Richardson v. District of Columbia et al

MOTION to Dismiss

D.D.C.February 28, 2007

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ T. CARLTON RICHARDSON, ) ) Plaintiff, ) Civil Action No.: 06-1665 (RJL) ) v. ) ) THE DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ) ) FEDERAL DEFENDANT’S MOTION TO DISMISS Defendant, Court Services and Offender Supervision Agency (“CSOSA”), hereby files its motion for dismissal. Plaintiff has failed to properly serve notice of this lawsuit on the United States and therefore dismissal pursuant to Federal Rule of Civil Procedure 12(b)(4) is proper. In addition, because Plaintiff has failed to state a proper claim for relief, dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is also proper. A memorandum of points and authorities as well as a proposed Order accompany this motion. Plaintiff, who is proceeding pro se, is hereby advised that failure to respond to this motion may result in the district court granting the motion. See Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988). Plaintiff should also take notice that any factual assertions contained in the affidavits and other attachments in support of defendant’s motion will be accepted by the Court as true unless the plaintiff submits his own affidavits or other documentary evidence contradicting the assertions in the defendant’s attachments. See Neal v. Kelly, 963 F.2d 453, 457 (D.C. Cir. 1992), Local Civil Rule 7(h) and Fed. R. Civ. P. 56(e), which provides as follows: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 1 of 19 be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Respectfully submitted, /s/ Jeffrey A. Taylor JEFFREY A. TAYLOR, D.C. BAR # 498610 United States Attorney /s/ Rudolph Contreras RUDOLPH CONTRERAS, D.C. BAR # 434122 Assistant United States Attorney /s/ Michelle N. Johnson MICHELLE N. JOHNSON, D.C. BAR # 491910 Assistant United States Attorney United States Attorney's Office Civil Division 555 4th Street, N.W. - Room E4212 Washington, D.C. 20530 (202) 514-7139 COUNSEL FOR DEFENDANT Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 2 of 19 Plaintiff was initially suspended from the bar of the state of Florida for 91 days “for1 charging a ‘clearly excessive fee’ for his services . . . .” Richardson v. Florida Bar, No. Civ.A. 90-0984, 1990 WL 116727, at *1 (D.D.C. May 15, 1990). UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ T. CARLTON RICHARDSON, ) ) Plaintiff, ) Civil Action No.: 06-1665 (RJL) ) v. ) ) THE DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ) ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE FEDERAL DEFENDANT’S MOTION TO DISMISS Defendant, Court Services and Offender Supervision Agency (“CSOSA”), hereby files this memorandum of points and authorities in support of its motion for dismissal. Plaintiff has failed to properly serve notice of this lawsuit on the United States and therefore dismissal pursuant to Federal Rule of Civil Procedure 12(b)(4) is proper. In addition, because Plaintiff has failed to state proper claims for relief, dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is also proper. I. BACKGROUND Plaintiff, T. Carlton Richardson, is a frequent litigant in this district. The impetus for what is becoming a pattern of litigation by Plaintiff stems from a disciplinary order of the District of Columbia Court of Appeals, which eventually resulted in Plaintiff’s suspension from the practice of law in this district. See, e.g., Richardson v. District of Columbia Court of1 Appeals, 962 F. Supp. 1 (D.D.C. 1997); Richardson v. District of Columbia, No. Civ.A. 05- Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 3 of 19 Plaintiff’s prior habeas petition sought to challenge the decision of the District of2 Columbia Court of Appeals finding Plaintiff guilty of criminal contempt for failing to comply with a prior interim order suspending him from the practice of law. (Compl. Ex. A, Memorandum Opinion dated July 11, 2001, at i (Robertson, J.)). A sentence of 120 days imprisonment, which was suspended, as well as three years probation, conditioned on the payment of court costs and a fine, was imposed on Plaintiff. (Id.). Plaintiff appealed that conviction, which was affirmed. (Id.; see also In re Richardson, 759 A.2d 649 (D.C. 2000)). Although the Order is dated August 1, 2001, the file stamp indicates that it was filed by3 the Clerk of the Court on July 31, 2001. (Ex. B). 