FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEES:
TIMOTHY PARKS STEVE CARTER
Carlisle, Indiana Attorney General of Indiana
FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana
JOHN T. ROY
St. Paul Staff Counsel Office
Indianapolis, Indiana
WILLIAM C. KREEGAR
Anderson, Indiana
CHARLES F. BRADDOCK
EDWARD A. SORG
The Law Office of Charles F. Braddock, LLC
Anderson, Indiana
TIMOTHY DEAN PARKS, )
)
Appellant-Plaintiff, )
)
vs. ) No. 77A01-0207-CV-266
)
STATE OF INDIANA, MADISON COUNTY, )
CITY OF ANDERSON, ET AL., )
)
Appellees-Defendants. )
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
In an action too obtuse to be summarized here in one or two
sentences, veteran pro se litigant Timothy Parks appeals a ruling dismissing his claim
against multiple defendants, presenting the following restated issues for review:
1. Did the trial court err in denying Parks’s request for pauper counsel?
2. Did the trial court err in denying Parks permission to proceed on the
amended complaint?
3. Did the trial court err in dismissing Parks’s case as frivolous?
4. Did the trial court err in denying Parks’s motion for partial summary judgment?
We affirm.
The facts are that on December 20, 1989, Parks was placed on probation
after having been convicted of burglary in Madison County, Indiana. On November
24, 1993, a warrant was issued for Parks’s arrest alleging that he had
violated probation. The warrant was served on Parks on March 20, 1995
while he was living in Florida. It was subsequently determined that Parks
had violated the conditions of probation, and therefore his probation was revoked.
That rather simple beginning became the fountainhead for a torrent of litigation initiated
by Parks that has continued unabated, notwithstanding a total lack of success and
even in the face of sanctions. See Parks v. Madison County, 783
N.E.2d 711 (Ind. Ct. App. 2002) (affirming Parks’s loss of good time credit
upon the trial court’s finding that Parks had initiated frivolous, unreasonable, and groundless
litigation) (Parks III). We believe that a review of the history of
that litigation would serve to place our discussion in the proper factual context.
We summarized that history in Parks III as follows:
This court affirmed the revocation of Parks's probation in an unpublished memorandum decision.
See Parks v. State, No. 48A04-9508-CR-293 (Ind. Ct. App. Nov. 20, 1995).
Thereafter, Parks filed an action in federal court alleging 42 U.S.C. § 1983
violations. That action was based upon the same operative facts as the previous
Indiana action. In it, Parks sought an order expunging the determination that he
violated probation, as well as compensatory and punitive damages. Some of the claims
asserted by Parks were resolved against him by way of summary judgment. The
remaining claims were dismissed without prejudice when Parks "refused to remedy, despite specific
guidance and direction from the court on how to" conform his complaint to
the guidelines set out in the federal pleading rules. Appellant's Appendix at 96
(quoting Parks v. Lawler, Jr., et al., No. IP-95-1231-C (S.D. Ind. Oct. 1,
1997) (Parks I)). Still later, Parks filed another action in Sullivan Circuit Court,
which was removed to the United States District Court for the Southern District
of Indiana. See Parks v. Madison County, et al., No. 00-0031-C-D/F (Ind. Ct.
App. Sept. 28, 2000) (Parks II). According to the Parks II court, that
action, which also advanced a 42 U.S.C. § 1983 claim, was "a mere
shadow" of Parks I. In granting summary judgment for the defendants, the court
held:
The foregoing demonstrates that Parks' claims accrued no later than upon the March
1995 Madison Circuit Court's order revoking his probation. He had two (2) years
following such date in which to file suit pursuant to 42 U.S.C. §
1983. He did not do so …. Parks I was deficient with
respect to certain claims and was botched by Parks' unwillingness to follow repeated
instructions to plead his claims in a simple and proper fashion. This sequel
offers nothing of substance, nothing of merit, which could support Parks' recovery. In
a ruling on a summary judgment motion the court accepts as true the
non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party,
and does not weigh the evidence of the credibility of witnesses. However, "it
is gratuitous cruelty to parties and their witnesses to put them through the
emotional ordeal of a trial when the outcome is foreordained" and in such
cases summary judgment is appropriate. Mason v. Continental Illinois Nat’l Bank, 704
F.2d 361, 367 (7th Cir. 1983). Appellant's Appendix at 100-01 (quoting Parks
v. Madison County, et al., No. 00-0031-C-D/F, slip op. at 7-8).
Parks v. Madison County, 783 N.E.2d at 716-17. This case is not
as simple as a complaint and an answer, however. Parks’s endeavors as
a pro se litigant have been marked by complications and failures attributable at
least in part to a lack of legal training. This case is
no different.
