City of Chicago v. Foryoh, Prince ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2608
IN THE MATTER OF:
CITY OF CHICAGO
Petitioner.
____________
Petition for a Writ of Mandamus to the
United States District Court for the
Northern District of Illinois, Eastern Division.
____________
SUBMITTED AUGUST 1, 2007—DECIDED AUGUST 29, 2007
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
EVANS, Circuit Judges.
EASTERBROOK, Chief Judge. Prince Foryoh has filed
many frivolous civil suits. Most have been pursued
in forma pauperis, a status granted on the basis of repre-
sentations that both a district judge and this court have
concluded were designed to mislead. After losing these
suits, Foryoh failed to pay the costs awarded against him.
Judicial patience has limits, and earlier this year this
court directed Foryoh to pay what he owes, if he wishes to
continue litigating. We reproduce here the order in Foryoh
v. Banas, No. 06-3416 (7th Cir. Apr. 3, 2007). Although
that order was non-precedential under Circuit Rule 32.1,
we now give it precedential status and include it to avoid
any need for readers to consult multiple documents. Here
is the text of that order:
2 No. 07-2608
After he was convicted of harassment by tele-
phone, see 135 ILCS 135/101, Prince Foryoh filed
this suit under 42 U.S.C. §1983 against the officer
who arrested him, contending that the officer
lacked probable cause and employed excessive
force. The district court initially permitted Foryoh
to proceed in forma pauperis but later revoked
that permission and dismissed the suit under
28 U.S.C. §1915(e)(2)(A) after concluding that
Foryoh’s financial affidavit was false.
In another of Foryoh’s suits, his mother gave
testimony to the effect that she provides about
90% of his support—including meals, car, college
tuition, textbooks, and housing. Foryoh concedes
that his mother has provided (and continues to
provide) financial support but insists that she is
extending loans rather than making gifts. That is
not how his mother characterized things, but like
the district judge we need not resolve this intra-
familial dispute. Foryoh did not report the value of
these “loans” on his affidavit and other filings. In
response to a question whether he had received
more than $200 from any source in the preceding
year, Foryoh neglected to mention his mother’s
assistance. So his application for leave to proceed
in forma pauperis had a material omission and
may well have been perjurious.
Foryoh must pay the full filing and docket fees for
both the complaint in the district court and the
appeal taken to this court. Moreover, by attempt-
ing to deceive the district court he has forfeited the
privilege of proceeding in forma pauperis in any
case until he had paid, in full, all outstanding fees
and costs for all of his lawsuits. (There are several
others.) See Campbell v. Clarke, 481 F.3d 967 (7th
Cir. 2007). Finally, for the reasons given in Camp-
No. 07-2608 3
bell, we will enter an order under Support Systems
International, Inc. v. Mack, 45 F.3d 185 (7th Cir.
1995), to remain in force until all fees and costs,
from all of Foryoh’s federal suits, have been paid.
In any application to this court to have the Mack
order lifted, Foryoh must provide (under oath) a
complete list of all of his federal suits and proof
that all of his financial obligations with respect to
these suits have been met.
Our reference to “another of Foryoh’s suits” was to
Foryoh v. DeJesus, No. 05 C 2341 (N.D. Ill.), where the
falsehoods came to light during discovery after the dis-
trict judge had allowed Foryoh to proceed in forma
pauperis and had recruited counsel to represent him.
When the deceit was discovered, the district judge revoked
forma pauperis status but allowed Foryoh to continue
litigating after he paid the filing fee. At the time of our
decision in Banas, Foryoh had yet another suit pending,
in which he has never paid the filing fee. Foryoh v. Kelly,
No. 06 C 1226 (N.D. Ill.).
Our formal order issued on April 4 and reads:
On April 3, 2007, this court ordered Prince Foryoh
to pay fees and costs from all of his federal suits.
Accordingly, IT IS ORDERED that the clerks of all
federal courts in this circuit are directed to return
unfiled any papers submitted either directly or
indirectly by or on behalf of Prince Foryoh in this
or any of his pending cases in this court or district
courts unless and until he pays in full all fees
and costs from all of his federal suits. See Support
Systems Int’l Inc. v. Mack, 45 F.3d 185, 186 (7th
Cir. 1995) (per curiam). In any application to this
court to have this order lifted, Foryoh must pro-
vide (under oath) a complete list of all of his
federal suits and proof that all of his financial
4 No. 07-2608
obligations with respect to these suits have been
met. In accordance with our decision in Mack,
exceptions to this filing bar are made for criminal
cases and for applications for writs of habeas
corpus. See id. at 186-87.
IT IS FURTHER ORDERED that Prince Foryoh is
authorized to submit to this court, no earlier than
two years from the date of this order, a motion to
modify or rescind this order.
Defendants in DeJesus and Kelly asked the district
judges to dismiss these suits unless Foryoh paid the
necessary fees and had this court lift the Mack order. The
judges referred the subject to the court’s Executive Com-
mittee, which concluded that Foryoh is entitled to con-
tinue litigating his pending suits notwithstanding our
order. This led the City of Chicago, on behalf of the
defendants (as its employees), to request clarification, and
on July 11, 2007, we issued the following order:
On April 4, 2007, this court issued an order direct-
ing the clerks of every court within this circuit to
return, unfiled, papers tendered by Prince Foryoh
in all civil litigation, until he has satisfied all
unpaid filing fees and sanctions. See Foryoh v.
