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JONES v. CITY OF BUFFALO

October 15, 1994

WALTER JONES, et. al., Plaintiff,
v.
CITY OF BUFFALO, et. al., Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Presently before this Court are numerous causes of action that were initiated in New York State Supreme Court or Buffalo City Court which have been removed to this Court by Walter Jones. *fn1" Generally stated, these petitions all relate to Jones' allegation that he has been the victim of a conspiracy to violate his civil rights. In addition to the present petitions, the claimed conspiracy has also been the subject of several prior state and federal court proceedings. As shall be discussed infra, these prior cases are of great significance with regard to this Court's handling of the present petitions.

 Having reviewed the record kept in this matter, this Court shall, for the reasons set forth below, dismiss and/or remand all the causes of action presently pending under Docket No. 92-CV-345 and direct the Clerk of the Court to close the file and accept no future filings in this matter. Further, this Court shall reaffirm the injunction originally issued by Judge Curtin and, as such, Walter Jones as well as all persons acting on his behalf are permanently enjoined from filing any future complaints or removing any state causes of action based on any of the claims set forth in the present case or the previous actions discussed herein. Finally, this Court shall direct the Clerk of the Court for the Western District of New York to accept no future filings from Walter Jones except in accordance with the procedure set forth herein.

 FACTS AND PROCEDURAL HISTORY

 The history of the actions filed by Walter Jones ("Jones") is lengthy and exhaustive. Nevertheless, in an attempt to ensure that the claims Jones presently as well as previously asserted will never again unduly burden the judicial system, this Court shall endeavor to map the course of events that has led to the present Decision and Order.

 Walter Jones is a litigious pro se litigant who has filed approximately sixty motions, affidavits, amendments, and demands since attempting to remove his state actions, Erie County Index Nos. 2611-91, 14730-91, and 1637-92, to federal court on May 22, 1992.

 Jones' remaining claims in 80-CV-1075 were dismissed on April 15, 1987, based upon Jones' failure to comply with Magistrate Judge Edmund F. Maxwell's discovery orders. The Second Circuit affirmed this dismissal on December 13, 1987. See Jones v. Niagara Frontier Transp. Authority, 836 F.2d 731 (2d Cir. 1987), cert. denied, 488 U.S. 825, 109 S. Ct. 74, 102 L. Ed. 2d 50 (1988).

 On December 10, 1987, Jones filed civil action 87-CV-1532 alleging constitutional and statutory violations, as well as bribery, embezzlement, perjury, conspiracy and other various acts against two hundred and twenty original defendants, including the Mayor of Buffalo, virtually every union and contractor in the Buffalo area that was connected in any way with the Project, and all of the attorneys who represented defendants in 80-CV-1075. The complaint alleged that the defendants conspired to embezzle and extort federal funds earmarked for minority contracts in the Project, and then used those funds to pay bribes to Judge Elfvin and Magistrate Judge Maxwell to induce them to render unconstitutional decisions in 80-CV-1075. The complaint also alleged that the defendants conspired to set an arson fire at Jones' property at 1-19 Liberty Avenue. In a connected action, Docket No. 88-CV-887, Jones alleged that the U.S. Attorney General, Federal Bureau of Investigation, the present and former United States Attorneys, Assistant United States Attorney Marc Gromis, and the Clerks of the Court were involved in the improper dismissal of a racially mixed Grand Jury before which Jones testified in February 1988, and replaced it with an all white Grand Jury to investigate the fires at 1-19 Liberty Avenue. In addition, on February 24, 1989, Jones filed civil action 89-CV-253 seeking to remove tax foreclosure actions against three of his properties.

 All three of these actions were assigned to the Hon. John T. Curtin, United States District Court Judge, who handling them simultaneously, dismissed them on June 9, 1989, by a Decision and Order read from the bench finding that the actions were "vexatious, harassing and duplicative . . . [and had] put undue expense and burdens on the parties, on Court personnel, [and] the Court . . . ." Walter Jones v. City of Buffalo, et. al., Docket Nos. 87-1532, 88-887, and 89-253 (W.D.N.Y. June 9, 1989). Further, pursuant to the All Writs Act, 28 U.S.C. section 1651(a), the court ordered that Jones be enjoined from filing any further lawsuits in federal or any other court that were related to the subject matter of the cases that had been dismissed by the court. The court also ordered that a procedure be created to permit the court to examine any papers that Jones attempted to file with the Clerk's office in the future to determine if the subject matter of such papers was related to the prior proceedings. *fn2"

 New York State Supreme Court Justice Joseph J. Sedita dismissed Erie County Index No. 2611-91 on October 8, 1991. Justice Sedita stated that the actions were "baseless and without merit, and can be viewed as an unwarranted harassment of these defendants." Walter Jones v. City of Buffalo et. al., Erie County Index No. 2611-91, Memorandum Decision dated Oct. 8, 1991. Justice Sedita also enjoined the plaintiff from filing any similar motions in state court. Jones then filed motions to vacate the order of dismissal and to renew his action, but Justice Sedita denied these motions by Orders dated January 13, 1992 and January 31, 1992, as well as directed that the Erie County Clerk's Office not accept any further motion papers from the plaintiff that involved related subject matter. Although his action was dismissed, Jones attempted to file judgments dated April 30, 1992, against the named defendants. Such matter was raised as part of an Order to Show Cause heard by New York State Supreme Court Justice Vincent E. Doyle, which shall be discussed infra.

