|R. David Proctor|
Why does the IFP issue matter? Well, if you qualify for it, you either pay no filing fees (which can be in the neighborhood of $500) or a partial fee. Also, the court itself, via the clerk's office has an obligation to issue summonses and complete service of defendants on your behalf. All of this simply makes common sense. Like filing fees, service costs can be steep -- depending on how many defendants are involved -- and law holds that litigants are not to be denied access courts simply because they are poor. After all, some litigants, like us, are poor only because of corrupt courts.
As posted here last week, we have filed two federal lawsuits in the Northern District of Alabama, seeking justice for the abuse we've experienced at the hands of lawyers, law enforcement, mortgage political operatives, bankers, house flippers, and so on. In one case that we call "The House Case" (Shuler, et al v. Garrison, et al) we allege wrongful foreclosure, defamation, and other torts against more than a dozen defendants -- and our IFP situation has gone smoothly. U.S. Magistrate T. Michael Putnam granted IFP status, the clerk's office promptly started fulfilling its duty to effect service on our behalf, and a number of defendants have responded with various motions that are awaiting court action. In other words, The House Case is rocking along, as it should be.
The one we call "The Jail Case" (Shuler, et al v. Duke, et al), about police brutality, false arrest and imprisonment, etc., actually was filed first and should be even further along. U.S. District Judge R. David Proctor granted what he called "partial IFP status." and required us to pay a reduced filing fee of $200. We timely paid that fee, sent defendants' names and addresses to the clerk's office, contacted a woman named Angela Day who told us the clerk's office would conduct service on both cases, and waited for the real legal action to commence.
Instead, we got an order from Proctor claiming our "partial IFP status" did not entitle us to service-by-court and gave us a small window (two or three weeks, I think) to complete service on our own. We knew Proctor was wrong about the law, so we challenged his order (as we are entitled to do), and he ruled that his small window had closed and dismissed our case without prejudice (meaning it can be refiled), claiming we had failed to prosecute. In fact, we had prosecuted it exactly as we had with The House Case, so Proctor's refusal to follow the law indicates he is incompetent, corrupt, or both.
Proctor's actions are a classic example of chicanery we have seen in both state and federal courts time and again. A lawyer or judge will make a citation to law, giving the impression he has conducted actual research, probably thinking no one will check on it. When you read the case, you find its holding is nowhere close to what the judge or lawyer says. It's as if every law school offers a course titled How to Cheat The Other Side 101. If so, Proctor clearly took the course, and he must have aced it. We are guessing he didn't do quite so well on any legal-ethics course that might have been required.
We have filed an appeal of Proctor's ruling with the U.S. Eleventh Circuit Court of Appeals. That appeal is pending, and it clearly represents a waste of judicial resources and taxpayer dollars -- not to mention our time. If Proctor simply had followed the law, The Jail Case would be even further along than The House Case.
Here is an explanation of the straightforward law that guides this area of law. The statute in question is 28 U.S. Code 1915, and 1915(d) could not be more clear:
(d) The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases.
The highlighted section plainly states that "officers of the court" SHALL issue and serve all process . . . " That seems to be written in clear English, and the word "shall" indicates the officers have a duty to prepare and serve all process -- it is not a discretionary matter.
So, what does Proctor come up with? He claims Sec. 1915(d) applies only to "full status" IFP litigants. He also claims that a case styled Bryan v. Johnson, 821 F. 2d 455 (7th Cir., 1987) holds that courts are not obligated to conduct service for "partial IFP" litigants.
Proctor could not be more wrong. I've published all of 1915(d) above, and it says nothing about "partial IFP" status. Neither does Bryan v. Johnson; in fact, here is the key holding in that case:
A district judge should deny leave to proceed in forma pauperis if an action is frivolous or malicious. If the motion is granted and the complaint filed, the matter cannot be dismissed until summons has issued.”
The record shows that Proctor did, in fact, grant our "pauperis" motion and allowed the complaint to be filed, which means he did not find it to be "frivolous or malicious." Under those circumstances, the matter cannot be dismissed until summonses have issued. But Proctor dismissed our Jail Case and blocked the clerk's office from issuing summonses and completing service, forcing us to seek corrective action from the Eleventh Circuit. In blunt terms, Proctor butchered the law he took an oath to uphold.
Bryan goes on to hold as follows, providing more specifics:
If the court had considered the complaint to be frivolous it should have at that point dismissed the matter pursuant to § 1915(d) instead of ordering Bryan to pay a partial filing fee. Moreover, Bryan himself thought his claim was meritorious because he devoted a significant share of his assets to prosecuting his claim. Thus, instead of dismissing the complaint, the court should have permitted a summons to issue and allow the defendants to respond.”
When Proctor ordered us to pay a partial filing fee, it was the equivalent of a finding that our case was not frivolous. It also meant that Proctor was obligated to permit process to be completed and allow defendants to respond. He has not allowed either to happen in The Jail Case. Is that because U.S. Circuit Judge William H. Pryor, whose duty station is the Hugo Black Courthouse in Birmingham (making him, sort of, Proctor's boss ), is a defendant in the Jail Case? After all, my arrest came just a few weeks after I reported on nude photos of Pryor that appeared at the gay-porn site badpuppy.com in the late 1990s. I would say Proctor is, in fact, trying to protect Pryor and perhaps other right-wing luminaries among the defendants. (Proctor seems to wear his conservatism on his sleeve, attending the staunchly right-wing and political Briarwood Presbyterian Church.)
One problem with Proctor's rulings is that he bases them largely on Bryan, which is from the Seventh Circuit and is not controlling law in the Eleventh Circuit. But we have found Eleventh Circuit law that is controlling -- it borrows from Bryan -- and reaches the same conclusion.
At this point, Proctor is violating law from two circuits -- the Seventh and the Eleventh. And he is showing utter contempt for the rights of taxpayers to have their dollars used wisely and lawfully.
(Note: Below is one of two documents we have filed to counter Proctor's rulings. Our documents do not include our signatures and a time stamp because we are out of state and cannot submit documents in person at the Hugo Black Courthouse, as we have done in the past. We must file documents by U.S. Mail, so the signed and time-stamped versions can be seen in the official court file. Unable to show that we are wrong and unwilling to follow the actual law, Proctor has twisted himself into a pretzel trying to come up with some way to justify his rulings and deny us justice.
(So far, he has only succeeded in digging his legal hole deeper. We hope to publish copies to Proctor's rulings here. But we currently have them only in paper form, and our scanner was stolen in our unlawful eviction here in Missouri, so we do not have the capacity to digitize the paper rulings and publish them here. Anyone with a PACER account, which is a subscription service that charges fairly steep fees, can check the full docket in both of our cases. Meanwhile, we hope to figure out a way to scan and embed Proctor's rulings, and other documents, here.)
(To be continued)