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McMillian v. Hollinger

United States District Court, Middle District of Pennsylvania

June 11, 2014

CORLIVEETHO MCMILLIAN, Plaintiff,
v.
GARY HOLLINGER, Defendants.

Chief Judge Conner

REPORT AND RECOMMENDATION

MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE

I. Statement of Facts and of the Case.

As a pro se litigant Corliveetho McMillian has a penchant for ignoring court orders, discounting deadlines, and failing to file pleadings. In McMillian’s prior lawsuit, McMillian v. Walsh, Civil No. 1:11-CV-2223, he was frequently cited for these shortcomings and was repeatedly warned that the failure to follow court instructions could have adverse consequences for this litigant. Despite the plaintiff’s repeated procedural failings, in the final analysis, however, McMillian’s complaint in McMillian v. Walsh, Civil No. 1:11-CV-2223, failed for a much more fundamental reason: It was patently without merit.

Undeterred by this failure, McMillian has now filed the instant lawsuit which attempts to profit from his penchant for procedural tardiness. Ignoring his own failings, McMillian alleges that his prior lawsuit was dismissed because the clerk’s office did not timely accept a single brief submitted by the plaintiff for filing. (Doc. 1.) On the basis of this claim, which is thoroughly rebutted by the actual court record in McMillian v. Walsh, Civil No. 1:11-CV-2223, McMillian now sues the Acting Clerk of Court, Gary Hollinger, alleging that he was denied his right of access to the courts and seeking $500, 000 in compensatory and punitive damages. (Id.)

Along with his complaint, McMillian has filed a motion for leave to proceed in forma pauperis. (Doc. 6.) For the reasons set forth below, we will grant McMillian leave to proceed in forma pauperis, but as part of our legally-mandated screening review we find that the plaintiff has failed to state a claim upon which relief may be granted. Therefore, we recommend that the Court dismiss this complaint for failure to state a claim upon which relief can be granted.

In considering the claims made in the instant lawsuit, it is necessary to also examine the court record in McMillian’s prior case, McMillian v. Walsh, Civil No. 1:11-CV-2223, since the plaintiff’s claim against the Acting Clerk of Court in this case directly arises out of this prior lawsuit. In his current complaint, McMillian recites a fragmentary, incomplete, and inaccurate history of this prior litigation, reciting only that he had a November 2013 filing deadline in McMillian v. Walsh, Civil No. 1:11-CV-2223 which he alleges he missed when the clerk’s office refused to accept a prolix pleading for filing. (Doc. 1.)[1] Without further explanation, McMillian then attributes the failure of his claims in McMillian v. Walsh, Civil No. 1:11-CV-2223 exclusively to this clerical action, which he characterizes as a denial of his right of access to the courts. (Id.)

The problem with this assertion is that it is simply, and completely, refuted by the undisputed court record in McMillian v. Walsh, Civil No. 1:11-CV-2223. In fact, McMillian’s complaint ignores both the prelude and the post script to this November 2013 episode, events which completely undermine his claims in the instant lawsuit.

By way of prelude, the docket in McMillian’s prior lawsuit reveals that we had been compelled to repeatedly cite McMillian for his wholesale failure to file briefs as directed by the court. McMillian v. Walsh, Civil No. 1:11-CV-2223 (Docs. 128, 147.) In September 2013, the defendants filed a summary judgment motion in McMillian v. Walsh, Civil No. 1:11-CV-2223. (Doc. 130.) On the eve of his deadline for responding to this dispositive motion McMillian tried to avoid addressing the motion by suggesting that he wished after years of litigation to further refine and amend his complaint, (Doc. 138), a request which the court denied. (Doc. 139.) We then extended the deadline for McMillian’s response to the summary judgment motion for an additional month, to mid-November 2013. McMillian v. Walsh, Civil No. 1:11-CV-2223 (Doc. 139.)

McMillian failed to meet this response deadline, but instead sought yet another two-week extension of time in which to respond to this dispositive motion. McMillian v. Walsh, Civil No. 1:11-CV-2223 (Doc. 142.) We granted this request, providing McMillian with a third deadline for responding to this motion of November 27, 2013. McMillian v. Walsh, Civil No. 1:11-CV-2223 (Doc. 144.) When this deadline passed without any action by McMillian, we then waited three more weeks for a response or further request for additional time from McMillian. When no response or request for extension of time was forthcoming, on December 19, 2013 we filed a Report and Recommendation which recommended dismissal of McMillian’s complaint. McMillian v. Walsh, Civil No. 1:11-CV-2223 (Doc. 149.) This Report and Recommendation noted McMillian’s many procedural failings, but ultimately rested upon a more fundamental consideration. Our careful analysis of McMillian’s legal claims in light of the uncontested evidence, which included a video of McMillian’s cell extraction, revealed beyond any doubt that McMillian’s claims were wholly frivolous and entirely lacking in merit. (Id.)

McMillian only stirred himself to action after this Report and Recommendation was filed, when on December 23, 2013, he belatedly filed a motion for extension of time in which to respond to this summary judgment motion. McMillian v. Walsh, Civil No. 1:11-CV-2223. (Doc. 150.) That motion for extension of time was granted by the district court, and McMillian was provided the opportunity to file a brief opposing this summary judgment motion on or before January 24, 2014. McMillian v. Walsh, Civil No. 1:11-CV-2223 (Doc. 151.) McMillian then ignored this deadline, and failed to comply with the extended filing deadline which he sought and obtained from the court. In the wake of this failure by McMillian, on January 28, 2014, the district court adopted the Report and Recommendation and dismissed McMillian’s complaint. McMillian v. Walsh, Civil No. 1:11-CV-2223 (Docs. 153 and 154.) Like our Report and Recommendation, the district court’s opinion expressly and carefully considered the merits of McMillian’s claims and found that those claims failed as a matter of law. (Id.)

Thus, it is against this backdrop, which demonstrates that McMillian’s claims in McMillian v. Walsh, Civil No. 1:11-CV-2223failed due to a total lack of merit, that we consider the instant complaint which seeks to blame the failure of McMillian’s prior lawsuit upon the Acting Clerk of Court.

II. Discussion

A. Screening of Pro Se Complaints–Standard of Review

This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis in cases which seek redress against government officials. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, when reviewing in forma pauperis complaints, 28 U.S.C. § 1915(e)(2)(B)(ii) specifically enjoins us to “dismiss the complaint at any time if the court determines that . . . the action . . . fails to state a claim upon which relief may be granted.” ...


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