Opposition Brief — Clarence Matthew Otworth, Petitioner v. PNC Bank

RESPONDENTS APPENDIX

TABLE OF CONTENTS

OPINIONS AND ORDERS

Order of the United States Court of Appeals for

the Sixth Circuit (July 27, 2020) ....................... 1a

Order of the United States District Court for the

Western District of Michigan Addressing

Motions and Dismissing the Case

(September 26, 2019).......................................... 9a

Restricted Access Order Issued by the United

States District Court for the Western District

of Michigan (October 4, 2019) .......................... 24a

Attachment to Restricted Access Order:

Letter from Otworth to Chief Judge Jonker

(October 1, 2019) .............................................. 27a

Attachment to Restricted Access Order:

Letter from Chief Judge Jonker to Otworth

(October 4, 2019) .............................................. 30a

OTHER DOCUMENTS

Notice of Hearing

(March 26, 2019) ............................................... 32a

Minutes of Hearing

(March 26, 2019) ............................................... 34a

Res.App.1a

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

(JULY 27, 2020)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

CLARENCE MATTHEW OTWORTH,

Plaintiff-Appellant,

v.

PNC BANK,

Defendant-Appellee.

________________________

No. 19-2188

On Appeal from the United States District Court

for the Western District of Michigan

Before: STRANCH, THAPAR,

and READLER, Circuit Judges.

Clarence Matthew Otworth, proceeding pro se,

appeals a magistrate judge’s order dismissing his

amended complaint filed pursuant to Title III of the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12182, other federal statutes, and Michigan law.

This case has been referred to a panel of the court

that, upon examination, unanimously agrees that oral

argument is not needed. See Fed. R. App. P. 34(a).

Res.App.2a

Otworth alleges that he is in a wheelchair, cannot

walk, and had depended for years on an aide to shop

for him after cashing a check made payable to the

aide and drawn from Otworth’s PNC Bank (“PNC”)

account. PNC, however, began charging non-customers

a two percent check cashing fee and would not instead

cash Otworth’s check that was presented by the aide

but was made payable to Otworth. Frustrated by the

matter, Otworth filed suit on June 4, 2018, against

PNC for money damages pursuant to 42 U.S.C. § 1983

and state law. He moved for a default judgment and

attached copies of returns for summonses ostensibly

showing that PNC had been served twice—on June

19, 2018, as well as on July 30, 2018.

Before service of the July 30th summons and a

month before Otworth’s motion for a default judgment,

PNC moved to dismiss the complaint for failure to state

a claim. Otworth filed a response in opposition, and

PNC filed a reply. Otworth then tendered unauthorized

sur-replies that were stricken by the district court.

He next moved unsuccessfully for the appointment of

counsel who would appear at hearings and be paid by

him, but who would not prepare any documents.

A magistrate judge recommended denying Otworth’s motion for a default judgment, reasoning that

the June 19th summons had not been issued by the

district court and that PNC thus had not failed to

timely defend against the complaint. See Fed. R. Civ.

P. 55(a). As to PNC’s motion to dismiss, the magistrate

judge recommended that it be granted because Otworth

had failed to state a claim under § 1983 and state law.

Upon consideration of Otworth’s objections, the

district court denied Otworth’s motion for a default

Res.App.3a

judgment, granted PNC’s motion to dismiss, and

granted Otworth leave to file an amended complaint.

In his amended complaint, Otworth asserted that

PNC’s actions violated the ADA; the Rehabilitation Act,

see 42 U.S.C. § 12133; Title VI of the Civil Rights Act

of 1964, see 42 U.S.C. § 2000d et seq.; and the Uniform

Commercial Code. He thereafter moved for summary

judgment on the ground that PNC had conceded his

version of the facts by not responding to his request

for admission of facts served with the summons.

Otworth stated that he “waived” any hearing requiring

a personal appearance and requested that all hearings

be by telephone. He also moved to join Congress as a

defendant.

The magistrate judge set a scheduling conference

for March 26, 2019. Otworth and PNC filed a joint

status report, noting that Otworth would appear by

telephone and that the parties had consented to final

disposition by the magistrate judge. Unable to reach

Otworth on the day of the hearing despite several

attempts, the magistrate judge rescheduled the hearing

for April 9, 2019, and ordered Otworth to appear in

person or risk the dismissal of his case for lack of

prosecution.

In response, Otworth moved for recusal of the

magistrate judge, accusing him of bias toward pro se

plaintiffs and arguing that the magistrate judge “knew”

that Otworth could not appear in person and “want[ed]

an excuse for dismissing the case.” Otworth requested

that the court call him for the April 9th hearing and

explained that a defective telephone handset was being

replaced.

Res.App.4a

Shortly before the April 9th hearing was to commence, Otworth emailed PNC’s counsel, stating, “Tell

the Judge that Captel installed a new telephone in

my house yesterday. I will expect him to call me at

11:00 a.m.” The magistrate judge did not call Otworth

when he failed to appear in person.

Otworth subsequently filed motions to terminate

PNC’s counsel, impose sanctions against counsel, and

schedule a telephone conference. These motions were

followed by a second motion for recusal of the

magistrate judge. Chief Judge Jonker also placed in

the record letters from Otworth to Attorney General

William Barr seeking criminal prosecution of district

judges and the magistrate judge.