2 0210, 2005 WL 711839, at *1 (D.D.C. Mar. 29, 2005). Indeed, almost 8 years ago, Plaintiff brought an action styled Richardson v. Court Services and Offender Supervision Agency, Civil Action No. 99-0657, in which he sought habeas relief. That case was dismissed by Judge2 Robertson on July 11, 2001. (Ex. A, Docket sheet for Case No. 99-0657, docket entry no. 30; see also Compl. Ex. A (Memorandum Opinion dated July 11, 2001) (Robertson, J.)). Plaintiff filed a motion seeking reconsideration of Judge Robertson’s dismissal order, which Judge Robertson denied on July 31, 2001. (See id., docket entry no. 32; Ex. B, Memorandum Order dated August 1, 2001). Plaintiff’s appeal was dismissed by the District of Columbia Circuit. 3 (Ex. A, docket entry no. 37). In his most recent lawsuit, Plaintiff seeks to “reinstate” his prior habeas corpus petition before a different member of this Court. (Count I of complaint, ¶¶ 5-70). Plaintiff contends that reinstatement of his prior petition is proper because, pursuant to Federal Rule of Civil Procedure 60(b), Plaintiff has obtained “newly discovered evidence of prosecutorial misconduct involving the concealment of evidence, obstruction of justice and fraud upon the D.C. and federal courts . . . .” (Compl. ¶ 6). In count two of his complaint, Plaintiff, invoking 42 U.S.C. section 1985, asserts claims he has previously asserted, namely that the defendants conspired to violate his Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 4 of 19 Plaintiff was disciplined by the State of Florida “for charging a ‘clearly excessive fee’4 for his services under Florida’s Disciplinary Rule 2-106, arising out of his representation of an elderly Florida couple in a probate matter.” Richardson v. Florida Bar, No. Civ.A. 90-0984, 1990 WL 116727, at *1 (D.D.C. May 15, 1990). Since the time that the District of Columbia Court of Appeals decided to impose reciprocal discipline on Plaintiff, he has fought incessantly to have that discipline reviewed and nullified. See Richardson, 962 F. Supp. at 1. 3 civil rights in relation to the civil and criminal contempt proceedings that were conducted against Plaintiff. (Id. ¶ 77). Plaintiff contends that the suspension of his right to practice law - which has been effective for “eleven plus (11+) years . . .” in addition to his two years of probation, were excessive in relation to the offenses he committed, and that “ non-Africanic persons of4 other religious persuasions [non-Christian] and in large law firms have never suffered for similar misconduct and with similar professional credentials and notoriety.” (Id. ¶ 91). Plaintiff filed the current lawsuit on September 26, 2006. On November 22, 2006, Plaintiff filed a motion for entry of default against CSOSA. [Docket entry no. 11]. In response, Defendant CSOSA notified the Court, as well as Plaintiff, that because Plaintiff had not properly served the United States, default was not warranted. [See Docket entry no. 17]. The Court denied Plaintiff’s motion for default judgment on December 19, 2006. [Docket entry dated 12/19/06]. To date, Plaintiff has not effected proper service on the United States. ARGUMENT As will be discussed more fully below, dismissal of this action is warranted pursuant to Federal Rule of Civil Procedure 12(b)(4) because Plaintiff has failed to properly serve the United States and the time in which to effect proper service has expired. Alternatively, dismissal is warranted pursuant to Federal Rule of Civil Procedure 12(b)(6) because Plaintiff has failed to state a claim for relief for the following reasons: first, his claims are barred by res judicata and/or Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 5 of 19 4 collateral estoppel; second, he has not asserted a cognizable claim for relief under Rule 60(b); and third, he has not asserted any cognizable claim against CSOSA under 42 U.S.C. section 1985, and, assuming he had, the time in which to assert those claims has expired. I. PLAINTIFF HAS FAILED TO EFFECT PROPER SERVICE ON THE UNITED STATES. As Defendant previously argued in support of its opposition to Plaintiff’s motion for default, because Defendant CSOSA is a federal entity, see D.C. Code § 24-133(a), pursuant to Federal Rule of