 Jones also initiated two further actions under new state docket numbers after receiving the adverse rulings from Justice Sedita. First, he instituted an action under Erie County Index No. 14730-91 on April 23, 1992, by filing a forty-two page complaint which reiterates allegations identical to those asserted in the previous federal and state actions. The complaint also includes a claim relating to the execution of a search warrant, lawfully issued by County Court Judge D'Amico, on February 11, 1992, during which Jones apparently threatened an IRS agent with a shotgun. Representatives of the United States Bureau of Alcohol, Tobacco and Firearms have indicated that the possession of a firearm was illegal because of Jones' prior felony conviction. Second, Jones filed a one hundred thirty-eight page complaint under Erie County Index No. 1637-92 on April 29, 1992, asserting essentially the same allegations of conspiracy relating to the Project and fire at 1-19 Liberty Avenue that had been identified in his other actions.

 On May 4, 1992, Justice Doyle signed an Order to Show Cause with respect to Erie County Index Nos. 2611-91, 14730-91, and 1637-92, with a hearing to be held on May 11, 1992. The Order directed Jones to show cause why the actions should not be dismissed and he should not be held in contempt. Following argument at the Order to Show Cause hearing, Justice Doyle granted Jones until May 14, 1992, to respond to the pleadings of defendants.

 On May 22, 1992, Jones, rather than respond to the show cause proceedings before Justice Doyle, filed a petition for removal of Erie County Index Nos. 2611-91, 14730-91, and 1637-92 to federal court and effectively brought all proceedings in state court to a halt. These actions are currently filed in the Office of the Clerk of the Court for the Western District of New York under Docket No. 92-CV-0345.

 Jones has filed six amended/supplemental removal petitions since his original petition of May 22, 1992. On June 10, 1992, Jones filed an Amended Consolidated Notice of Petition for Removal ("First Amended Petition"). This petition sought to remove Erie County Index No. 1049-88, a cause of action essentially intertwined with Erie County Index Nos. 2611-91, 14730-91, and 1637-92. Jones thereafter filed a Supplemental Petition for Removal ("Second Amended Petition") on August 13, 1992. The petition sought to remove Erie County Docket No. 8950-89 wherein Jones was a defendant and third-party plaintiff. The lawsuit was brought on behalf of a fireman who was killed in fighting a fire that destroyed Jones' warehouse at 1-19 Liberty Avenue on February 2, 1988. In conjunction with his Second Amended Petition, on August 14, 1992 Jones filed an Ex Parte Motion seeking various forms of relief, including leave to file the Second Amended Petition. ("Ex Parte Motion") This motion did not attempt to remove any additional actions from state court other than Erie County Index No. 8950-89. Along with the Second Amended Petition of August 13, 1992, Jones also filed a Verified Civil Rights and Suit in Equity Complaint, which essentially asserts the same conspiracy theory that pervades all of his legal actions. Jones then filed a Notice of Filing Additional Supplemental Petition for Removal ("Third Amended Petition") on September 17, 1992, again seeking to remove Erie County Docket No. 8950-89. On September 21, 1992, Jones filed a Notice of Filing of Another Additional Supplemental Petition for Removal ("Fourth Amended Petition") wherein he again sought removal of Erie County Index No. 1637-92 because the Honorable Joseph D. Mintz, Justice of the New York Supreme Court, issued an Order dismissing this cause of action on September 14, 1992. All of these removal petitions involve essentially similar or identical causes of action asserted by Jones, and in some instances contain specific references to Jones' prior federal court actions as supporting his present legal claims.

 More recently, Jones filed two additional removal petitions supplementing the causes of action removed to Docket No. 92-CV-345. First, on May 27, 1994, Jones filed a Consolidated, Supplemental Removal Petition ("Fifth Amended Petition") seeking to remove actions filed against him in Buffalo City Housing and Traffic Court identified as H-04663-92 and H-0368-94. Jones asserts that the traffic tickets and Housing Court actions are part of the overall "retaliatory conspiracy" against him. (Fifth Amended Petition at pp. 1-3.) Jones most recently filed, on June 14, 1994, a Supplemental Removal Petition ("Sixth Amended Petition") wherein he sought to remove an action initiated against him to enjoin him as well as other "African American defendants, from protesting the violations of their civil rights." (Sixth Amended Petition at P 4.) Jones asserts that the action should be "joined with related state court actions; as consolidated, and filed under WDNY Federal Civil Docket No. 92-345S." (Sixth Amended Petition, Jones Aff.) For reasons to be explained herein, this Court sua sponte filed an Order on June 24, 1994, remanding the causes of action underlying these two most recent petitions to the state court system.