In a single order, the magistrate judge denied all

of Otworth’s motions and dismissed the action. The

court held that Otworth’s summary judgment motion

lacked any legal or factual basis. It also held that his

motion for joinder cited no authority for joining Congress, and that Congress was not a necessary party.

The motions for recusal were denied because the

magistrate judge had no bias against pro se litigants,

and the courthouse was accessible to wheelchair-bound

litigants. Additionally, the court noted that personal

appearance at a scheduling conference was beneficial

because a pro se litigant could learn the legal process,

resolve matters related to litigation, and consider

settlement. The court further held that the motions

to terminate counsel and impose sanctions, premised

on counsel’s mere denial of PNC’s liability, were

meritless. The motion to schedule a telephone conference, where Otworth again accused the magistrate

judge of bias, was denied for the same reasons as the

motions for recusal.

Res.App.5a

Finally, the magistrate judge dismissed Otworth’s

action as a sanction for failing to appear at the April

9th scheduling conference. See Fed. R. Civ. P. 16(f)(1).

Observing that Otworth’s defective telephone underscored the need for his personal appearance and that

his conduct throughout the litigation indicated a misunderstanding or disregard of the court’s rules, the

magistrate judge concluded that requiring Otworth to

appear in person was reasonable. But Otworth’s

persistent refusal to attend any hearings was not,

and dismissal was the only appropriate sanction.

On appeal, Otworth asserts that: (1) PNC’s checkcashing policies violated his rights under the ADA

and other laws; (2) the magistrate judge should have

recused himself; (3) the magistrate judge violated the

Fourteenth Amendment by refusing to schedule a

trial; and (4) the magistrate judge violated the ADA

by requiring him to appear in person.

We review for an abuse of discretion a district

court’s dismissal of a complaint due to a plaintiff’s

failure to comply with an order. Mager v. Wis. Cent.

Ltd., 924 F.3d 831, 837 (6th Cir. 2019).

Federal Rule of Civil Procedure 16(a) provides

that a court may order a pro se litigant to appear at

pretrial conferences. If a litigant “fails to obey a

scheduling or other pretrial order,” the district court

may impose sanctions, including dismissal of the action.

Fed. R. Civ. P. 16(f)(1)(C) (cross-referencing Fed. R. Civ.

P. 37(b)(2)(A)(ii)-(vii)). When contemplating whether

to dismiss an action, a court must consider:

Res.App.6a

(1) whether the party’s failure is due to

willfulness, bad faith, or fault; (2) whether

the adversary was prejudiced by the dismissed

party’s conduct; (3) whether the dismissed

party was warned that failure to cooperate

could lead to dismissal; and (4) whether less

drastic sanctions were imposed or considered

before dismissal was ordered.

Mager, 924 F.3d at 837 (quoting United States v. Reyes,

307 F.3d 451, 458 (6th Cir. 2002)).

The district court did not abuse its discretion.

First, Otworth willfully violated the magistrate judge’s

order requiring him to appear at the April 9th

scheduling conference. As Otworth had previously and

repeatedly indicated that he would participate only

by telephone, his conduct may be deemed contumacious,

i.e., “behavior that is perverse in resisting authority

and stubbornly disobedient.” Id. (quoting Carpenter

v. City of Flint, 723 F.3d 700, 705 (6th Cir. 2013)).

Contumacious behavior by itself may warrant dismissal. Id.

Second, PNC suffered prejudice from Otworth’s

failure to appear because PNC incurred unnecessary

time and resources in travelling to the court and

preparing for the hearing. See Schafer v. City of

Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008).

Third, the magistrate judge gave Otworth explicit,

written notice that his failure to appear could lead to

dismissal.

Fourth, the magistrate judge concluded that no

lesser sanction was available because Otworth could

not prosecute his case if he would not appear in court

or follow the court’s orders. This also supports the

Res.App.7a

magistrate judge’s decision to dismiss the complaint

pursuant to Rule 16(f)(1)(C). In any event, a failure

to expressly consider other sanctions “is not necessarily

an abuse of discretion.” Reyes, 307 F.3d at 458.

Otworth argues that the magistrate judge should

have recused himself because he is biased and corrupt.

Otworth further argues that the magistrate judge

violated the Fourteenth Amendment by refusing to

schedule a trial and violated the ADA by requiring

him to appear in person.

The magistrate judge did not err by refusing to

recuse himself under 28 U.S.C. § 455. Otworth’s assertion of bias is based on his dissatisfaction with the

magistrate judge’s decisions. Judicial rulings almost

never serve as a valid basis for recusal and almost

invariably are simply grounds for appeal. Liteky v.

United States, 510 U.S. 540, 555 (1994). Next, the

magistrate judge did not err by dismissing the case

prior to a jury trial. Prose plaintiffs are not automatically entitled to take a case to trial, see Pilgrim v.

Littlefield, 92 F.3d 413, 416 (6th Cir. 1996), and a

dismissal for failure to prosecute does not violate one’s

right to a jury trial. See Lewis v. Rawson, 564 F.3d

569, 575 n.7 (2d Cir. 2009). Last, the ADA does not

apply to any part of the federal government, including

the federal courts. See United States v. Snarr, 704

F.3d 368, 384 (5th Cir. 2013).

