Kemper v. United States District Court, District of Colorado

MOTION to Dismiss Case as Frivolous

E.D. La.October 11, 2016

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GARY ALLEN KEMPER CIVIL ACTION NO. 16-8740 VERSUS SECTION “I”(1) U.S. DISTRICT COURT FOR THE JUDGE AFRICK DISTRICT OF COLORADO MAG. JUDGE VAN MEERVELD * * * * * * UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO’S MOTION TO DISMISS NOW INTO COURT, through the undersigned Special Assistant United States Attorney, comes the United States District Court for the District of Colorado (the “District Court”) and respectfully moves to dismiss the above-captioned matter.1 For the reasons assigned in its supporting memorandum, the District Court respectfully submits that this matter should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) because the complaint is frivolous and malicious. 1 The United States Attorney may not waive proper service, therefore the filing of the instant motion in no way constitutes a waiver. McGinnis v. Shalala, 2 F.3d 548, 549-50 (5th Cir. 1993). The District Court also reserves any defense related to venue, jurisdiction, failure to state a claim, or other defense or objection that may be available under Rule 12 of the Federal Rules of Civil Procedure. The District Court also reserves its defense of sovereign immunity from suit. Case 2:16-cv-08740-LMA-JVM Document 11 Filed 10/11/16 Page 1 of 2 2 WHEREFORE, for the reasons assigned in its accompanying supporting memorandum, the United States District Court for the District of Colorado, respectfully prays that the above- captioned matter be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B). New Orleans, Louisiana, this 11th day of October, 2016. Respectfully submitted, KENNETH ALLEN POLITE, JR. UNITED STATES ATTORNEY /s/ Lauren J. Delery LAUREN J. DELERY Special Assistant United States Attorney LA Bar Roll No. 31128 650 Poydras Street, 16th Floor New Orleans, Louisiana 70130 Telephone: (504) 680-3150 Facsimile: (504) 680-3174 lauren.delery@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion to Dismiss was served electronically via CM/ECF on counsel for all parties on this 11th day of October, 2016. I further certify that I sent a copy of the foregoing Motion to Dismiss to Plaintiff Gary Allen Kemper by certified mail and first-class mail on this 11th day of October, 2016, at the following address: Gary Allen Kemper 4501 Boardwalk Dr., B-11 Fort Collins, CO 80525 /s/ Lauren J. Delery LAUREN J. DELERY Special Assistant United States Attorney Case 2:16-cv-08740-LMA-JVM Document 11 Filed 10/11/16 Page 2 of 2 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GARY ALLEN KEMPER CIVIL ACTION NO. 16-8740 VERSUS SECTION “I”(1) U.S. DISTRICT COURT FOR THE JUDGE AFRICK DISTRICT OF COLORADO MAG. JUDGE VAN MEERVELD * * * * * * UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS MAY IT PLEASE THE COURT: The United States District Court for the District of Colorado (the “District Court”), through the undersigned Special Assistant United States Attorney, respectfully submits this memorandum in support of its Motion to Dismiss. As discussed below, the above-captioned matter should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) because the complaint is frivolous and malicious. Accordingly, the District Court respectfully requests that this Honorable Court grant the instant motion, thereby dismissing the case. BACKGROUND On June 7, 2016, Plaintiff Gary Allen Kemper (“Plaintiff”), proceeding pro se, initiated the above-captioned matter against the District Court. R. Doc. 1. Plaintiff also sought leave that day to proceed in forma pauperis. R. Doc. 2. Plaintiff alleges that the District Court is liable for damages of $1 Billion for partially denying a motion in connection with his application for supplemental security income (“SSI”) pursuant to Title XVI of the Social Security Act. Case 2:16-cv-08740-LMA-JVM Document 11-1 Filed 10/11/16 Page 1 of 6 2 The District Court ruling apparently at issue in the instant suit arises from the sixth of Plaintiff’s eight lawsuits filed in the District of Colorado. Plaintiff complains that in Civil Action 10-02237, the District Court granted in part and denied in part his motion to review certain documents. R. Doc. 1, p. 4. Kemper v. Commissioner of Social Security, No. 10-02237 (6/15/12), ECF No. 41. Plaintiff appealed this Order to the Tenth Circuit, which dismissed the appeal as untimely. Kemper v. Colvin, 514 F. App’x 740 (10th Cir. 2013). Plaintiff now seeks to have this Court review and impose damages for this unappealable ruling of the District Court. In state and federal courts in Colorado, Plaintiff sought worker’s compensation and social security benefits relating to an injury that occurred in 1994. In addition to his state