Civil Procedure 4(i)(1)(A), Plaintiff was required to serve a copy of the summons and the complaint on “the United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and . . . complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney . . . .” In addition, Plaintiff was required to send a copy of the summons and complaint “by registered or certified mail to the Attorney General of the United States . . . .” Fed. R. Civ. P. 4(i)(1)(A). Plaintiff was required to serve process within 120 days after filing the complaint. Fed. R. Civ. P. 4(c)(1); Fed. R. Civ. P. 4(m). On October 31, 2006, Plaintiff filed a “Return of Service Affidavit” indicating that he delivered a copy of the summons and complaint to “Court Services & Supervision Agency” on October 2, 2006. [Docket entry no. 5]. Plaintiff did not assert, and has not asserted, that he at any time attempted to serve the United States Attorney or the Attorney General as required by Rule 4(i)(1)(A). In response to Plaintiff’s motion, CSOSA filed an opposition indicating that service had not been received, and attached the declaration of Cynthia Parker attesting to the fact that no record of service existed. Plaintiff did not dispute these representations. However, despite being notified that he had not properly served the United States, to date Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 6 of 19 Notably, in dismissing one of Plaintiff’s prior actions, Judge Sporkin noted that Rule 115 of the federal rules was available to “sanction an attorney or party who abuses the process by bringing frivolous or repetitive litigation.” Richardson, 962 F. Supp. at 2. Judge Sporkin advised Plaintiff to “think hard before filing another suit such as this one.” Id. Plaintiff, however, has not heeded Judge Sporkin’s advice and has gone on to file several lawsuits essentially identical to the present one. See, e.g., Richardson, 2005 WL 711839, at *1. And he has in fact been the subject of sanctions by the Court of Appeals for the District of Columbia Circuit. (Ex. C, Order dated March 25, 1999 from the United States Court of Appeals for the District of Columbia Circuit) (court concluded that plaintiff’s “repeated attempts to litigate claims concerning his disbarment proceedings in the federal courts even though the federal courts lack jurisdiction . . . warrants sanctions [in the amount of $300.00] . . . .”). 5 Plaintiff has not attempted to effect proper service on the United States. And, at this time, the time in which to effect proper service has expired. Although Plaintiff is proceeding pro se, he is an attorney and, whether proceeding pro se or not, he is required to comply with the Federal Rules of Civil Procedure, including those rules pertaining to proper service. Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). Accordingly, dismissal for failure to effect proper service is necessary. Paolone v. Mueller, No. Civ.A. 05-2300, 2006 WL 2346448, at *3 (D.D.C. Aug. 11, 2006) (dismissing claims against individually named defendants based on pro se plaintiff’s failure to effect proper service). Furthermore, as discussed below, because Plaintiff’s lawsuit is completely lacking in merit, dismissal should be with prejudice. See, e.g., Whitehead v. Carroll & Graf. Publishers, Inc., No. Civ.A. 098-0202, 1999 WL 33409937, at *1 (D.D.C. Dec. 8, 1999) (dismissing pro se complaint with prejudice for failure to serve the defendants in light of plaintiff’s “false representations to the Court . . . .”).5 II. PLAINTIFF HAS FAILED TO ASSERT A COGNIZABLE CLAIM FOR RELIEF. His failure to properly serve the federal defendant aside, dismissal of Plaintiff’s complaint is warranted on several additional grounds. First, Plaintiff’s claims are clearly barred by the doctrines of res judicata and/or collateral estoppel. Second, Rule 60(b) does not afford Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 7 of 19 In addition to the res judicata bar to count one, count one is also barred because it is in6 reality a successive habeas petition that is barred by 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed). 