Because the district court dismissed Otworth’s

action for failure to prosecute, we need not reach the

merits of the claims brought in his complaint. See

Jourdan v. Jabe, 951 F.2d 108, 109-10 (6th Cir. 1991).

Res.App.8a

Accordingly, we AFFIRM the district court’s order.

ENTERED BY ORDER OF THE COURT

/s/ Deborah S. Hunt

Clerk

Res.App.9a

ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE

WESTERN DISTRICT OF MICHIGAN

ADDRESSING MOTIONS AND

DISMISSING THE CASE

(SEPTEMBER 26, 2019)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

________________________

CLARENCE MATTHEW OTTWORTH,

Plaintiff,

v.

PNC BANK,

Defendant.

________________________

Case No. 1:18-cv-625

Before: Hon. Ray KENT,

United States Magistrate Judge.

Pro se plaintiff Clarence Matthew Ottworth filed

this action against PNC Bank. The parties consented

to have a United States Magistrate Judge conduct

any and all further proceedings in the case, including

trial and entry of final judgment. This matter is now

before the Court on a number of motions filed by

plaintiff.

Res.App.10a

I.

Background

Plaintiff filed this lawsuit demanding $1,000,

000.00 from defendant PNC Bank (PNC) on a variety

of theories. Compl. (ECF No. 1). The Court granted

defendant’s motion to dismiss and allowed the

plaintiff to re-plead. Order (ECF No. 27, PageID.118119). Plaintiff filed an amended complaint in which he

alleged: that he is in a wheelchair; that he cannot

travel to the bank to cash checks; that he sends his

Agent “to collect his money;” and that PNC’s refusal

“to hand over the money to the Agent of the payee”

violates the American with Disabilities Act, the Rehabilitation Act, and an implied private cause of action

under Title VI of the Civil Rights Act of 1964. Amend.

Compl. (ECF No. 28).

Prior to Rule 16 Scheduling Conference, plaintiff

filed a motion for summary judgment (ECF No. 31)

asking the Court to dismiss defendant’s answer to the

amended complaint, to grant his motion for summary

judgment, and to have “all hearing conducted by telephone” because he is disabled. Plaintiff also filed a

motion to join the United States Congress as a necessary party to this litigation because Congress enacted

the ADA, the Rehabilitation Act, and Civil Rights Act

of 1964 (ECF No. 32).

Plaintiff did not appear at the original scheduling

conference on March 26, 2019. See Minutes (ECF No.

37). It appears that the parties reached an agreement,

without the Court’s approval, that plaintiff would not

appear and that he “will be available by telephone”

on March 26th at 10:00 a.m. Joint Status Report (ECF

No. 34 PageID.149). Although the Court did not agree

to this procedure, the undersigned’s office attempted

to contact plaintiff six times between 10:00 a.m., but

Res.App.11a

received a recording that the call could not be completed as dialed. When plaintiff neither appeared nor

answered his telephone, the Court continued the scheduling conference until April 9, 2019, and sent plaintiff

a notice advising him that “HE MUST APPEAR IN

PERSON FOR THE CONFERENCE” and that

“PLAINTIFF’S FAILURE TO APPEAR MAY RESULT

IN HIS CASE BEING DISMISSED FOR LACK OF

PROSECUTION.” See Notice (ECF No. 36) (emphasis

in original).

Plaintiff sent the Court a “response” to the notice

stating that he could not place a telephone call into

the original Rule 16 conference because he had a

defective handset. Response (ECF No. 40-1). Plaintiff

included as exhibits a copy of a letter from his telephone company stating he had a defective handset

and a copy of his motion to recuse the undersigned

for bias and to order the Court to call him for the

April 9th scheduling conference. Plaintiff also filed a

“Motion to recuse Magistrate Judge Kent from this

civil action for bias” (ECF No. 39).

Plaintiff failed to appear at the April 9th Rule

16 Conference (see Minutes (ECF No. 41)). Shortly

before the hearing, plaintiff sent PNC’s counsel an

email stating, among other things, that “Tell the

Judge that Captel installed a new telephone in my

house yesterday. I will expect him to call me at 11:00

a.m.” (Recorded proceedings) (April 9, 2019).

After he failed to appear for the Rule 16 Conference, plaintiff commenced a litigation strategy based

upon removing PNC’s counsel and the trial judge

from this case, which included a motion for the Court

to terminate PNC’s counsel (ECF No. 42), a motion for

sanctions against PNC’s counsel (ECF No. 44), another

Res.App.12a

motion to recuse the undersigned (ECF No. 50), and a

motion for a “telephone scheduling conference” on his

terms (ECF No. 47). Plaintiff expanded his litigation

strategy to include the removal of other judges from

the Western District of Michigan, by sending letters

to the United States Attorney General to file a criminal

complaint against Judge Robert J. Jonker, Judge

Paul L. Maloney, and Magistrate Judge Ray Kent for

fraud and obstruction of justice because no scheduling

orders in his pro se lawsuits filed in this Court have

issued. Letter (ECF Nos. 49 and 50).