court and administrative filings, Plaintiff litigated his underlying claim in the District of Colorado for eleven years, filing eight separate lawsuits, several appeals to the Tenth Circuit Court of Appeals, and a writ of certiorari to the Supreme Court. See: • Kemper v. Commissioner of SSA, et al., No. 03-00058 (D. Colo. 1/9/04); aff’d No. 04- 1017 (10th Cir. 2004); cert. denied No. 04-9579 (2005) • Kemper v. Industrial Claim Appeals Office of the State of Colo., et al., No. 03-1162 (D. Colo. 7/3/03), aff’d No. 03-1162 (10th Cir. 2003) • Kemper v. Industrial Claim Appeals Office of the State of Colo., et al., No. 03-01801 (D. Colo. 10/6/03) • Kemper v. LPR Construction Co., et al., No. 07-01538 (9/19/07), aff’d No. 07-1411 (10th Cir. 2008) • Kemper v. Commissioner of Social Security, No. 07-02339 (3/3/09) • Kemper v. Commissioner of Social Security, No. 10-02237 (6/15/12), appeal dismissed No. 12-1412 (10th Cir. 3/28/13) • Kemper v. Colorado Court of Appeals, et al., No. 12-02264 (10/2/12), aff’d No. 12- 1411 (10th Cir. 2013) • Kemper v. Astrue, et al., No. 13-00889 (7/18/14), aff’d No. 14-1293 (10th Cir. 2015) This repetitive prosecution of the same claim never achieved the result Plaintiff sought. The District Court, finding that “the Court cannot accept the filing of repetitious, meritless lawsuits,” and finding further that “Mr. Kemper either does not understand preclusion principles or that he has chosen to ignore this Court’s and the Tenth Circuit’s explanations that his worker’s Case 2:16-cv-08740-LMA-JVM Document 11-1 Filed 10/11/16 Page 2 of 6 3 compensation claim is improperly raised in a federal court,” See Order of Dismissal, Kemper v. Colorado Court of Appeals, et al., No. 12-02264 (10/2/12), ECF No. 17, imposed filing restrictions on Plaintiff enjoining him from filing “any pro se action challenging the State of Colorado worker’s compensation that involved the injury he incurred in 1994 while working at LPR Construction Company.” See Order Imposing Filing Restrictions, Kemper v. Colorado Court of Appeals, et al., No. 12-02264 (10/18/12), ECF No. 25. Finding no success in Colorado, and enjoined from further in forma pauperis litigation of his worker’s compensation claim in the District Court, Plaintiff now seeks to have this Court review the District Court’s actions and impose damages for those actions in the amount of $1 Billion. Because his Complaint, in forma pauperis, is frivolous and malicious, this action should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). LAW AND ARGUMENT A federal court is required to dismiss a claim filed in forma pauperis if the court determines that the action (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted, or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Congress recognizes that “a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits,” Neitzke v. Williams, 490 U.S. 319, 324 (1989), and thus enacted a provision that “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits.” Id. at 327. The instant action continues Plaintiff’s abuse of the judicial system and is by its nature the type of frivolous, malicious, and repetitive litigation § 1915(e)(2)(B) is designed to quash. Case 2:16-cv-08740-LMA-JVM Document 11-1 Filed 10/11/16 Page 3 of 6 4 A complaint is frivolous “if it lacks an arguable basis in law or fact.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1994). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory.” Id., at 1005 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). IFP complaints may also be dismissed as frivolous “when they seek to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated by the IFP plaintiff.” Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989). A complaint is malicious when it duplicates allegations of another federal lawsuit by the same plaintiff. Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993). “When declaring that a successive in forma pauperis suit is ‘malicious’ the court should insure that the plaintiff obtains one bite at the litigation apple-but not more.” Id. Here, Plaintiff took eight bites at the “litigation apple” in the District Court, and engaged in other Colorado state and administrative proceedings regarding the same injury claim, before moving to the Eastern District of Louisiana to continue his campaign for damages and SSA benefits. There is no arguable basis for success in this attempt to relitigate his claims, and this repetitive litigation is an abuse of the process of the courts. At its core, the Complaint is duplicative of the claims that have been litigated and dismissed in the District Court and other Colorado courts and administrative bodies. However, the Complaint further seeks damages from the District Court for its actions in Plaintiff’s 2010 case, Kemper v. Commissioner