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Conklin v. Warrington Township


June 30, 2006


The opinion of the court was delivered by: (Judge Conner)


Presently before the court is a motion (Doc. 29) and brief in support thereof (Doc. 30) filed by Don Bailey, Esquire ("Attorney Bailey"), counsel for plaintiff, to vacate an order of this court that dismissed certain claims from the above-captioned case. For the reasons that follow, the court will direct Attorney Bailey to show cause why he should not be sanctioned for these inappropriate submissions.

The complaint in this case was filed by Attorney Bailey in August 2005. (See Doc. 1.) Brought pursuant to 42 U.S.C. § 1983, the complaint vaguely alleged that the plaintiff's constitutional rights were violated by the unlawful application of local zoning ordinances.*fn1 It averred that plaintiff was "forced to attend" a hearing before the local zoning board, during which a solicitor for the municipality purportedly made a racist remark, referring to "little children of color" who visited plaintiff's property as "those people." (Doc. 1 ¶¶ 7, 9.) It alleged that the presiding officer of the hearing failed to address this remark, and that a stenographer omitted the remark from a transcript of the proceeding. (See Doc. 1 ¶ 11.) According to the complaint, these facts demonstrated that the ordinances at issue were applied to plaintiff solely "for racial purposes," and resulted in the denial of plaintiff's right to a fair hearing, violated plaintiff's rights to substantive and procedural due process, and violated plaintiff's "rights pursuant to the Sixth[,] Seventh and 14th amendments to a verbatim transcript of the hearing." (Doc. 1 ¶¶ 11, 13, 14, 15.) The complaint named as defendants the stenographer, an unknown "John Doe" who directed the stenographer to delete the comment from the transcript, the municipality and its zoning board. (See Doc. 1.)

Defendants moved to dismiss the complaint. The stenographer argued that the complaint failed to state a claim against her because there is no constitutional right to a verbatim transcript of zoning proceedings. (See Docs. 7, 15.) The municipality and its zoning board argued that plaintiff's claims were previously litigated before a state court,*fn2 and are therefore barred by the doctrines of collateral estoppel and res judicata. (See Docs. 7, 15.)

By order of court dated May 16, 2006 (Doc. 28), the court engaged in a measured*fn3 review of the complaint and granted in part and denied in part the motions to dismiss. With respect to the alleged altered transcript, the court found that because the complaint did not aver a harm arising therefrom, it was insufficient to support a constitutional claim. See Carpenter v. Vaughn, 229 F.3d 138, 155 (3d Cir. 2002) ("[A defendant's] constitutional rights would be violated only if inaccuracies in the transcript adversely affected the outcome of the criminal proceeding."). Accordingly, the court dismissed this claim, but granted plaintiff leave to file an amended complaint that "set[s] forth with specificity the facts and legal theories supporting any claims relating to the alleged alteration of the hearing transcript." (See Doc. 28 at 4.) With respect to the prior state court proceedings, the court held that application of the doctrine of res judicata could not be resolved in the context of Rule 12(b)(6). See Pryor v. Nat'l Collegiate Athletic Assoc., 288 F.3d 548, 560 (3d Cir. 2002) ("Documents that the defendant attaches to the motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the claim . . . .").

The complaint made broad allegations of racial animus,*fn4 but failed to link the vague factual averments*fn5 with specific constitutional deprivations requisite for a § 1983 cause of action.*fn6 Importantly, although the court could not decipher the precise constitutional underpinnings of plaintiff's claims, it liberally construed the same and granted plaintiff leave to amend the complaint. See, e.g., McLaughlin v. Watson, 271 F.3d 566, 569 n.2 (3d Cir. 2001).

On May 24, 2006, Attorney Bailey filed the document sub judice, titled "Motion to Strike, Vacate and Reconsider the Court's May 16, 2006 Order." (Doc. 29.) The document expands on plaintiff's claims-tacitly acknowledging the complaint's lack of clarity-but also sets forth a barrage of ad hominem attacks upon the court. It accuses the court of incompetence,*fn7 deception,*fn8 and racism,*fn9 and otherwise reflects a complete lack of professionalism. A "brief in support" (Doc. 30), notwithstanding its specious disavowal of any disrespect, levels many of the same charges.*fn10 Neither document proffers any support for these allegations other than Attorney Bailey's disagreement with the court's prior decision.

Initially, the court could not conjure up a reason for Attorney Bailey's irrational and unprofessional submissions. However, upon further review, it is clear that Attorney Bailey filed these documents in a fit of pique over sanctions imposed upon him by the undersigned in an unrelated case. See Cornish v. Gosher, No. 1:04-CV-0232, Doc. 30 (M.D. Pa. Aug. 1, 2005) (order sanctioning Attorney Bailey pursuant to Rule 11 of the Federal Rules of Civil Procedure).*fn11 Indeed, the language employed by Attorney Bailey is borrowed directly from the order imposing sanctions,*fn12 and the instant submissions were filed on May 24, 2006, the same day that Attorney Bailey filed his certification of compliance with the order of sanctions.*fn13

These documents are but the latest of Attorney Bailey's unprofessional actions before this court. See Mitchell v. Guzick, No. 3:02-CV-0178, slip op. at 2 n.1 (M.D. Pa. July 26, 2004); Barshinger v. Buffington, No. 1:03-CV-0506, slip op. at 2 n.1 (M.D. Pa. June 10, 2004), aff'd, No. 04-2908 (3d Cir. Apr. 28, 2005); Boyer v. Barry, No. 1:03-CV-1368, slip op. at 1 n.1 (M.D. Pa. Feb. 24, 2004); see also Beam v. Bauer, 383 F.3d 106, 110 (3d Cir. 2004); Beam v. Bauer, No. 1:02-CV-1797 (M.D. Pa. Mar. 23, 2003) (Rambo, J.), aff'd, 88 F. App'x 523 (3d Cir. 2004); Beam v. Downey, 151 F. App'x 142, 144-45 (3d Cir. 2005); cf. Wyatt v. Keating, 130 F. App'x 511, 515 (3d Cir. 2005). It appears that they were filed for no purpose other than to impugn the integrity of the court in retaliation for the sanctions previously imposed.*fn14 Sanctions may again be warranted pursuant to Rule 11 of the Federal Rules of Civil Procedure, pursuant to the court's inherent power, or pursuant to the local rules of this court. See, e.g., Shea v. Donohoe Const. Co., 795 F.2d 1071, 1077 (D.C. Cir. 1986) (noting that sanctions are appropriate for "conduct that is disrespectful to the court"), cited with approval in Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1179 n.15 (3d Cir. 1993); see also L.R. 83.23.1. Accordingly, Attorney Bailey will be directed to show cause why he should not be sanctioned for filing these documents. The court will then determine whether and what sanctions should be imposed. Potential sanctions include: "striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs; ordering a fine payable to the court; [or] referring the matter to disciplinary authorities . . . ." See Fed. R. Civ. P. 11 advisory comm. notes-1993.*fn15

An appropriate order will issue.

CHRISTOPHER C. CONNER United States District Judge


AND NOW, this 30th day of June, 2006, upon consideration of the motion to vacate (Doc. 29) and brief (Doc. 30) in support thereof, filed by Don Bailey, Esquire, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that, on or before July 14, 2006, Don Bailey, Esquire shall file a response showing cause why sanctions should not be imposed for the apparent violations of Rule 11 of the Federal Rules of Civil Procedure identified in the accompanying memorandum.

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