Parks initiated the instant action on April 14, 2001 by filing a fourteen-page
complaint in the Sullivan Circuit Court, naming as defendants three political subdivisions, one
newspaper, and twenty-four individuals. On June 15, 2001, after Parks paid the
$1.20 filing fee, the trial court issued an order directing the clerk of
the Sullivan Circuit Court to serve the summons and complaint upon the named
defendants. Of the individuals named in the complaint, six are judges, three
are court employees, twelve are attorneys (two of whom are prosecutors, and the
remaining ten are attorneys who represented adverse parties in previous actions filed by
Parks), and three are law enforcement officials. By our count, Parks referenced
in the complaint sixteen previous lawsuits he had initiated involving essentially the same
subject matter and the same defendants. In the original complaint, Parks alleged
that all of the defendants conspired to deny him access to state and
federal courts.
The counts in his original complaint may be divided roughly into two categories.
In the first, Parks alleged that certain defendants denied him access to
legal research materials. As a result, according to Parks, he “had numerous
actions dismissed and [he] was unable to amend flawed actions properly, or appeal
dismissals of cases, timely, because of the lack of legal materials he requested
for preparing his actions and appeals.” Appellant’s Appendix at 20.
Further, according to Parks, “some of those dismissed cases have subsequently been relied
upon as ‘strikes’ under 28 U.S.C. § 1915(g), or res judicata bars to
numerous appeals and civil actions in federal, or state courts[.]” Id. at
21. As a result, again according to Parks, he was “barred access
to all federal courts in the Seventh Circuit until he can pay a
$100.00 filing fee due in [one of Parks’s federal cases], per court’s order
on December 9, 1997[.]” Id.
The second category concerns allegations that certain defendants in civil rights actions filed
by Parks in state court removed those actions to federal court. There,
as set out above, Parks’s actions were dismissed because he has not paid
the $100.00 filing fee. According to Parks, such amounts to “[c]ivil conspiracy
to deny Parks access to state court litigation of civil rights claims.”
Id. at 24. We come now to one of the “complications” alluded
to previously in this opinion.
In July 16, 2001, Parks filed a motion for partial summary judgment.
At the same time, he filed a motion for change of venue from
judge and county. Four days later, before any of the named defendants
had filed a response, Parks filed an amended complaint for the purpose of
adding additional defendants and claims. On September 7, 2001, Judges Thomas Newman,
Dennis Carroll, Thomas Clem, David Hopper, Thomas Johnson and Anne K. Smith, Rodney
Cummings and David Puckett (prosecutor and deputy prosecutor, respectively, for Madison County), and
Wayne Uhl (who represented certain governmental defendants in previous actions filed by Parks)
(collectively referred to as “the State”) filed a motion to dismiss. In
late January 2002, Parks filed an “Application for Appointment of Attorney to Prosecute
Civil Action as an Indigent Plaintiff.” On June 19, 2002, the court
entered an order denying “all current motions” submitted by Parks, including his motion
for partial summary judgment. The court also granted the defendants’ motions to
dismiss with prejudice.
Appellant’s Appendix at 19. Kite argued in his motion to dismiss that
the rule in Indiana is that a party cannot mount a collateral attack
upon a party opponent who prevailed in a prior civil suit by filing
a subsequent, separate civil suit alleging malfeasance in the first action. Kite
is correct. As our supreme court noted long ago, “[t]o permit the
maintenance of such action would sanction a collateral attack upon judgments in other
causes.” Hermon v. Jobes, 209 Ind. 196, 198 N.E. 316, 317 (1935).
The court illustrated this principle by citing Shultz v. Shultz et
al., 136 Ind. 323, 36 N. E. 126, (1894).
[In that case,] a conspiracy was alleged which resulted in wrongfully obtaining property
through illegal proceedings. It was there held that an action for damages
for fraudulently obtaining a judgment cannot be maintained by a party thereto so
long as such judgment stands, because a judgment for damages would operate as
an impeachment of the first judgment. The first judgment imports absolute verity
as to every proposition of law and fact essential to its existence against
all the parties to it; as long as the original judgment stands, 'it
imports that it was just, equitable, lawful, and right to set aside appellant's
deed, and subject the property to sale to pay the debts of her
husband with absolute verity. That being true, for the purposes of this
case it makes no difference how wicked the conspiracy was that is charged
against all the parties to bring about that result.' The first judgment
should have been set aside in a direct action for … that purpose,
if it had been procured by fraud. It was held that before
a complaint can be sufficient, it should show a state of facts presenting
the plaintiff's inability to set aside the original judgment by some appropriate proceedings
known to law; that if fraud was perpetrated upon her (the appellant therein)
she can only relieve herself of that fraud in a direct proceeding to
vacate the judgment.
Hermon v. Jobes, 198 N.E. at 317-18.
Parks seeks redress against Kite and Morrow for their actions in lawsuits in
which their client prevailed over Parks. The relevance of the Hermon holding
is obvious. Moreover, Parks’s recent legal endeavors have rendered the supreme court
in that case positively prescient concerning the specter of a system without that
rule: if such an action could be maintained and the matter culminated “in
an adverse … judgment, [the appellant] would have been in a position to
maintain another action based upon what he may have considered false testimony, which
contributed to his loss. There would be no end to the litigation.”
Hermon v. Jobes, 198 N.E. at 319 (emphasis supplied). It
appears, in this case anyway, there would not. The trial court did
not err in granting Kite’s and Morrow’s motions to dismiss.
