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Conklin v. Kane

United States District Court, M.D. Pennsylvania

September 5, 2014



JUAN R. SNCHEZ District Judge.

This Memorandum addresses several motions filed by pro se Plaintiff Stephen G. Conklin in connection with a sanctions proceeding removed to this Court pursuant to 28 U.S.C. §§ 1442(a)(1), 1442(d)(1), and 1446. The underlying sanctions proceeding arises out of a lawsuit Conklin initiated in state court against Yvette Kane, a federal judge sitting in the Middle District of Pennsylvania, via a writ of summons.[1] Judge Kane's attorney at the time, Assistant United States Attorney (AUSA) Mark E. Morrison, removed the suit to federal court, but the case was later remanded because removal was premature. Following remand, Conklin moved for sanctions against Judge Kane and Morrison for, among other things, their role in removing the case. After the state court scheduled a hearing on the motion, Morrison removed the sanctions proceeding, and Conklin filed a timely motion to remand. Conklin later filed a motion for this Court's recusal. Having concluded there is no basis for recusal, the proceeding was removable under 28 U.S.C. § 1442, and the notice of removal was timely filed, this Court will deny Conklin's motions to recuse and remand. Moreover, because it is apparent from the record that Conklin's underlying motion for sanctions is meritless, it too will be denied.


Conklin is a frequent litigant in the Middle District of Pennsylvania, and has, over a number of years, been involved in multiple lawsuits presided over by Judge Kane. See, e.g., Conklin v. Purcell, Krug & Haller et al., No. 05-1726 (M.D. Pa. Aug. 23, 2005); Conklin v. Warrington Twp. et al., No. 06-2245 (M.D. Pa. Nov. 20, 2006); Conklin v. Anthou, No. 10-02501 (M.D. Pa. Dec. 7, 2010). In one of those cases, Conklin unsuccessfully sought Judge Kane's recusal, complaining that he and his attorney, Don Bailey, could not get a fair trial in the Middle District because of bias and prejudice against them. See generally Conklin v. Anthou, No. 10-02501, 2011 WL 1303299 (M.D. Pa. Apr. 5, 2011).

More recently, Conklin initiated the above-captioned action against Judge Kane by filing a writ of summons in the Dauphin County Court of Common Pleas on April 4, 2013. Service of the writ of summons was completed on May 24, 2013, but Conklin had still not filed a complaint or otherwise disclosed the nature of his suit by that date. On June 7, 2013, Morrison, acting on behalf of Judge Kane, removed the case to federal court, relying on the federal officer removal statute, 28 U.S.C. § 1442(a)(3). On August 27, 2013, Judge Timothy J. Savage, sitting by designation in the Middle District of Pennsylvania, remanded the case back to state court, concluding that because Conklin had not filed a complaint in state court, the district court could not confirm that reliance on the federal officer removal statute was appropriate. Judge Savage also observed the defendant had not filed a praecipe requesting the Prothonotary to issue a rule to file a complaint pursuant to Pennsylvania Rule of Civil Procedure 1037(a), and "[h]ad she done so, she would have forced Conklin to state what his claims are and what relief he is seeking." Mem. Op. 2 n.1, Conklin v. Kane, No. 13-01531 (M.D. Pa. Aug. 27, 2013), ECF No. 7.[2]

Once the case resumed in state court, Morrison filed a praecipe for a rule to file a complaint. Instead of filing the complaint and moving forward with the case, on October 31, 2013, Conklin filed a document titled "Plaintiff's Emergency Motion for Sanctions With Request for Hearing; Discovery." See Morrison's Brief in Opp'n to Pl.'s Emergency Mot. for Sanctions Ex. B (Sanctions Motion). The Sanctions Motion, which is the subject of the proceeding removed to this Court, was directed toward Judge Kane and Morrison. In it, Conklin argued Morrison was not authorized under the United States Attorney's Manual to represent Judge Kane in the state court action. He also maintained that removing the case before Conklin filed a complaint was an "egregious abuse of process" done for improper purposes to harass and intimidate Conklin and cause unnecessary delay and expense. Sanctions Motion 9. As sanctions, Conklin sought an injunction enjoining Morrison from representing Judge Kane and "punitive relief." In addition, Conklin argued Judge Kane should be estopped from obtaining judgment for failure to prosecute because Morrison never properly served the rule to file a complaint on Conklin, thus exempting him from any requirement to file a complaint in the action he initiated more than six months earlier.

Shortly before filing the Sanctions Motion in state court, Conklin, through his attorney Don Bailey, filed a complaint in the Middle District of Pennsylvania naming as defendants, among others, Judge Kane, Morrison, and Peter J. Smith, the United States Attorney for the Middle District of Pennsylvania. The complaint in this separate federal action, which is also before this Court, sets forth various constitutional violations and specifically alleges that "[b]y removing plaintiff's Writ the defendants illegally terminated plaintiff's state filed case unlawfully seeking to prevent his opportunity to preserve his rights and further seeking to put the control of the administration of his case directly in the most powerful prosecutorial office in the nation." Compl. ¶ 100, Conklin v. Kane, No. 13-2618, (M.D. Pa. Oct. 23, 2013).[3] With the Sanctions Motion pending and a complaint filed in federal court naming Morrison and Judge Kane as codefendants, Morrison withdrew his appearance as counsel for Judge Kane in the state court action, and private counsel entered his appearance for Judge Kane on November 15, 2013. On November 25, 2013, the Dauphin County Court issued an order scheduling a hearing on the Sanctions Motion for December 9, 2013. On December 6, 2013, Morrison filed a notice removing the sanctions proceeding to this Court pursuant to 28 U.S.C. §§ 1442(a)(1), 1442(d)(1), and 1446. On January 6, 2014, Conklin filed the instant motion to remand the sanctions proceeding back to state court.