Based on his filings, plaintiff takes the position

that he can litigate this case from his home rather

than appear in Court, that he is exempt from the

Court’s rules regarding pleading and motion practice,

and that he can dictate the result of litigation: by

removing judges he does not like; by discharging the

attorneys who represent the adverse party; and by

removing judges through a letter writing campaign

directed to the United States Attorney General.

“Pro se litigants are required to follow the rules

of civil procedure.” Mooney v. Cleveland Clinic Foundation, 184 F.R.D. 588, 590 (N.D. Ohio 1999). A pro se

plaintiff “volitionally assumes the risks and accepts

the hazards which accompany self-representation.”

Graham-Humphreys v. Memphis Brooks Museum of

Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000). “While

courts have historically loosened the reins for pro se

parties, the right of self-representation is not a

license not to comply with relevant rules of procedural

and substantive law.” Eagle Eye Fishing Corporation

v. United States Department of Commerce, 20 F.3d

503, 506 (1st Cir. 1994) (internal citations and quotation marks omitted). Thus, when a non-prisoner litigant

Res.App.13a

chooses to represent himself, “he should expect no

special treatment which prefers him over others who

are represented by attorneys.” Brock v. Hendershott,

840 F.2d 339, 343 (6th Cir. 1988).

II.

Motions

A. Plaintiff Failed to File Supporting Briefs

As an initial matter, plaintiff has failed to file

supporting briefs for any of his motions as required

by W.D. Mich. LCivR 7.1(a), which provides in pertinent

part that “[a]ll motions, except those made orally

during a hearing or trial, shall be accompanied by a

supporting brief” and that “[a]ll briefs filed in support

of or in opposition to any motion shall contain a

concise statement of the reasons in support of the

party’s position and shall cite all applicable federal

rules of procedure, all applicable local rules, and the

other authorities upon which the party relies.” While

this Court can deny his motions on that ground, it

will address the merits of the motions.

B. Motion for Summary Judgment

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule

56 further provides that a party asserting that a fact

cannot be or is genuinely disputed must support the

assertion by:

(A) citing to particular parts of materials in the

record, including depositions, documents,

electronically stored information, affidavits or

declarations, stipulations (including those

Res.App.14a

made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot

produce admissible evidence to support the

fact.

Fed. R. Civ. P. 56(c)(1).

In Copeland v. Machulis , 57 F.3d 476 (6th Cir.

1995), the court set forth the parties’ burden of proof

in a motion for summary judgment:

The moving party bears the initial burden of

establishing an absence of evidence to support

the nonmoving party’s case. Once the moving

party has met its burden of production, the

nonmoving party cannot rest on its pleadings,

but must present significant probative evidence in support of the complaint to defeat

the motion for summary judgment. The mere

existence of a scintilla of evidence to support

plaintiffs position will be insufficient; there

must be evidence on which the jury could

reasonably find for the plaintiff.

Copeland, 57 F.3d at 478-79 (citations omitted). “In

deciding a motion for summary judgment, the court

views the factual evidence and draws all reasonable

inferences in favor of the nonmoving party.” McLean

v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir.

2000).

Plaintiff has failed to present any legal or factual

basis to support his motion for summary judgment.

Res.App.15a

The only document filed in support of his motion is a

“Request for admission of facts” which is dated June

20, 2018, and plaintiff’s claim that he is entitled to

summary judgment because PNC admitted those facts

by failing to respond to the request. Contrary to

plaintiff’s theory, the request for admission is of no

effect because PNC was not a party in this litigation

when he mailed the request on June 20, 2018; PNC

did not enter its appearance until July 24, 2018. In

addition, plaintiff filed the request for admissions in

violation of Fed. R. Civ. P. 26(d), which provides in

pertinent part that “[a] party may not seek discovery

from any source before the parties have conferenced

as required by Rule 26(f), except in a proceeding

exempted from initial disclosure under Rule 26(a)(1)(B)

or when authorized by these rules, by stipulation, or

by court order.” Fed. R. Civ. P. 26(d)(1). For these

reasons, plaintiffs motion for summary judgment (ECF

No. 31) is DENIED.1

C.

Motion for Joinder

Plaintiff seeks to join the United States Congress

as a necessary co-plaintiff in this case. Plaintiff cites

no authority to support this attempt to join Congress

into his check-cashing dispute with PNC. While

Congress enacted the federal statutes which PNC

allegedly violated, Congress is not a necessary party

1 In a related matter, the Court notes that in his reply brief,

plaintiff stated that he “decided to drop” the lawsuit against PNC

at one time, but that now he demands a trial by jury and “if he

wins, he will expect the amount that he sued for, one million

dollars.” Reply (ECF No. 38, PagelD.159). Contrary to plaintiff’s

statement that he decided to drop the lawsuit, he did not file

any document requesting a voluntary dismissal of this action.

Res.App.16a

to plaintiff’s lawsuit against PNC. Plaintiff can obtain

complete relief against PNC under those statutes without having Congress as a co-plaintiff. See Fed. R. Civ.

P. 19(a)(1).2 Accordingly, plaintiff’s motion for joinder

(ECF No. 32) is DENIED.