6 this Court with jurisdiction over count one and, even if it did, Plaintiff’s request for relief under that rule is untimely. And third, count two of Plaintiff’s complaint is also untimely and Plaintiff fails to state a claim for relief against CSOSA. For these reasons, Plaintiff’s complaint must be dismissed. A. Plaintiff’s Claims Are Barred by the Doctrines of Res Judicata and Collateral Estoppel. As Plaintiff’s complaint readily admits, he seeks to reinstate his prior “habeas corpus petition dismissed by the district court on July 11, 2001 . . . .” Compl. ¶ 5. Under the doctrine of res judicata, or claim preclusion, Plaintiff cannot re-litigate a claim that a court has already decided. However, even if res judicata is not a complete bar in this case, Plaintiff is barred from obtaining relief by the doctrine of collateral estoppel. 1. Res Judicata Bars this Action. Plaintiff’s claim is barred by res judicata because Plaintiff, by his own admission, has already litigated his habeas claim and the court dismissed the claim. This Court need not delve too deeply into Plaintiff’s claim in count one because Plaintiff clearly states he is attempting to “reinstate” his prior habeas action. (Compl. ¶ 5). In count two, Plaintiff argues that his civil6 rights have been violated because the defendants engaged in a “conspiracy” to deprive him “of his due process rights and rights to equal protection of the law or of the equal privileges and immunities under law . . . .” (Compl. ¶ 72). Specifically, Plaintiff states, the “June 1995 and March 1996 interim suspension orders and the April 1997 final order of suspension were Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 8 of 19 7 rendered in violation of the plaintiff’s due process and equal protection rights . . . .” (Compl. ¶ 90). It is clear that Plaintiff’s allegations in count two are yet another poorly veiled attempt to challenge the discipline imposed upon him by the District of Columbia Court of Appeals. However, as argued persuasively by the District of Columbia defendants, Plaintiff’s allegations seeking to challenge the imposition of discipline by the District of Columbia Court of Appeals has been litigated on several occasions. (Motion to Dismiss filed by defendants D.C. Board on Professional Responsibility, Wallace Eugene Shipp, Jr., Leonard H. Becker, Catherine Kello, Lalla Shishkevish, and Elizabeth Branda (“D.C. Defendants”) at 10). And, in each case, the court has concluded that “federal district courts lack jurisdiction to hear challenges to the attorney disciplinary proceedings of state courts.” Richardson, 962 F. Supp. at 1; see also Richardson v. District of Columbia Court of Appeals, 83 F.3d 1513 (D.C. Cir. 1996); see also Richardson, 962 F. Supp. at 1 (noting that “[p]laintiff previously challenged the constitutionality of his temporary suspension before Judge Hogan . . . [who] dismissed Plaintiff’s claim because federal district courts lack jurisdiction to hear challenges to the attorney disciplinary proceedings of state courts[,]” and dismissing plaintiff’s renewed challenge to his temporary suspension). The above facts reveal that Plaintiff’s complaint in this action is barred by res judicata. Res judicata, or claim preclusion, holds that “a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979). The doctrine of res judicata is designed “[t]o preclude parties from contesting matters that they have had a full and fair opportunity to litigate . . . .” Montana v. United States, 440 U.S. 147, 153-54 (1979) (internal Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 9 of 19 And, as discussed more fully infra, in count two Plaintiff does not make any allegations7 concerning the federal defendant’s involvement in any alleged “conspiracy” to violate his rights. 8 quotation marks omitted). Four factors must exist in order for res judicata to bar an action: (1) there must be an identity of parties in both suits; (2) a judgment rendered by a court of competent jurisdiction; (3) a final judgment on the merits; and (4) identity of the cause of action in both suits. See American Forest Res. Council v. Shea, 172 F. Supp. 2d 24, 29 (D.D.C. 2001) (citing Paley v. Estate of Ogus, 20 F. Supp. 2d 83, 96 (D.D.C. 1998)); McCreary v. Potter, 273 F. Supp. 2d 106, 113 (D.D.C. 2003). Each of these factors is present in the instant case, and thus Plaintiff’s claim should be barred. First, regarding the parties named in this lawsuit, it is clear that the federal defendant was named as a defendant in the prior case.7 Second, the United