of Social Security, No. 10-02237 (D. Colo. 6/15/12). This attempt at collateral attack of the District Court’s ruling is indisputably meritless. It is “black letter law that a valid final judgment, even if erroneous, is not open to collateral attack,” except in circumstances where the judgment is based on fraud, accident, mistake, or other equitable ground. Southmark Properties v. Charles House Corp., 742 F.2d 862, 872 (5th Cir. 1984). There is no equitable ground for this Case 2:16-cv-08740-LMA-JVM Document 11-1 Filed 10/11/16 Page 4 of 6 5 Court to re-consider the District Court’s unappealable and valid judgment in Plaintiff’s 2010 case, or in any of the other cases that were dismissed from the District Court. Because there is no arguable basis for Plaintiff to succeed in his attack on the District Court’s actions, the complaint is frivolous. Moreover, the District Court is immune from suit, and there is no possibility for Plaintiff to succeed in his claim for damages. The Federal courts are not entities that can be sued. Muzzi v. United States Supreme Court, 2002 WL 31324140 (E.D.La. 10/16/02). Absent a waiver, sovereign immunity shields the Federal government, its agencies, and officers from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Congress prescribes the terms of such waivers, and courts may not exercise subject-matter jurisdiction over a claim against the Federal government except as Congress allows. Block v. North Dakota, 461 U.S. 273 (1983); United States v. Orleans, 425 U.S. 807, 814 (1976); Drake v. Panama Canal Comm’n, 907 F.2d 532, 534 (5th Cir. 1990); Ware v. United States, 626 F.2d 1278, 1286 (5th Cir. 1980). Because the District Court cannot be sued, Plaintiff’s Complaint lacks arguable basis in law, and is frivolous. CONCLUSION Plaintiff’s action in forma pauperis is repetitive, duplicative, and lacks any arguable basis in law or fact. The action frivolous and malicious, and should be dismissed. Case 2:16-cv-08740-LMA-JVM Document 11-1 Filed 10/11/16 Page 5 of 6 6 WHEREFORE, for the reasons assigned above, the United States District Court for the District of Colorado respectfully prays that the above-captioned matter be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Respectfully submitted, KENNETH ALLEN POLITE, JR. UNITED STATES ATTORNEY /s/ Lauren J. Delery LAUREN J. DELERY Special Assistant United States Attorney LA Bar Roll No. 31128 650 Poydras Street, 16th Floor New Orleans, Louisiana 70130 Telephone: (504) 680-3150 Facsimile: (504) 680-3174 lauren.delery@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum in Support of Motion to Dismiss was served electronically via CM/ECF on counsel for all parties on this 11th day of October, 2016. I further certify that I sent a copy of the foregoing Motion to Dismiss to Plaintiff Gary Allen Kemper by certified mail and first-class mail on this 11th day of October, 2016, at the following address: Gary Allen Kemper 4501 Boardwalk Dr., B-11 Fort Collins, CO 80525 /s/ Lauren J. Delery LAUREN J. DELERY Special Assistant United States Attorney Case 2:16-cv-08740-LMA-JVM Document 11-1 Filed 10/11/16 Page 6 of 6 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GARY ALLEN KEMPER CIVIL ACTION NO. 16-8740 VERSUS SECTION “I”(1) U.S. DISTRICT COURT FOR THE JUDGE AFRICK DISTRICT OF COLORADO MAG. JUDGE VAN MEERVELD * * * * * * NOTICE OF SUBMISSION NOTICE IS HEREBY GIVEN that the Motion to Dismiss filed by the U.S. District Court for the District of Colorado will be submitted to the Honorable Judge Lance M. Africk of the U.S. District Court for the Eastern District of Louisiana, 500 Poydras Street, Suite C405, New Orleans, Louisiana 70130 on November 2, 2016. The motion is being submitted on the papers and no oral argument is requested. New Orleans, Louisiana this 11th day of October, 2016. Respectfully submitted, KENNETH ALLEN POLITE, JR. UNITED STATES ATTORNEY /s/ Lauren J. Delery LAUREN J. DELERY Special Assistant United States Attorney LA Bar Roll No. 31128 650 Poydras Street, 16th Floor New Orleans, Louisiana 70130 Telephone: (504) 680-3150 Facsimile: (504) 680-3174 lauren.delery@usdoj.gov Case 2:16-cv-08740-LMA-JVM Document 11-2 Filed 10/11/16 Page 1 of 2 2 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum in Support of Motion to Dismiss was served electronically via CM/ECF on counsel for all parties on this 11th day of October, 2016. I further certify that I sent a copy of the foregoing Motion to Dismiss to Plaintiff Gary Allen Kemper by certified mail and first-class mail on this 11th day of October, 2016, at the following address: Gary Allen Kemper 4501 Boardwalk Dr., B-11 Fort Collins, CO 80525 /s/ Lauren J. Delery LAUREN J. DELERY Special Assistant United States Attorney Case 2:16-cv-08740-LMA-JVM Document 11-2 Filed 10/11/16 Page 2 of 2