Before turning to the merits of his other motions, this Court must address Conklin's motion for recusal. Conklin seeks recusal pursuant to 28 U.S.C. § 455(a), which requires a judge to disqualify himself when "a reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned." In re Kensington Int'l Ltd., 353 F.3d 211, 220 (3d Cir. 2003); accord United States v. Wecht, 484 F.3d 194, 213 (3d Cir. 2007). Ultimately, whether recusal is appropriate is dependent upon whether the judge harbors "a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994).

Conklin's chief complaint is what he refers to as the "inexcusable delay" associated with the time that has elapsed between his motion for remand and its disposition. He contends this Court is holding his case hostage for unspecified "nefarious purposes." Mot. to Recuse 6. Nothing in his motion, however, addresses how, if at all, this Court's impartiality might reasonably be questioned based on the delay Conklin perceives in adjudicating his motions. Conklin also neglects to mention his own responsibility for the delay about which he complains. Under the Middle District of Pennsylvania's Local Rules of Civil Procedure, a party has fourteen days after a filing a motion to file a brief in support. Conklin filed his motion for remand on January 6, 2014, and his supporting brief on January 22, 2014. After the opposition was filed on February 7, Conklin sought from this Court an extension of time to file a reply. This Court granted him an extension until March 10, 2014. During that same period, Judge Kane moved to dismiss the Sanctions Motion, which required another round of briefing. Conklin asked for another extension to respond to the motion to dismiss, which was also granted, extending his deadline to respond until April 14, 2014. Judge Kane then filed a reply on May 1. Because Conklin sought and received multiple extensions in connection with briefing these motions, any delay in resolving them is partially attributable to his own actions.[4] In any event, the manner in which a court controls its docket is discretionary. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982). Conklin's allegations of inexcusable delay therefore provide no grounds for recusal and his motion will be denied.[5]

Next, this Court must consider whether it may properly exercise removal jurisdiction over this proceeding. Removal to federal court under 28 U.S.C. § 1442(a)(1) is proper if the action is a "civil action" that is "directed to... any officer... of the United States... in an official or individual capacity, for or relating to any act under color of such office." Id. Section 1442(d)(1) clarifies that a "civil action" includes "any proceeding (whether or not ancillary to another proceeding) to the extent that in such proceeding a judicial order, including a subpoena for testimony or documents, is sought or issued." 28 U.S.C. § 1442(d)(1). Conklin directed the Sanctions Motion against Morrison, an officer of the United States, for acts taken as an AUSA representing a federal judge. Nevertheless, in his reply brief, Conklin challenges whether this proceeding is removable under § 1442, arguing Morrison was not acting "under color of such office" when he acted on behalf of Judge Kane because he did not have authority to do so in a state court proceeding not filed against her in her capacity as a federal judge.

To qualify for removal under § 1442, a federal officer must simply make an "adequate threshold showing" that the acts at issue were taken under color of office. Jefferson Cnty., Ala. v. Acker, 527 U.S. 423, 431-32 (1999).[6] This requirement is satisfied if the officer raises "a colorable assertion of causality between the charged conduct and the asserted official federal authority." In re Pennsylvania, No. 13-1871, 2013 WL 4193960, at *9 (E.D. Pa. Aug. 15, 2013) (citing Jefferson Cnty., 527 U.S. at 431-32). Though Conklin maintains Morrison essentially acted on his own and outside his capacity as a federal officer when representing Judge Kane, the Supreme Court has held that "[i]f the question raised is whether [federal officers] were engaged in some kind of frolic of their own' in relation to respondent, then they should have the opportunity to present their version of the facts to a federal, not a state, court." Willingham v. Morgan, 395 U.S. 402, 409 (1969). Here, Conklin moved for sanctions against Morrison for acts taken in his capacity as an AUSA representing a federal judge. This alone is more than sufficient to find the existence of removal jurisdiction under § 1442, a provision "which is broadly construed." Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994) (citing Kolibash v. Comm. on Legal Ethics of the W.Va. Bar, 872 F.2d 571, 576 (4th Cir. 1989)).[7]

The closer question is not a jurisdictional but a procedural one-whether Morrison timely filed his notice of removal pursuant to 28 U.S.C. § 1446(g). Conklin filed the Sanctions Motion, which gave rise to the removable proceeding, on October 31, 2013. He argues the notice of removal was untimely when filed on December 6, 2013-thirty-six days after the filing of the Sanctions Motion-because under § 1446, there is a thirty-day limit for filing a notice of removal. Morrison contends the notice of removal was timely under § 1446(g) because the thirty-day clock runs from the date he received notice of the order setting a hearing on the Sanctions Motion (which was issued on November 25, 2013), not the motion itself.

Under § 1446(g), in connection with a proceeding removable under § 1442(a) in which "a judicial order for testimony or documents is sought or issued or sought to be enforced, " the removing party may file a notice of removal "not later than 30 days after receiving, through service, notice of any such proceeding." 28 U.S.C. § 1446(g). Conklin's motion for sanctions sought the imposition of sanctions or, alternatively, a hearing, discovery, and an order to show cause why Judge Kane and Morrison should not be subject to sanctions. See, e.g., Sanctions Motion 1. Because Conklin's October 31, 2013, motion sought a judicial order for testimony or documents, the motion itself, which was served on Morrison, provided notice of a removable proceeding. Cf. In re ...

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