Respondents Brief — Johnny Tippins, Petitioner v. NWI-1, Inc., et al.

Case No. 20-6120

SUPREME COURT OF THE UNITED STATES

JOHNNY TIPPINS,

Plaintiff-Appellant,

v.

PATRICIA CARUSO; BARBARA MEAGHER; JOHN DOES;

JANE DOES; GEORGE KUBIN; JAMES C. KELLY; BLAINE LAFLER, Warden,

Defendants-Appellees.

On Appeal from United States Circuit Court

for the Sixth Circuit,

Case No. 17-1508

DEFENDANTS-APPELLEES GEORGE KUBIN AND JAMES C. KELLY’S

MOTION TO ENJOIN PLAINTIFF-APPELLANT FROM FUTURE FILINGS WITHOUT

LEAVE OF COURT

PLUNKETT COONEY

By:

MARY MASSARON (P43885)

LOUIS RONAYNE (P81877)

Attorneys for Defendants-Appellees

George Kubin and James C. Kelly

38505 Woodward Ave., Suite 100

Bloomfield Hills, MI 48304

(313) 983-4801

mmassaron@plunkettcooney.com

TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES .................................................................................................. II

PERTINENT CASE BACKGROUND ...................................................................................... 1

MOTION STANDARD ......................................................................................................... 3

ARGUMENT ...................................................................................................................... 4

RELIEF............................................................................................................................. 5

CERTIFICATE OF SERVICE................................................................................................ 1

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS ........................................... 1

i

INDEX OF AUTHORITIES

Page

CASES

Banks v. City of Whitehall,

344 F.3d 550 (6th Cir. 2003) ...................................................................................... 1

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ...................................................................................................... 3

Collyer v. Darling,

98 F.3d 211 (6th Cir. 1996) ........................................................................................ 1

Feathers v. Chevron U.S.A., Inc.,

141 F.3d 264 (6th Cir. 1998) ...................................................................................... 4

Lau v. Meddaugh,

229 F.3d 121 (2d Cir. 2000)........................................................................................ 4

Marbly v Several Known & Unknown Named Employees of FBI,

72 Fed Appx 387 (6th Cir. 2003)................................................................................ 4

Ortman v. Thomas,

99 F.3d 807 (6th Cir. 1996) ........................................................................................ 4

Tropf v. Fid Nat Title Ins Co.,

289 F.3d 929 (6th Cir. 2002) ...................................................................................... 4

Wolfe v. Perry,

412 F.3d 707 (6th Cir. 2005) ...................................................................................... 1

RULES

Fed. R. App. P. 40(a) ...................................................................................................... 2

STATUTES

28 U.S.C. § 1651(a) ........................................................................................................ 3

42 U.S.C. § 1983 ............................................................................................................. 1

M.C.L. 600.5805(10)....................................................................................................... 1

ii

PERTINENT CASE BACKGROUND

This case stems from Tippins’ 42 U.S.C. § 1983 claim that his constitutional

rights under the Eighth Amendment of the United States Constitution were

violated when he was forced to drink contaminated water while incarcerated. (R.E.

1, Complaint, Page ID # 1-13).

Tippins has unsuccessfully pursued his claim at every level imaginable, from

the district court, and then on direct appeal and collateral review. In October 2015,

having determined that this action fell outside the three-year limitation period

under M.C.L. 600.5805(10), the district court followed the magistrate judge’s

recommendation and dismissed Tippins’ claims with prejudice. (R.E. 49, Order

10/14/15, Page ID # 399-405).1

Tippins brought several post-judgment motions, including a motion for oral

argument (R.E. 52, Page ID # 409-410), a motion for relief from judgment (R.E. 53,

Page ID # 411-423), and another motion to amend his complaint (R.E. 55, Page ID #

443-451), all of which the district court denied. (R.E. 72, Opinion and Order,

1 More specifically, the district court determined that the applicable statute of

limitations was three years under M.C.L. 600.5805(10) because there is no

applicable “statute of limitations governing § 1983 actions, [and therefore] ‘federal

courts must borrow the statute of limitations governing personal injury actions in

the state in which the section 1983 action was brought.’ ” Wolfe v. Perry, 412 F.3d

707, 713-714 (6th Cir. 2005) (quoting Banks v. City of Whitehall, 344 F.3d 550, 553

(6th Cir. 2003)). Under federal law, the limitations period “begins to run when the

plaintiff knows or has reasons to know that the act providing the basis for his or her

injury has occurred.” Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996).