D.

Motions for Recusal

Plaintiff has filed two motions to recuse the

undersigned as the trial judge in this case. The gist

of plaintiff’s first motion for recusal, which was filed

before the April 9, 2016 Rule 16 Conference, is that

“Judge Kent knows very well that it is impossible for

the plaintiff to appear in person because he cannot

walk” and that “Judge Kent just wants an excuse for

dismissing the case.” Motion to recuse (ECF No. 39).

In his second motion for recusal, filed on September

11, 2019, plaintiff stated that the undersigned “knew

or should have known that the plaintiff’s phone was

out of order when he [sic] tried to call him [sic] for the

Rule 16 scheduling conference on March 26, 2019”,

and that the undersigned should have not ordered

2 Fed. R. Civ. P. 19(a) provides in relevant part as follows:

“(1) Required Party. A person who is subject to

service of process and whose joinder will not deprive

the court of subject-matter jurisdiction must be joined

as a party if. (A) in that person’s absence, the court

cannot accord complete relief among existing parties;

or (B) that person claims an interest relating to the

subject of the action and is so situated that disposing

of the action in the person’s absence may: (i) as a

practical matter impair or impede the person’s ability

to protect the interest; or (ii) leave an existing party

subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations because

of the interest.”

Res.App.17a

plaintiff to appear in person. Motion to recuse (ECF

No. 50). Plaintiff repeats his statement that “Judge

Kent knew very well that it was impossible for the

plaintiff to appear in person because he cannot walk”

and that “Judge Kent just wanted an excuse for

dismissing the case.” Id.

The standard for recusal is an objective one:

“‘a judge must recuse [himself] if a reasonable,

objective person, knowing all of the circumstances, would have questioned the judge’s

impartiality.’” United States v. Sammons, 918

F.2d 592, 599 (6th Cir. 1990) (citation omitted). Petitioner’s mere subjective view does

not support disqualification. See id. (“[T]he

judge need not recuse himself based on the

‘subjective view of a party,’ no matter how

strongly that view is held.”) (citation omitted).

“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality

motion.” Liteky v. United States , 510 U.S.

540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474

(1994).

Taylor v. McKee, No. 1:14-cv-1284, 2015 WL 5593223

at *2 (W.D. Mich. Sept. 21, 2015).

Contrary to plaintiff’s contentions, the undersigned

has no personal knowledge on whether plaintiff is in

a wheelchair or whether plaintiff “cannot walk.”

Even if plaintiff requires a wheelchair, the federal

building is accessible to individuals with disabilities.

Individuals who require wheelchairs appear in both

civil and criminal proceedings in this courthouse.

Next, the undersigned is not biased against pro

se litigants. The undersigned handles motions in pro

Res.App.18a

se cases on a regular basis, has been the trial judge

in lawsuits brought by pro se plaintiffs, and has decided

Social Security Appeals filed by pro se plaintiffs. When

a pro se party such as plaintiff files a civil lawsuit,

the undersigned requires the pro se party to appear

in person at the scheduling conference. The Court

requires personal appearance for a number of reasons.

The Rule 16 scheduling conference sets out the framework for the entire case and gives the Court and the

parties an opportunity to meet in person and address

any number of matters related to the pending litigation.

Pro se plaintiffs benefit from familiarizing themselves

with the courthouse, the courtroom, the trial judge, and

the opposing party (or attorney). Typically, a number

of preliminary matters are resolved during the Rule

16 Conference which benefits all parties. The seeds of

a settlement are often planted at the Rule 16 Conference, and some parties reach tentative settlements

at that time. In addition, the undersigned utilizes the

Rule 16 Conference to explain the legal process to pro

se litigants so that they understand how to develop a

legal case for trial and what the Court expects of

litigants. For all of these reasons, plaintiff’s subjective

view that the undersigned is biased against pro se

litigants is unsupported. Accordingly, plaintiff’s motions

to recuse (ECF Nos. 39 and 50) are DENIED.

E.

Motion to Terminate Legal Representation Provided by Attorney Renner for Defendant PNC

Bank

In this motion, plaintiff asks the Court to terminate Attorney Jason Renner’s representation of PNC

Bank because Renner “deliberately lied in the Joint

Status Report” (ECF No. 42, PageID.173) (emphasis

omitted). The basis for plaintiff’s claim is that his

Res.App.19a

version of events as recited in the Joint Status Report

is correct, that PNC’s version of events “is a flat out

lie”, and that as a result of this lie, plaintiff’s motion

to terminate the legal representation of Attorney

Renner “must be granted, and substantial sanctions

must be imposed to discourage other attorneys from

lying.” Motion (ECF No. 42, PageID.174).

In its statement of the case, PNC denied that it

is liable to plaintiff.

Defendant’s View: Defendant denies that

its non-customer check cashing fee violates

the American with Disabilities Act, the

Rehabilitation Act of 1973, or any other law.

Defendant further denies Plaintiff has any

other colorable cause of action against it

arising out of its non-customer check cashing

fee.