States District Court for the District of Columbia had jurisdiction over Plaintiff’s prior habeas petition 28 U.S.C. § 2254. Therefore, this element of res judicata is met. Third, Judge Robertson’s dismissal of Plaintiff’s prior habeas claim qualifies as a final judgment on the merits. The Court dismissed Plaintiff’s previous habeas petition primarily because (1) Plaintiff was not “in custody” are required by 28 U.S.C. § 2241(C)(3) as “[c]ivil orders and penalties” do not satisfy the “in custody requirement; (2) the court “lack[ed] jurisdiction to review decisions of the D.C. Court of Appeals imposing interim suspension orders and upholding civil contempt proceedings[,]”; and (3) Plaintiff’s due process rights had not been violated. (Compl. Ex. A, at i-iii). After seeking, and being denied, reconsideration by Judge Robertson, Plaintiff appealed this ruling and the appellate court dismissed Plaintiff’s appeal. Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 10 of 19 He also again challenges the constitutionality of the District of Columbia Bar rules, a8 challenge Judge Hogan previously rejected and which was affirmed by the circuit court. Richardson v. District of Columbia Court of Appeals, 83 F.3d 1513, 1515-16 (D.C. Cir. 1996). 9 (See Ex. A.) Thus, the court’s dismissal with prejudice of Plaintiff’s prior claim was final and on the merits. Finally, concerning the fourth factor, Plaintiff’s prior and present claims originate from the identical cause of action and thus the fourth element of res judicata is satisfied. For two cases to have an identity of cause of action, they must share the same “nucleus of facts.” Velikonja v. Ashcroft, 355 F. Supp. 2d 197, 200-01 (D.D.C. 2005) (citing Apotex, Inc. v. FDA, 393 F.3d 210, 217-18 (D.C. Cir. 2004)), aff’d in part, rev’d on other grounds in part, 2006 WL 2946379 (D.C. Cir. Oct. 17, 2006). In conducting its inquiry into this element, the Court considers “whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understandings or usage.” Id. (citations omitted). It is readily apparent that Plaintiff’s current claims arise from the same set of facts as his prior habeas claim. In fact, he seeks to reinstate that prior action as well as continue to challenge the District of Columbia Court of Appeal’s suspension of his right to practice law. Clearly,8 Plaintiff’s two complaints share the same “nucleus of facts,” Velikonja, 355 F. Supp. 2d at 200- 01, which, in this case, relate to the decision of the District of Columbia Court of Appeals to suspend him from the practice of law. For these reasons, Plaintiff’s complaint is barred by the doctrine of res judicata. 2. Plaintiff’s Action is Barred by Collateral Estoppel. In addition to the res judicata bar on Plaintiff’s claims, the doctrine of collateral estoppel, Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 11 of 19 10 or issue preclusion, also prohibits Plaintiff from re-litigating his claims raised in his prior complaint. The application of collateral estoppel “represents a decision that the needs of judicial finality and efficiency outweigh the possible gains of fairness or accuracy from continued litigation of an issue that previously has been considered by a competent tribunal.” Nasem v. Brown, 595 F.2d 801, 806 (D.C. Cir. 1979) (citation omitted). The application of this doctrine thereby serves to relieve parties of the burdens of attending to multiple lawsuits, conserves judicial resources, provides finality in the resolution of disputes, and minimizes the risk of forum-shopping, piecemeal litigation, and inconsistent decisions. See, e.g., United States v. Mendoza, 464 U.S. 154, 158 (1984); Cutler v. Hayes, 549 F. Supp. 1341, 1343 (D.C. Cir. 1982). “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments, § 27 (1981); see also Consolidated Edison Co. of N.Y., Inc., v. Bodman, 449 F.3d 1254, 1258, 1260 (D.C. Cir. 2006) (holding that the plaintiff’s previous complaint already addressed the issue posed in the latter case); Fogg v. Ashcroft, 254 F.3d 103, 111 (D.C. Cir. 2001) (remanding equitable claims to the district court to consider the application of issue preclusion). In dismissing Plaintiff’s prior habeas action, Judge Robertson concluded that “[t]he writ of habeas corpus shall not extend to a prisoner unless ‘[h]e is in custody in violation of the