|R. David Proctor|
Those are two more reasons, of about a half dozen or more, that Proctor's actions in what we call "The Jail Case" (Shuler, et al v. Duke, et al) are unlawful -- and they have forced us to waste time and judicial resources to seek review with the U.S. Eleventh Circuit Court of Appeals. It's a classic illustration that many federal judges do not give a rip about wasting the taxpayer funds that support their cushy existence. (Links to previous posts in this series are at the end this post.)
Why is Proctor acting outside his authority? In so many words, a judge cannot lawfully do much in a case where defendants have not been served. Without service, The Jail Case essentially has not started and Proctor has no authority over defendants. That means Proctor largely should stay out of it until the clerk's office has completed service on our behalf, as it is required to do for IFP litigants. But Proctor has stepped way beyond his authority to block the clerk's office from completing service.
Proctor has taken several proper steps in our case: He has granted IFP status, required us to pay a partial filing fee of $200 (which we timely paid), and in so doing, found that our claims were not frivolous. That's pretty much where his authority ends at this point in the litigation. An article at Fordham Law Review spells this out:
"Section 1915(c) . . . directs officers of the court to issue summons when an IFP complaint is filed, and to serve process for IFP plaintiffs. Neither the Rules nor the IFP statute vests a judge with discretion to intervene at this stage of the pleadings to determine whether the clerk may issue a summons." Thus, courts reason that under the postfiling delayed dismissal approach an IFP complaint may not be dismissed before issuance of process.
Anyone with sixth-grade reading skills should be able to comprehend this. A judge has no "discretion to intervene at this stage," and an "IFP complaint may not be dismissed before issuance of process." Does Proctor have sub-par reading skills? I doubt that. He simply is trying to cheat us, and he's quite transparent about what he is doing.
Proctor even resorts to a juvenile mindset as part of his con game. He repeatedly has called us "frequent filers," which he apparently considers a clever reference to the fact we have been involved in several federal cases. Specifically, he uses this sobriquet in an apparent attempt to hold us to the same standards as an attorney, or a party represented by an attorney. Is this lawful? No, it is not -- as spelled out in a case styled Kilgo v. Ricks 983 F.2d 189 (11th Cir. 1993):
As already noted, Kilgo (a state prisoner) evidently has tried to comply with the district court's orders to complete these forms, but gave up in despair. It may be that Kilgo despaired too easily, but a district court which holds pro se litigants to the same standards as trained practitioners may end up routinely rejecting meritorious claims for failure to prosecute. This course we cannot approve. Unless the court is willing to guide pro se litigants through the obstacle course it has set up, or to allow them to skip some of the less substantive obstacles, it should not erect unnecessary procedural barriers which many pro se litigants will have great difficulty surmounting without the assistance of counsel.
I might know more about legal procedure than most folks, but this is the first time we have dealt with the in forma pauperis process. Despite that, our research indicates we have have gotten it right, suggesting we know more about the process than does Proctor.
The Kilgo case also helps illustrate that Proctor unjustly dismissed our case because of alleged delays on our end. In fact, Proctor himself caused the delays by interjecting himself at a stage where he has no authority. But either way, Kilgo makes it clear that Proctor acted unlawfully:
Mere delay will not suffice; "[a] finding of such extreme circumstances necessary to support the sanction of dismissal must, at a minimum, be based on evidence of willful delay; simple negligence does not warrant dismissal."
Proctor has proven that he is a glorified con man wearing a robe. As part of our effort to have the Eleventh Circuit correct his mistakes, we will seek to have Proctor removed from the case.
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)