Joint Status Report (ECF No. 34, PageID.150). Neither

PNC nor its attorney did anything wrong or sanctionable by stating PNC’s position. Plaintiff’s motion to

terminate PNC’s attorney (ECF No. 42) is frivolous

and DENIED.

F.

Motion for Sanctions

Plaintiff also seeks sanctions against Attorney

Renner pursuant to Fed. R. Civ. P. 11 for the alleged

“lies” in the Joint Status Report, i.e., “deliberately

lying to the plaintiff and the court that Defendant

PNC Bank did not violate the Americans with Disabilities Act of 1990 (ADA) by refusing to cash plaintiff’s

checks unless he presented his checks to the bank

himself or paid their check cashing fee.” Motion for

sanctions (ECF No. 44). As a procedural matter, plain-

Res.App.20a

tiff’s request for Rule 11 sanctions is improperly filed

because he failed to comply with the safe harbor provisions of Fed. R. Civ. P. 11(c)(2), i.e., “The [Rule 11]

motion must be served under Rule 5, but it must not

be filed or be presented to the court if the challenged

paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after

service or within another time the court sets.” The

Sixth Circuit “has expressly ruled that Rule 11 is

unavailable where the moving party fails to serve a

timely ‘safe harbor’ letter.” First Bank of Marietta v.

Hartford Underwriters Insurance Co., 307 F.3d 501,

510-11 (6th Cir. 2002).

Even if plaintiff had met the safe harbor requirement, his motion is without merit because neither PNC

nor its attorney engaged in sanctionable conduct. See

discussion, § II.D., supra. Accordingly, plaintiff’s motion

for sanctions (ECF No. 44) is DENIED.

G.

Motion for Scheduling Conference, or in the

Alternative Motion for Commencement of

Discovery

In this motion, plaintiff states that “[t]his matter

should have been disposed of in March [2019], but it

wasn’t because of the bias of the Magistrate Judge

Ray Kent against pro se litigant plaintiff Clarence

Otworth,” and plaintiff requests “that a telephone

scheduling conference be held as soon as possible, or

grant plaintiff’s alternative motion for commencement

of discovery.” Motion for scheduling conference (ECF

No. 47). This matter having come full circle, plaintiff

once again wants to litigate this case via telephone.

For the reasons discussed, plaintiff’s motion regarding

Res.App.21a

a scheduling conference and to commence discovery

(ECF No. 47) is DENIED.

In its notice of hearing issued on March 26,

2019, the Court advised plaintiff that the scheduling

conference would be held on April 9, 2019, at 11:00

a.m. and further advised plaintiff as follows:

CONTINUATION OF RULE 16 SCHEDULING CONFERENCE SET FOR MARCH

26, 2019, AT 10:00 A.M. PLAINTIFF IS

NOTIFIED THAT HE MUST APPEAR IN

PERSON FOR THE CONFERENCE.

PLAINTIFF’S FAILURE TO APPEAR MAY

RESULT IN HIS CASE BEING DISMISSED

FOR LACK OF PROSECUTION.

Notice (ECF No. 36) (emphasis in original). As discussed, plaintiff failed to appear in person as ordered

by the Court.

Since commencing this lawsuit, plaintiff has filed

meritless motions. As discussed, plaintiff did not

attend the March 26th Rule 16 Conference and did

not seek the Court’s permission to attend by telephone.

When plaintiff failed to appear, the Court could not

reach him because his telephone was apparently out

of order. The fact that plaintiff has a defective telephone underscores the Court’s requirement that he

appear in person. When the Court adjourned the

Rule 16 Conference until April 9th, the Court made

clear to plaintiff that he had to appear in person. In

this regard, the Court was aware of plaintiff’s past

conduct which indicated that he either misunderstood

or disregarded Court rules, e.g.: plaintiff’s improper

attempts to serve PNC; plaintiff’s improper attempt

to secure a default judgment against PNC; plaintiff’s

Res.App.22a

filing of improper “sur-reply” briefs (ECF Nos. 10 and

11); plaintiff’s legally deficient claims set forth in the

original complaint; plaintiff’s statement that he

unilaterally “waived” personal appearance for a hearing

on his summary judgment motion; plaintiff’s request

that all hearings be conducted by telephone; and, plaintiff’s frivolous motion to join Congress as a plaintiff in

this action.

In short, the Court’s requirement that plaintiff

attend the April 9th Rule 16 Conference in person was

reasonable. Plaintiff has made it clear that he will

not attend any Court hearings. It is patently unreasonable for a pro se plaintiff to file a lawsuit, claim that

he cannot attend any court proceedings, and then

expect this Court to conduct all pre-trial matters, all

motions, and the trial via telephone. The Court cannot

adjudicate a lawsuit when the plaintiff refuses to

enter the courthouse.

Fed. R. Civ. P. 16(a) provides that:

In any action, the court may order the attorneys

and any unrepresented parties to appear for one

or more pretrial conferences for such purposes as:

(1) expediting disposition of the action;

(2) establishing early and continuing control so

that the case will not be protracted because

of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through

more thorough preparation; and

(5) facilitating settlement.

Res.App.23a

Fed. R. Civ. P. 16(a)(1)-(5). Plaintiff has refused to

attend a pretrial conference as directed by the Court.