Constitution or laws or treaties of the United States.’” (Compl, Ex. A, at ii (citations omitted). Judge Robertson concluded that “[c]ivil orders and penalties do not satisfy this requirement . . . .” (Id.). Nor did “the interim suspension and civil contempt proceedings” satisfy as the basis for Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 12 of 19 11 a habeas challenge. (Id.). Judge Robertson also concluded that Plaintiff’s due process rights had not been violated as it concerned his criminal contempt proceedings. (Id. at iii). As it concerns his claims that his civil rights were violated in conjunction with the discipline that has been imposed on him by the District of Columbia Court of Appeals, Plaintiff never asserted such claims against the federal defendant, although he was free to make such allegations. However, it has been repeatedly held that the courts do not have jurisdiction to review decisions of the District of Columbia Court of Appeals. Richardson, 2005 WL 711839, at *1 (“Under the Rooker-Feldman doctrine, federal courts lack jurisdiction to review judicial decisions by state or District of Columbia courts, as well as claims inextricably intertwined with such decisions.”) (citations omitted). See also Richardson, 962 F. Supp. at 1 (dismissing Plaintiff’s complaint challenging his temporary suspension from the District of Columbia bar); Richardson, 2005 WL 711839, at *2 (dismissing Plaintiff’s “fourth lawsuit” in which he “attempt[ed] to challenge his suspension from the practice of law by the District of Columbia Court of Appeals” and noting that Plaintiff’s “attempt to refashion his suit [was] nothing short of frivolous.”). As the Court of Appeals for the District of Columbia Circuit clearly held in dismissing Plaintiff’s prior lawsuit: Richardson’s attacks on § 11(d)’s [the District of Columbia Bar Rule permitting his suspension] constitutionality . . . are not merely intertwined with his attack on the decision to suspend him but are one and the same -- namely that application of § 11(d)’s procedures (or lack of procedures) deprives him of his liberty interest in the practice of law without due process. His attack on the rule cannot be contemplated without his attack on his suspension. Richardson v. District of Columbia Court of Appeals, 83 F.3d 1513, 1515-16 (D.C. Cir. 1996). Several courts have previously determined that Plaintiff could not proceed with his action Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 13 of 19 12 challenging his suspension because “federal district courts lack jurisdiction to review judicial decisions by state and District of Columbia courts.” Richardson, 83 F.3d at 1514 (citing District of Columbia v. Feldman,460 U.S. 462, 476 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 315 (1923)). It is clear that Plaintiff here again seeks to have this court review and nullify the judicial decision of the District of Columbia Court of Appeals. See Compl. ¶ 94 (seeking to “[e]njoin the District of Columbia Court of Appeals from denying Richardson reinstatement as an active member of the D.C. Bar . . . .”). Despite cloaking his complaint with allegations of civil conspiracy and due process rights violations, it is clear that Plaintiff’s claims are in essence seeking the relief he has sought many times before. In light of the Court’s prior ruling that Plaintiff could not proceed with his claim based on the Rooker-Feldman doctrine and its progeny, the doctrine of collateral estoppel precludes Plaintiff from re-litigating that issue in a subsequent forum. B. Plaintiff Has Not Stated a Proper Claim for Relief Under Rule 60(b) in Count I of the Complaint. Assuming arguendo that this case was properly before the Court, Plaintiff’s request for relief under Rule 60(b) of the Federal Rules of Civil Procedure is faulty for two reasons. First, that rule cannot provide an independent basis for this Court’s exercise of jurisdiction over Plaintiff’s claims. And second, even if it could, Plaintiff has failed to file his request for relief under this rule timely. For these reasons, count one must be dismissed. Plaintiff has premised this Court’s jurisdiction over count one of his complaint on Federal Rule of Civil Procedure 60(b), which he contends “permit[s] the court to vacate judgments under certain enumerated