Howard v. United States Department of Education ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GREGORY T. HOWARD, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1633 (EGS/DAR)
)
UNITED STATES OF AMERICA, )
)
Defendant. )
)
MEMORANDUM OPINION AND ORDER
Plaintiff, having demonstrated a pattern of abusive filing,
is currently prohibited from filing any further documents in
this case without leave of Court. Mem. Op. and Order at 11–13,
ECF No. 71. Plaintiff violated that prohibition by filing a
motion without seeking the Court’s leave. See Pl.’s Federal
Rule 60(b) Civil Procedures Mot. to Vacate Marginal Order
Granting Def.’s Mot. for Extension of Time to Respond to ECF No.
77 Mot. and to File an Dispositive Mot. in this Action, ECF No.
85. The Court, by minute order, therefore terminated and struck
that motion from the record. Minute Order, Oct. 25, 2011.
Plaintiff has noticed an interlocutory appeal of that minute
order. See Leave to File/Notice of Appeal, ECF No. 91.
Plaintiff thereafter submitted two motions to the Court,
which the Court permitted to be filed. The first is a motion
for leave to appeal in forma pauperis (IFP). Mot. for
Leave/Affidavit in Supp. of Pauper Status, ECF No. 92
[hereinafter IFP Mot.]. The second is a motion to stay this
case during the pendency of the appeal. Mot. to Stay all
Matters Pending Appeal, ECF No. 93 [hereinafter Mot. to Stay].
Both will be denied.
“Whether to permit or deny an application to proceed in
forma pauperis is within the sound discretion of the Court.”
Watson v. Mukasey, No. 08-cv-1058, 2009 WL 1312540, at *1
(D.D.C. May 12, 2009). In exercising that discretion, district
courts consider whether “the affiant demonstrates that ‘because
of his poverty [he cannot] pay or give security for the
costs . . . and still be able to provide [himself] and
dependents with the necessities of life.’” Id. (quoting Adkins
v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). But
Courts may also consider non-financial factors, such as evidence
of abusive filing or the low likelihood of success on appeal.
See Ruston v. U.S. Secret Serv., 751 F. Supp. 2d 59, 60–61
(D.D.C. 2010); Campbell v. United States, No. 92-cr-0213, 2006
WL 2244594, at *1 (D.D.C. Aug. 4, 2006).
Although Plaintiff claims to be a pauper, IFP Mot. at 1,
the Court will exercise its discretion to deny IFP status, upon
consideration of the non-economic factors apparent in this case.
First, as the Court has previously found, Plaintiff has filed
“many repetitious and unnecessary motions” in this case. Mem.
2
Op. and Order at 11, ECF No. 71. Second, Plaintiff is not
likely to succeed on his appeal, considering that the Court of
Appeals likely lacks jurisdiction to consider Plaintiff’s appeal
of the Court’s interlocutory order. See 28 U.S.C. § 1292.
Therefore, the motion for leave to appeal IFP will be denied.
Concerning the request for a stay, “[t]o prevail on a
motion for a stay pending appeal, a party must show: (1) a
likelihood of prevailing on the merits of its appeal; (2) that
it will suffer irreparable injury absent the stay; (3) that the
non-moving party will not be harmed by the issuance of a stay;
and (4) that the public interest will be served by a stay.” Al
Maqaleh v. Gates, 620 F.Supp.2d 51, 58 (D.D.C. 2009)(citing
United States v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C.
Cir. 2003)). Plaintiff’s simple assertions that he is
substantially likely to prevail, that he will suffer irreparable
injury absent the stay, that Defendants will not be more than
minimally harmed if the stay is granted, and that the public
interest favors a stay, see Mot. to Stay at 1, do not suffice to
show that those assertions are true. They are but conclusions
with no argument.1 Therefore, the motion to stay this case will
be denied.
1
Plaintiff does cite, with no argument, two cases following
his statements that he is substantially likely to prevail on his
appeal and that he will be irreparably harmed absent a stay.
Mot. to Stay at 1 (citing In re World Trade Ctr. Disaster Site
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Accordingly, it is hereby
ORDERED that the Motion for Leave/Affidavit in Support of
Pauper Status, ECF No. 92, is DENIED; and it is
FURTHER ORDERED that the Motion to Stay all Matters Pending
Appeal, ECF No. 93, is DENIED.
SO ORDERED.
Signed: EMMET G. SULLIVAN
United States District Judge
December 5, 2011
Litig., 503 F.3d 167, 170–71 (2d Cir. 2007); Hirschfeld v. Bd.
of Elections in City of New York, 984 F.2d 35, 39 (2d Cir.
1993)). Those cases have nothing to do with whether a district
court properly exercised its discretion to terminate and strike
an improperly filed motion, and thus say nothing about
Plaintiff’s likelihood to prevail on the merits of his
interlocutory appeal. Those cases also say nothing as to why or
how Plaintiff would be harmed if the Court does not stay this
case during the pendency of the interlocutory appeal.
4