Banas, No. 06-3416, relying on Support Systems
International, Inc. v. Mack, 45 F.3d 185 (7th Cir.
1995), and Campbell v. Clarke, 481 F.3d 967 (7th
Cir. 2007).
The City of Chicago, which represents not only
Banas but also the defendants in other cases that
Foryoh has filed, has asked us to “clarify” the
order. No clarification is necessary. The order as
written applies to all cases now pending or that
Foryoh seeks to file in the future. The goal of the
order is to prevent Foryoh from conducting any
litigation until all fees and sanctions in all of his
No. 07-2608 5
suits have been collected. If there are good reasons
to do otherwise, then the order should be modi-
fied—and on application to this court, rather than
by a district judge.
The City represents that, notwithstanding our
order, district judges are allowing Foryoh to
conduct litigation that was on file when our order
was issued. The City believes that this contradicts
our order. This argument is in the nature of a
request for mandamus. The “request for clarifica-
tion” therefore will be docketed as a petition for
a writ of mandamus.
Foryoh is given 14 days to show cause why a writ
of mandamus should not issue. (The clerk is
authorized to accept this response notwithstanding
the order of April 4, 2007.) The district judges
involved are invited to respond on the same sched-
ule, if they so desire. See Fed. R. App. P. 21(b)(4).
These responses may include, if Foryoh or the
district judges think it appropriate, a request that
this court modify the order of April 4, 2007. Coun-
sel for the City of Chicago then will have 7 days
to reply.
Both Foryoh and the Executive Committee have filed their
responses, and Chicago has filed a reply.
The Executive Committee informs us that the explica-
tion provided by our order of July 11 will lead it to stay
proceedings in Foryoh’s pending cases, but it asks us to
modify the order for two reasons: First, the Executive
Committee is concerned that our order of April 4 creates
“due process concerns"; second, the Executive Com-
mittee believes that a lengthy stay in Foryoh’s suits will
prejudice the defendants, who may be called on to litigate
several years in the future. For his part, Foryoh contends
that the City has not met the high burden of showing an
6 No. 07-2608
entitlement to mandamus, because the district judges
might choose to ignore the Executive Committee’s earlier
directive in favor of the view articulated by our order of
July 11. Foryoh also asks for a modification of the April 4
order to allow him to continue litigating without paying
accumulated filing fees and costs.
We see no need to modify our order’s main components.
Foryoh has filed frivolous suits and attempted to defraud
both the judiciary and his opponents. The remedy we
prescribed—that Foryoh pay accumulated filing fees and
costs, plus any sanctions that may have been imposed
in earlier suits, as a condition of further litigation—is a
modest one. We did not impose a new monetary sanction,
let alone one beyond Foryoh’s means. All we required is
that Foryoh meet the financial obligations that he has
incurred by virtue of his past litigation.
Orders of the kind we entered are consistent with the
Constitution. See In re Skupniewitz, 73 F.3d 702 (7th Cir.
1996). Foryoh is bound in personam by the adverse
decision in Banas. The due process clause entitles every
litigant to a full and fair opportunity to be heard; it does
not entitle anyone to be heard on the same question
over and over. The law of preclusion (res judicata and
collateral estoppel) rests on the proposition that once is
enough. Foryoh litigated and lost in Banas on two ques-
tions: (a) whether he had tried to deceive the federal
judiciary through misleading requests to proceed in forma
pauperis; and (b) the consequence of that deceit. He is
not entitled to continue litigating other suits without
paying the filing fees and costs required by our order of
April 4, 2007.
As for potential prejudice to the defendants from indefi-
nite delay: We don’t understand why delay should ensue.
Foryoh must meet the normal schedule for civil litiga-
tion. If he fails to do so because his refusal to pay accumu-
No. 07-2608 7
lated filing fees and costs means that our order of April 4
remains in effect, then his suits must be dismissed for
want of prosecution. Defendants are entitled to judgment
with prejudice in their favor.
There is one respect on which our order of April 4 may
be ambiguous. The reference to an application after two
years means that Foryoh may ask for the order to be
modified or lifted after that time even if, despite his best
efforts, he has been unable to pay in full—because, for
example, his mother has stopped supporting him and he
has no other income. Once he has paid what he owes,
however, Foryoh is entitled to have the order lifted
immediately. That’s how Mack orders are supposed to
work. A Mack order bans litigation until whatever is due
(sanctions or unpaid filing fees) has been paid; the two-
year clause is designed to afford the litigant an opportu-
nity for another look if there is a good reason—one other
than obstinacy or a desire to file another frivolous
suit—for nonpayment.
So the order is modified to provide that it may be lifted
immediately on full payment but otherwise is reaffirmed.
Given the Executive Committee’s promise to follow this
court’s guidance, we need not issue a formal writ of
mandamus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-29-07