circumstances . . . .” (Compl. ¶ 7). Relying on this rule, Plaintiff seeks to have this Court reinstate his prior habeas corpus petition that was dismissed by Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 14 of 19 13 Judge Robertson in 2001. Plaintiff does not explain how this Court may exercise jurisdiction to review the decision of another equal member of this Court. More troubling, Plaintiff does not explain how Rule 60(b) vests this Court with subject matter jurisdiction over his claim in count one. Federal Rule of Civil Procedure 60(b) sets forth the procedure by which a party may petition the court to “relieve a party or a party’s legal representative from a final judgment, order, or proceeding . . . .” However, “[j]urisdiction . . . is not derived from Rule 60(b) itself . . . .” In re Hunter, 66 F.3d 1002, 1005 (9th Cir. 1995). Rather, “[f]or a federal court to have subject matter jurisdiction to hear an independent action there must be some statutory or constitutional basis for its jurisdiction.” Id.; see also Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 70 (2d Cir. 1990) (rejecting plaintiff’s attempt to premise jurisdiction on various violations of the federal rules of civil procedure because these rules “do not provide an independent ground for subject matter jurisdiction over an action for which there is no other basis for jurisdiction.”) (citation omitted); Fed. R. Civ. P. 82 (“These rules shall not be construed to extend or limit the jurisdiction of the United States district courts . . . .”). Furthermore, assuming he has set forth a cognizable basis of jurisdiction under Rule 60(b), Plaintiff’s request for relief pursuant to that rule is untimely. Federal Rule of Civil Procedure 60(b) provides that a motion seeking relief on the basis of “newly discovered evidence” or “fraud” must be “made . . . not more than one year after the judgment, order, or proceeding was entered or taken.” Fed. R. Civ. P. 60(b). Plaintiff’s prior habeas action was dismissed by Judge Robertson on July 11, 2001. (Ex. A). However, he did not file this action until over five years later, on September 28, 2006. Therefore, this action is not timely and must Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 15 of 19 14 be dismissed. C. Count Two of the Complaint Fails to Allege a Cognizable Claim. In count two of his complaint, Plaintiff makes allegations that various members of the D.C. Bar counsel’s office conspired to deprive Plaintiff of his due process rights, and that the manner in which the disciplinary orders were issued against him violated his rights. (Compl. ¶ 90). Plaintiff also contends that the penalties imposed upon him “- eleven plus (11+) years of law license suspension and probation for two years as a convicted criminal -” violates his due process rights because “non-Africanic persons of other religious persuasions and in large law firms have never suffered for similar misconduct . . . .” (Id. ¶ 91). The basis for Plaintiff’s claims in count two is 42 U.S.C. § 1985(2). The elements of a civil conspiracy consist of “(1) an agreement between two or more persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; (4) which overt act was done pursuant to and in furtherance of the common scheme.” Sculimbrene v. Reno, 158 F. Supp. 2d 8, 16 (D.D.C. 2001) (citation omitted). Plaintiff must allege that there was a “‘meeting of the minds’ as to some improper purpose, as it is an essential element of a conspiracy claim under Section 1985.” Id. (citations omitted). Nowhere in his complaint does Plaintiff allege that the federal defendant agreed with the other defendants to engage in an unlawful act; nor does he allege that there was a “meeting of the minds” on the part of the federal defendant to allegedly conspire to violate Plaintiff’s civil rights. Indeed, at no time during his recitation of the litany of offenses that have allegedly been committed against him does Plaintiff allege how the federal defendant was actually a part of any alleged “conspiracy” or violated Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 16 of 19 15 Plaintiff’s due process rights. It appears that, aside from the fact that Plaintiff seeks to re-instate his prior habeas petition, which named the federal defendant as the party defendant, count two of Plaintiff’s complaint points