The Court may issue sanctions if a party “fails to

appear at a scheduling or other pretrial conference.”

Fed. R. Civ. P. 16(f)(A). Sanctions may include “dismissing the action or proceeding in whole or in part.”

Fed. R. Civ. P. 16(f)(1), citing Fed. R. Civ. P. 37(b)(2)(v).

In this instance, the Court advised pro se plaintiff

that his action may be dismissed if he failed to

appear at the April 9, 2019, scheduling conference.

This Court cannot adjudicate a plaintiff’s claim if the

plaintiff refuses to appear in court when ordered.

Plaintiff is steadfast in his position that he can

litigate this case at home over the telephone. Plaintiff

cannot prosecute his case if he will not appear in

Court or follow the Court’s orders. Under the facts of

this case, there is no lesser sanction that the Court

can consider than to dismiss plaintiff’s lawsuit.

Accordingly, this case is DISMISSED.

IT IS SO ORDERED.

/s/ Ray Kent

United States Magistrate Judge

Dated: September 26, 2019

Res.App.24a

RESTRICTED ACCESS ORDER ISSUED BY THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MICHIGAN

(OCTOBER 4, 2019)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

________________________

CLARENCE MATTHEW OTWORTH,

Plaintiff,

v.

PNC BANK,

Defendant.

________________________

Case No. 1:18-CV-625

HON. RAY S. KENT

________________________

CLARENCE OTWORTH,

Plaintiff,

v.

FIFTH THIRD BANK, ET AL.,

Defendants.

________________________

Res.App.25a

Case No. 1:19-CV-55

HON. PAUL L. MALONEY

________________________

CLARENCE OTWORTH,

Plaintiff,

v.

TONY MOULATSIOTIS, ET AL.,

Defendants.

________________________

Case No. 1:19-cv-621

HON. PAUL L. MALONEY

Before: Robert J. JONKER

Chief United States District Judge.

Plaintiff Otworth has three pro se cases on the

docket of the Western District of Michigan. The undersigned is not the assigned Judicial Officer in any of

the cases, but plaintiff continues to write, presumably

because of the undersigned’s current role as Chief

Judge of the District. The undersigned has previously

informed plaintiff of the administrative limits of the

Chief Judge role, and further advised plaintiff of the

impropriety of ex parte communications, in any event.

This has not stopped the flow of correspondence.

The Court wrote plaintiff on October 1, 2019, in response to plaintiff’s September 24, 2019, submission.

On October 4, 2019, the Court received a new submission from plaintiff in a mailing postmarked October 2,

2019. The submission makes the same basic claims

Res.App.26a

about the Judicial Officers assigned to each of his

cases, but in more strident and vulgar tones. And the

submission makes the same demands on the undersigned for relief that is outside the scope of the office

of Chief Judge.

The Court is again writing to plaintiff to repeat

the same explanations previously provided. And the

Court will again direct a filing of the exchange of

correspondence on the record of each case to ensure a

compete archive of communications. This time the

filing will be on a restricted access basis to avoid

further burdening the public record with irrelevant

and increasingly profane assertions from plaintiff.

IT IS SO ORDERED.

/s/ Robert J. Jonker

Chief United State District Judge

Dated: October 4, 2019

Res.App.27a

ATTACHMENT TO RESTRICTED ACCESS

ORDER: LETTER FROM CLARENCE OTWORTH

TO CHIEF JUDGE JONKER

(OCTOBER 1, 2019)

CLARENCE OTWORTH

187 East Daniels Road

Twin Lake, MI 49457

(231) 292-1205

_______________________________________

Case No: 1:19-cv-55

Hon. Paul Lewis Maloney

_______________________________________

Mr. Robert J. Jonker, Chief Judge

United States District Court

685 Federal Building

110 Michigan Street, NW

Grand Rapids, MI 49503

Re: Magistrate Judge Raymond Kent

Dear Mr. Jonker:

Please take notice that on the accompanying

pleading—“Plaintiff’s Response to CMDA Response

Opposing Plaintiff’s Motion for Summary Judgment”—

the name Phillip J. Green appears as the current

Magistrate Judge—that is because I received a pleading from the Michigan Department of Attorney General

and it listed Phillip J. Green as the Magistrate Judge.

I assumed that you came to your senses and recused

that bias corrupt piece of shit, but you didn’t! I

received a letter from Raymond Kent today which,

for all intensive purposes, he dismissed by lawsuit

against Fifth Third Bank, et al., Why? Because, in

Res.App.28a

my demand that he be recused—I demanded that all

three of my lawsuits be set for trial, because Raymond

Kent had not ordered a scheduling conference in

my first case, Otworth v. PNC Bank 1:18-cv-625,

since I filed the case on June 04, 2018, 482 days ago.

Raymond Kent had not ordered a scheduling conference in my second case, Otworth v. Fifth Third Bank, et

al., 1:19-cv-55, since I filed the case on January 02,

2019, 270 days ago. And Raymond Kent had not

ordered a scheduling conference in my third case,

Otworth v. Tony Moulatsiotis, et al., 1:19-cv-621, since

I filed the case on August 01, 2019, 61 days ago.

