Pro Se Litigants and the Court’s Ability to Restrict Frivolous, Baseless, Abusive, or Unauthorized Pleadings: Jack Frederick Durie, Jr. v. State, SC10-1668, and Barash v. Kates, 586 F. Supp. 2d 1323 (S.D. Fla. 2008)
The instant post is not necessarily limited to the criminal appeals context. All attorneys may come across abusive pro se litigants, or “frequent filers,” at some point in their career. By “abusive” pro se litigants, I am referring to those litigants who may engage in any of the following types of behavior: (1) repeated filings of the same motions or pleadings, even after the Court has denied the relief requested; (2) repeated filings targeting the lawyer; (3) repeated filings by anyone acting in concert with the pro se litigant, such as a relative or friend; or, (4) repeated filings seeking relief which has no basis in the law. Notwithstanding the fact that many lawyers may not be aware of the Court’s power to restrict such filings, the power can be a useful tool when dealing with pro se litigants.
In Jack Frederick Durie, Jr. v. State, SC10-1668, issued on June 2, 2011, the Florida Supreme Court noted that Durie had repeatedly filed a large number of pleadings in the Court, on nearly a weekly basis, and averaging almost 1000 pages in each case. In case number SC10-1668, Durie had filed a petition for writ of habeas corpus supported by 1500 pages primarily consisting of pleadings which had been copied from, or revised from, those that Durie had filed in previous cases. After Durie responded to the Court’s Order to Show Cause by addressing only the merits of a previously denied petition for writ of habeas corpus, and expressing his desire continue raising the same issues, the Court struck as unauthorized all of Durie’s pending motions, and directed the Clerk of Court to discard all pleadings filed by Durie with regard to his underlying criminal case, unless such pleadings were signed by a member in good standing of the Florida Bar. The Court further cautioned Durie that if he filed any pleadings in violation of the Court’s Order, he could be subject to contempt proceedings or other appropriate sanctions.
Federal courts may also restrict a pro se litigant’s ability to file frivolous, baseless, and abusive pleadings. In Barash v. Kates, 586 F. Supp. 2d 1323 (S.D. Fla. 2008), the Court granted a Motion to Enjoin Frivolous Filings by a pro se litigant, Philip Barash. After outlining the long history of abusive litigation tactics used by Barash and his wife against his sister-in-law, Gloria Kates, as well as the numerous pleadings which had no basis in the law and contained only personal attacks against counsel for Kates, the Court ordered Barash to cease filing any further pleadings unless Barash followed a specifically described procedure. The Court further held that the Order applied to Barash and anyone working in concert with him, and that any violations of the Order could result in sanctions.
The above cases illustrate that Courts are ready, willing, and able to restrict frivolous, baseless, abusive, and unauthorized pleadings by abusive pro se litigants. Where attorneys are subject to pleadings containing personal attacks, or where attorneys are being bombarded by a high volume of daily or weekly filings in the same case, attorneys should consider calling upon the Court to invoke its power to protect itself from abusive litigants, to protect its own ability to control its docket, and to protect the public’s right of access to the courts.