to no specific activities on the part of the federal defendant that have given rise to Plaintiff’s alleged due process rights violations. Therefore, dismissal is warranted. See, e.g., Bennett v. Stephens, No. Civ.A. 88-2610, 1989 WL 17751, at *3 (D.D.C. Feb. 23, 1989) (holding that plaintiff failed to state a claim under 42 U.S.C. § 1985 where plaintiff had not “set forth . . . facts tending to show how defendants, in carrying out their official duties, were in reality furthering an alleged conspiracy against plaintiff.”). Even assuming the Court found that Plaintiff had asserted a proper claim under section 1985, the time in which to bring that action has long expired. Because the statute does not contain its own limitations period, “the analogous local limitations period is grafted on as a general rule.” Sculimbrene, 158 F. Supp. 2d at 15 n.3 (citations and internal quotation marks omitted). Pursuant to D.C. Code section 12-301(8), there is a three year statute of limitations applied in actions where a limitations period has not been provided. D.C. Code § 12-301(8); see also Fitzgerald v. Seamans, 553 F.2d 220, 223 n.3 (D.C. Cir. 1977) (applying three year statute of limitations period to section 1985 claims). In his complaint, Plaintiff contends that the “[e]vents underlying [his] claims occurred between 1992 to date.” (Compl. ¶ 75). However, the final order of suspension was rendered in April 1997 (id. ¶ 90), almost ten years ago. Clearly, the events giving rise to Plaintiff’s claims in count two arose almost a decade ago and any claims he seeks to assert pursuant to section 1985 are barred by the statute of limitations applicable to such actions. Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 17 of 19 16 CONCLUSION For the reasons set forth above, dismissal of this Complaint is warranted. Respectfully submitted, /s/ Jeffrey A. Taylor JEFFREY A. TAYLOR, D.C. BAR # 498610 United States Attorney /s/ Rudolph Contreras RUDOLPH CONTRERAS, D.C. BAR # 434122 Assistant United States Attorney /s/ Michelle N. Johnson MICHELLE N. JOHNSON, D.C. BAR # 491910 Assistant United States Attorney United States Attorney's Office Civil Division 555 4th Street, N.W. - Room E4212 Washington, D.C. 20530 (202) 514-7139 COUNSEL FOR DEFENDANT COURT SERVICES AND OFFENDER SUPERVISION AGENCY Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 18 of 19 17 CERTIFICATE OF SERVICE I hereby certify that the foregoing Defendant’s Motion to Dismiss was served via U.S. Mail, first class postage prepaid, addressed to: T. Carlton Richardson 1505 Pennsylvania Avenue, SE Washington, DC 20003 on this 28th day of February, 2007. /s/ MICHELLE N. JOHNSON Case 1:06-cv-01665-RJL Document 25 Filed 02/28/2007 Page 19 of 19 Case 1:06-cv-01665-RJL Document 25-2 Filed 02/28/2007 Page 1 of 6 Case 1:06-cv-01665-RJL Document 25-2 Filed 02/28/2007 Page 2 of 6 Case 1:06-cv-01665-RJL Document 25-2 Filed 02/28/2007 Page 3 of 6 Case 1:06-cv-01665-RJL Document 25-2 Filed 02/28/2007 Page 4 of 6 Case 1:06-cv-01665-RJL Document 25-2 Filed 02/28/2007 Page 5 of 6 Case 1:06-cv-01665-RJL Document 25-2 Filed 02/28/2007 Page 6 of 6 Case 1:06-cv-01665-RJL Document 25-3 Filed 02/28/2007 Page 1 of 4 Case 1:06-cv-01665-RJL Document 25-3 Filed 02/28/2007 Page 2 of 4 Case 1:06-cv-01665-RJL Document 25-3 Filed 02/28/2007 Page 3 of 4 Case 1:06-cv-01665-RJL Document 25-3 Filed 02/28/2007 Page 4 of 4 Case 1:06-cv-01665-RJL Document 25-4 Filed 02/28/2007 Page 1 of 2 Case 1:06-cv-01665-RJL Document 25-4 Filed 02/28/2007 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ T. CARLTON RICHARDSON, ) ) Plaintiff, ) Civil Action No.: 06-1665 (RJL) ) v. ) ) THE DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ) ) [PROPOSED] ORDER This matter having come before this Court on the motion of the defendant Court Services and Offender Supervision Agency (the federal defendant) for dismissal of plaintiff’s complaint, plaintiff’s opposition, if any, and defendant’s reply, if any, it is hereby ORDERED that the federal defendant’s motion to dismiss is hereby GRANTED. And it is further ORDERED that plaintiff’s complaint is dismissed with prejudice. SO ORDERED on this _____ day of _____________________, 2007. ___________________________________ UNITED STATES DISTRICT JUDGE Case 1:06-cv-01665-RJL Document 25-5 Filed 02/28/2007 Page 1 of 1