been attempted.

3. In other words, to use Donald Trump's word, the case was "rigged."

4. Your next-to-last paragraph is completely out of touch with reality. The order leading to contempt charge already was issued before before Carol and I were even officially parties. Representation had nothing to do with it.

5. The case wasn't decided by default, and it certainly was no trial on the merits. You must be thinking about some other case.

Bottom line: You are wrong about every single point, and that's a matter of either court record or documents that have been published here. You might be even more wrong about the facts than you are about the law. You clearly know nothing about either. Sad to see someone be so lazy and ignorant about profoundly important issues. At least you are consistent: Each comment brings another heapin, helpin of ignorance.

Anonymous said...

You ended up in jail because you threw the sue papers on the ground and refused to acknowledge them (saying a pretext stop is unfair, which is isn't - they are perfectly legal.) You were screwing around avoiding service instead of dealing with the lawsuit head on. You should have retained counsel to defend you. You should have attended the hearing or had you lawyer there to defend you.

You are always hiding out from service, as much as you might try to deny it, and also always trying to hang your case on technical failures of the other side.

It has led to grief. Standing on your rights is not abnormal - the way you do it is.
And when you lose, you won't settle or take your medicine.

Your neighbor might have been obnoxious but your theories about the sale of the house to him being some plot against you were sheer lunacy. And that's kind of your problem, you act like a lunatic. You get treated accordingly.

Rather accomplished people have called you crazy and creepy, and you may feel that's unfair or wrong, but it is how you are perceived and your actions have something to do with that.

You keep digging and digging your hole. Your life is destroyed, but what's awful is that you seek trouble and get it, and then decide it's a grand conspiracy against you. You write nutty things about people's private lives with the flimsiest of foundations for any of it, and naturally they want you to STFU and leave them alone.

Your family helps you, and all you can do is bitch about how they should have helped you more and better and exactly to your expectations. Your family didn't want to pay your rent anymore. Your family expected you to do something to pick up the pieces of your lives. You wouldn't take your brothers offer of an apartment because he charged you utilities. Why is your brother supposed to pay your utilities and/or pay taxes on a below-market price rental? He gave you a place without requiring a credit check. Where else were you going to get a place to stay? Oh, that's right, a fleabag hotel. To which you had to be evicted, because you tried to game your lease.

Any sensible person would have been planning to get out ASAP, as soon as notice to leave appeared, deadlines or no deadlines. You had a chance to negotiate a month to month, and blew it. And I'm not so sure you never said anything to anyone about them needing guns to get you out. That's because you are crazy.

legalschnauzer said...

Your ignorance, once again, is blinding. A lawful pretext stop involves "reasonable suspicion" of a crime related to the vehicle, almost always something having to do with drugs. No one has ever hinted there was any crime connected to our car, so the traffic stop was illegal under the Fourth Amendment.

The rest of your comment is totally disconnected from reality. If there is a single accurate statement in it, I can't find it right now. I'm not going to waste time correcting all the garbage in your comment.

I will ask this: If you are an expert on how to stand for rights, why don't you share with us how that should be done. And be sure to include your real name and contact information, so we can judge whether you have any knowledge on this subject or not.

legalschnauzer said...

Memo to @2:42 --

See if you can find any citation that shows "frequent filer" is a term that has any meaning under the law. If you find one, give me a call at (205) 381-5673. Would be happy to discuss.

I suggest also that you do some research on the Pryor issue. I've reported that multiple law enforcement officials, who investigated the photo when it first surfaced, traced it to Monroe, LA, where Pryor was in college and was 18 or over.

Either educate yourself or quit embarrassing yourself. Also, try growing a pair and give your name that goes with your baseless opinions.

Anonymous said...

You are doing it again. The photo is clearly of a different person. There's no evidence of it having been produced at that institution or any other, but that's irrelevant, because it isn't Pryor - the features and natural hair-part (which is a genetic feature that doesn't change with time) are different, excluding any reasonable assertion that it is him, no matter where you found the image. There is only a very superficial resemblance which for some unknown reason you have latched onto. It's a young adolescent, not anyone over 18.





Anonymous said...

A judge can consider your experience (and results) in prior cases when evaluating how much slack to give you in other cases, and may even legitimately raise scrutiny of flaws, if you appear to be sue-happy.

Being a "frequent filer" is not a legal term, but your litigation activities are relevant to your failing to meet standards others have to follow. It's a description applied to you by more than one judge - and means that you either are or should be more familiar with what is required to comply with rules.

legalschnauzer said...

You are quite a hoot @8:05. At least you aren't afraid to show your ignorance, which I guess could be a somewhat admirable trait. A judge can consider results in prior cases involving a person for grounds in ruling in another case involving that person? You actually believe that? What country are you from? It certainly isn't the U.S. Try citing law to support that, and you will need to allot mucho time to that project. Tell me one judge who has accurately applied that description to me -- and by accurate, I mean a judge who has shown I've failed to meet relevant standards.

legalschnauzer said...

@7:59 -- You are a real scream. You are an expert now on the parting of hair? Why don't you come visit me, and I will show you how I can part my hair on either side. Just in the past three days, I've communicated with three people who were at NE Louisiana with Pryor, who knew him in various ways (including one very interesting way), and they all said it is him. That doesn't include law-enforcement officials who said three years ago it is him.

Here are some specifics that one of our Bayou sources included. This is from a person who has a lengthy career that includes the analysis and editing of visual images:

"Note shape of outer ear to auditory canal, hairline, shape of eyes, lazy eye syndrome, facial to neck structure, right front tooth protrusion."

What is your response to that, Jessica? Are you the one who complained to Google because the sight of Pryor's "thingy" made you verklempt?

My, how twisted and ambitious and creepy we are.