The motion to dismiss submitted by the City of Anderson, Ed Leonard, Timothy
Lanane, Robert Rock, and Thomas Broderick (the City defendants) incorporated by reference the
motion to dismiss submitted by the State defendants. Again, we see no
benefit in broaching this subject again when it has already been ably discussed
in prior opinions. We refer Parks to those opinions, and summarily affirm
the granting of the motion to dismiss submitted by the City defendants.
Id. at 32-33. In essence, Parks complained that the defendants conspired to
remove his civil rights lawsuits from state to federal court. Parks does
not favor us with any argument supporting the proposition that removing cases from
state to federal court is a forbidden tactic or an actionable tort.
The question of whether a particular case may be removed to federal court
is resolved by resorting to the jurisdictional provisions in the Federal Rules of
Civil Procedure (the Rules). If a case cannot be removed consistent with
those provisions then, of course, courts will not permit it. If the
Rules do permit removal, then the case may be removed. In the
latter case, courts do not inquire into the motives of the party seeking
removal. It makes no difference whether removal is sought for strategic reasons,
for the sake of convenience, out of personal preference, for any other reason,
or for no particular reason at all; if the Rules permit removal, the
case may be removed. We need not point out the absurdity of
a rule forbidding removal to federal court when the movant does so for
strategic reasons. The trial court did not err in denying Parks’s motion
for partial summary judgment.
We have once again resolved all issues against Parks and thereby affirmed the
trial court in all respects. This would normally end the matter.
This is not a normal circumstance, however. We have previously observed, “when
a decision is rendered against Parks, he has a penchant for dressing old
arguments in new clothes, and then pressing them forward again. In the
end, the inevitable decisions subsequently entered against him are rendered on the same
or substantially similar grounds as were previous decisions.” Parks v. Madison
County, 783 N.E.2d at 722-23. This case is but the latest manifestation
of that pattern. Whether this is classified as the third or the
seventeenth bite of the proverbial apple, it is apparent to us that Parks
refuses to accept that he will not prevail over these or other defendants
in a lawsuit based upon the 1993 warrant and the 1995 arrest.
Meanwhile, these defendants are forced to endure endless rounds of meritless litigation, and
our valuable judicial resources are spent answering the same questions over and over
again. We cannot permit this cycle to continue ad infinitum.
We note that in his motion to dismiss, Morow asked the court to
implement certain enumerated measures to prevent Parks from filing further lawsuits concerning these
matters. We do not find any place in the appellate materials where
the trial court addressed that request. Although the appellees do not request
it here, we conclude that Parks’s propensity toward endless litigation warrants the unusual
step of establishing a screening mechanism to forestall future frivolous lawsuits. We
note that the federal system contains persuasive precedent for such measures.
Years ago, Congress enacted the Prison Litigation Reform Act (the Act). See
28 U.S.C. § 1915, et seq. Its purpose was to prevent frivolous
lawsuits, or to “discourage prisoners from filing claims that are unlikely to succeed.”
Crawford-El v. Britton, 118 S.Ct. 1584, 1596 (1998). In that legislation,
Congress enacted the following screening provisions:
(a) Screening.—The court shall review, before docketing, if feasible or, in any event,
as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for dismissal.—On review, the court shall identify cognizable claims or dismiss
the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C.A. § 1915A (West Supp. 2003). These provisions have consistently
withstood constitutional scrutiny. See, e.g., Singleton v. Smith, 241 F.3d 534 (6th
Cir. 2001). We understand, of course, that the Act applies only in
federal actions, and its provisions do not govern here. We find its provisions
instructive, however, as we attempt to remedy the problems engendered by Parks’s interminable
string of lawsuits.
Accordingly, in addition to affirming the dismissal of Park’s lawsuit, we impose the
following conditions upon Parks with respect to any future lawsuits that spring directly
or indirectly from the 1993 arrest warrant and the execution of that warrant
in 1995. (1) Prior to filing any such lawsuit, Parks shall submit
to the trial court a copy of the complaint he wishes to file.
(2) Parks shall also file a copy of all of the relevant documents
pertaining to the ultimate disposition of each and every previous case instituted by
Parks against any of the same defendants or emanating, directly or indirectly, from
the 1993 arrest warrant and the execution of the warrant in 1995.
This includes, but is not limited to, the complaint, any motions to dismiss
or motions for summary judgment filed by the defendants in those actions, the
trial court order announcing disposition of the case, and any opinions issued in
the case by any appellate court. (3) Parks shall file a legal
brief, complete with competent legal argument and citation to authority, explaining to the
court why the new action is not subject to dismissal by application of
the doctrines of res judicata or law of the case. If, after
reviewing these materials, the trial court determines that the proposed lawsuit is frivolous,
malicious, fails to state a claim upon which relief may be granted, or
is otherwise utterly without merit, the court shall dismiss the proposed complaint.
(4) Parks is specifically instructed to attach to such complaint a separate copy
of the final paragraph of this opinion.
Judgment affirmed.
BROOK, C.J., and MATTINGLY-MAY, J., concur.