 Jones' allegations in the present actions essentially have as their genesis his claims regarding the NFTA Project and the alleged arson of the Jones' property at 1-19 Liberty Avenue. Although some new events have been alleged in the lawsuits which have followed Jones' original causes of actions based on the Project and the fire, essentially what Jones has done in each successive lawsuit has been to expand upon his conspiracy theory. In fact, the nature of these subsequent actions is such that each attorney who has opposed Jones and each judicial officer who has ruled against Jones has been named as a defendant in the following action. As a result, the present causes of action name as participants in the alleged conspiracy not only all of the presiding federal court judges in the Western District of New York, but also numerous Appellate Judges of the Second Circuit Court of Appeals, as well as the Clerk of the Court for the United States Supreme Court. (See Motion to Disqualify at pp. 2-5 & PP 12, 23-27; Ex Parte Motion, Jones Aff. PP 16(b), 17(a), 43, 46, 50, 52, 54, 57-58, 60, 81-87, 101-115.)

 The docket sheet in this case reflects that there are numerous motions and other matters presently pending. Rather than provide an exhaustive listing of these matters, this Court shall identify those which are significant to the present Decision and Order. First, defendant City of Buffalo filed a motion to dismiss on July 20, 1992. Second, a request from Jones to proceed in forma pauperis filed on August 11, 1992. Third, a motion to disqualify this Court from this action and transfer venue to the District of Columbia filed on September 4, 1994. ("Motion to Disqualify.") At the present time, no action has been taken regarding these motions. Fourth, this Court's Order of August 27, 1992, directing that all other matters in this action would be held in abeyance pending this Court's determination of whether Jones' removal petition was contrary to Judge Curtin's aforementioned Order. Finally, an Order referring all pretrial matters, including dispositive motions, to Hon. Leslie G. Foschio, United States Magistrate Judge, filed on September 21, 1992.

 DISCUSSION

 As noted previously, this action was referred to Magistrate Judge Foschio pursuant to 28 U.S.C. § 636(b)(1) in September 1992. However, this Court shall revoke its Referral Order filed on September 21, 1992, and proceed to address and resolve the matters presently pending in this action.

 I. Motion for Disqualification and Transfer of Venue to District of Columbia

 Initially, I must address Jones' motion to disqualify and transfer venue to the District of Columbia. Jones has essentially identified two bases for my disqualification. First, he asserts that disqualification is necessary "due to Judge Skretny being an employee of the Erie County District Attorney's Office, from which the conspiracy against Deponent WALTER L. JONES' rights, and property originated by former Erie County District Attorney, Richard J. Arcara." (Jones Aff. P 12.) Moreover, Jones asserts that "Judge WILLIAM SKRETNY . . . fraudulently entered an unconstitutional and fraudulent order upon a falsified letter from the City of Buffalo attorney defendants, in violation of the due process and equal protection clauses of the Fourteenth Constitutional Amendment." (Jones Aff. P 19.) Based on the foregoing as well as other similar allegations, Jones seeks "[am order recusing and disqualifying this court Judge from further presiding in this action, pursuant to Title 28 USC, sections 455(a)(b)(1)(2)." (Jones Aff., WHEREFORE CLAUSE (b).)

 Upon considering Jones allegations in view of the legal standards set forth in 28 U.S.C. § 455 and the Supreme Court's recent explanation of those standards in Liteky v. United States, U.S. , 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994), I find Jones' motion for disqualification to be unsupported. First, the August 27, 1994 Order challenged by Jones as "unconstitutional and fraudulent" was a mere scheduling order and did not constitute a ruling against Jones. Moreover, even if this Order could be construed as adverse to Jones, "judicial rulings alone almost never constitute [a] valid basis for a bias or partiality motion." Id., 114 S. Ct. at 1157. Finally, Jones has alleged that I possess "extrajudicial" information regarding his case based on my prior employment at the Erie County District Attorney's Office where I worked with the Honorable Richard J. Arcara, United States District Court Judge and former Erie County District Attorney. However, during none of my prior affiliations have I worked on or been asked to contribute my opinions regarding any of Jones' prior lawsuits. More importantly, my prior associations have not provided me with an "extrajudicial source" of information regarding the specifics of Jones' present or prior lawsuits. There is simply no basis for his claim that I am biased or prejudiced against him.

 Finally, it is apparent that Jones employs a litigation tactic by which he moves for disqualification or recusal any judge who has or Jones believes will rule against him. In this regard, I find it relevant to note the comments and findings of the Hon. David G. Larimer when faced with a similar disqualification motion following his ruling against Jones when Erie County Index No. 8950-89 was originally removed to federal district court in 1989:

 
Obviously disgruntled at my decision, Jones now seeks to sue me on the grounds that my dismissal of his third-party complaint in connection with his motion to proceed in forma pauperis was a violation of the Constitution and at least sixteen separate statutory provisions. Because he has attempted to sue me and because several other judges in Buffalo were named in the original third-party complaint, Jones seeks my recusal and the wholesale transfer of the case to Washington, D.C.
 
It is significant that Jones has had matters before three district judges in this district, Judges John T. Elfvin, John T. Curtin and now me. Soon after each of us ruled against Jones, we were named as defendants.

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