According to Rule 16 (b)(2) of the Federal Rules of Civil

procedure, “The Judge must issue the scheduling

order as soon as practicable, but unless the judge

finds good cause for delay, the judge must issue it

within the earlier of 90 days after any defendant has

been served with the complaint or 60 days after any

defendant has appeared.” Magistrate Judge Raymond

Kent, the puppet of every law firm in Michigan, found

a damn good cause for delay—the defendants attorneys, in the law firms of Dinsmore & Shohl; Mika

Myers; CMDA; Plunkett Cooney; Williams, Hughes

& Cook, and Michigan’s Department of Attorney

General, representing defendants Governor Gretchen

Whitmer, Attorney General Dana Nessel, and Assistant Attorney General Samantha Reasner, DO NOT

WANT DISCOVERY! I urge you to recuse Raymond

Kent, and rescind his Order of September 26, 2019,

“that plaintiff’s motion to commence discovery and

postpone decisions in this case (Otworth v. Fifth Third

Bank, et. al, 1:19-cv-55 Judge Paul Lewis Maloney

/Magistrate Judge Ray Kent) is DENIED.” And SET

ALL THREE CASES FOR JURY TRIAL—as I declared

Res.App.29a

I wanted when I filed each case, and that I am entitled

to receive as an American citizen!

Govern Yourself Accordingly,

/s/ Clarence Otworth

cc: William Pelham Barr

cc: Christopher Asher Wray

cc: Donald John Trump

Res.App.30a

ATTACHMENT TO RESTRICTED ACCESS

ORDER: LETTER FROM CHIEF JUDGE JONKER

TO MR. OTWORTH

(OCTOBER 4, 2019)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

685 Gerald R. Ford Federal Building

110 Michigan Street, NW

Grand Rapids, Michigan 49503

_______________________________________

Mr. Clarence Otworth

187 East Daniels Road

Twin Lake, MI 49457

Re: Otworth v. Fifth Third Bank, et al.

Case No. 1:19-CV-55-PLM

Dear Mr. Otworth:

I received your letter postmarked October 2, 2019.

This case is assigned to my colleague, the Honorable

Paul Maloney. I am copying Judge Maloney on this

exchange of correspondence.

As the current Chief Judge of the District, I

have certain administrative responsibilities added to

my regular case load, but I have no authority whatsoever to review the judicial decisions of my colleagues

in cases assigned to them. If you continue to believe

you are entitled to any kind of judicial relief, you

must follow the appropriate rules and procedures for

litigating those issues before the Judicial Officer

assigned to your case—in this instance the Honorable

Paul L. Maloney.

Res.App.31a

The Court cannot communicate with you substantively regarding the issues in your case. Nor can we

deal with any issues regarding your case in the

absence of a properly filed motion. Any motion in the

case must be served on counsel for all parties in the

case. I will again direct the Clerk to file a copy of the

exchange of correspondence on the record of each

case to ensure a compete archive of communications.

Sincerely,

/s/ Robert J. Jonker

Chief United States District Judge

RJJ/ymc

cc: Hon. Paul L. Maloney

Res.App.32a

NOTICE OF HEARING

(MARCH 26, 2019)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

________________________

CLARENCE MATTHEW OTWORTH,

Plaintiff,

v.

PNC BANK,

Defendant.

________________________

Case No. 1:18-cv-00625-RSK

Before: Hon. Ray KENT,

United States Magistrate Judge.

TAKE NOTICE that a hearing has been scheduled as

set forth below:

Type of hearing(s): Scheduling Conference

Date/Time: April 9, 2019 11:00 AM

Magistrate Judge: Ray Kent

Place/Location:

584 Federal Building, Grand Rapids, MI

CONTINUATION OF RULE 16 SCHEDULING

CONFERENCE SET FOR MARCH 26, 2019, AT 10:00

A.M. PLAINTIFF IS NOTIFIED THAT HE MUST

Res.App.33a

APPEAR IN PERSON FOR THE CONFERENCE.

PLAINTIFF’S FAILURE TO APPEAR MAY RESULT

IN HIS CASE BEING DISMISSED FOR LACK OF

PROSECUTION.

Ray Kent

U.S. Magistrate Judge

By: /s/ Faith Hunter Webb

Judicial Assistant

Dated: March 26, 2019

Res.App.34a

MINUTES OF HEARING

(MARCH 26, 2019)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

MINUTES

Case No: 1 :18-cv-625-RSK

Caption: Otworth v. PNC Bank

Date: March 26, 2019

Time: 10:32-10:47 a.m.

Place: Grand Rapids

Magistrate Judge: Hon. Ray Kent

APPEARANCES

Plaintiff

Counsel:

Pro Se

Representing: Clarence Matthew Otworth

DID NOT APPEAR

Defendant

Counsel:

Jason M. Renner PNC Bank

Representing: PNC Bank

Res.App.35a

PROCEEDINGS

NATURE OF HEARING:

Ominbus hearing; date and time set for Rule 16

Scheduling Conference; pro se plaintiff was to appear

by telephone; the Court was unable to reach plaintiff;

Rule 16 scheduling conference to be rescheduled and

plaintiff to appear in person.

Proceedings Digitally Recorded

Deputy Clerk: S. Carpenter