Consequently, the district court agreed with the magistrate and held that all

Tippins’ claims were barred because “Tippins knew that he suffered an injury no

later than 2007,” but did not file his first complaint until seven years later, in 2014.

(Id., Page ID # 402-403). A corresponding judgment was entered. (RE 50, Judgment,

Page ID # 406).

1

2/16/17, Page ID # 666-670). The district court further enjoined Tippins from further

filings without leave of court. (Id.). Tippins subsequently filed a motion for leave in

which he asked the district court to reopen the time for him to file a notice of

appeal. (R.E. 74, Application Pursuant to Court Order Seeking Leave to File,

4/17/17, Page ID # 676-684). The district court reopened the time to appeal the

February 16, 2017 Order until May 4, 2017, and Tippins accordingly filed a notice of

appeal within that time frame. (R.E. 75, Order Reopening the Time to Appeal the

Court’s Order, Page ID # 687; R.E. 76, Notice of Appeal, 5/1/17, Page ID # 689).

Ultimately, the Sixth Circuit affirmed the district court’s dismissal of the

claim on March 21, 2018. (R.E. 23-2, 3/21/18 Opinion).2 Tippins petitioned for

rehearing, which the court denied, having concluded that it “did not misapprehend

or overlook any point of law or fact when it issued the March 21, 2018, order,” Fed.

R. App. P. 40(a). (R.E. 25-2, 4/24/18 Order). Tippins then unsuccessfully petitioned

for a writ of certiorari (10/1/18 Entry on United States Supreme Court Docket No.

17-9272).

Next, Tippins filed his first in a series of three vexatious motions to recall the

mandate in the court of appeals. The court denied Tippins’ motion on the grounds

that he failed to demonstrate exceptional circumstances warranting such relief.

(R.E. 37, 7/9/20 Order). Nevertheless, immediately after the court denied his initial

2 For a complete statement of the pertinent procedural history, see the attached

6/10/2020 Response to Tippins’ First Motion to Recall the Mandate. (R.E. 35)

(Exhibit A). To further illustrate the redundancy of these motions, we have also

included the 8/12/20 Response to Tippins’ Second Motion to Recall the Mandate.

(R.E. 39) (Exhibit B).

2

motion to recall the mandate, Tippins unsuccessfully filed a virtually identical

motion. (R.E. 40, 8/19/20 Order). Naturally, Tippins immediately filed a third

motion to recall the mandate on essentially the same grounds the court had

repeatedly rejected. (R.E. 42, 8/28/20 Motion). At this point, realizing they had to

repeatedly defend against frivolous and vexatious motions with no end in sight,

Kubin and Kelly moved to enjoin Tippins from future filings in the Sixth Circuit

without leave of court. (R.E. 44-1, 9/3/2020 Motion).

On October 1, 2020, the Sixth Circuit denied Tippins’s third motion to recall

the mandate on the grounds that he “failed to demonstrate exceptional

circumstances warranting recalling the mandate,” given that he was “merely

attempting to reargue [the] court’s determination that his complaint was untimely,

which is not a basis for recalling the mandate.” (R.E.47-1, 10/1/2020 Order, p 2).

The court, in turn, granted Kubin and Kelly’s motion to enjoin Tippins from future

filings without leave of court. (Id.)

Tippins now, yet again, petitions for certiorari.

MOTION STANDARD

This Court is authorized under 28 U.S.C. 1651(a) to enjoin litigants who

abuse the court system by harassing their opponents. See also Chambers v.

NASCO, Inc., 501 U.S. 32, 43-46 (1991) (there exists no constitutional right of

access to the courts to prosecute an action that is frivolous or malicious).

3

ARGUMENT

Tippins continues to demonstrate a pattern of making vexatious filings, with

no end in sight, evidenced most recently by his filing of the instant petition for

Certiorari which has no merit.

“There is nothing unusual about imposing prefiling restrictions in matters

with a history of repetitive or vexatious litigation.” Feathers v. Chevron U.S.A.,

Inc., 141 F.3d 264, 269 (6th Cir. 1998). Thus, “it is permissible to require one who

has abused the legal process to make a showing that a tendered [action] is not

frivolous or vexatious before permitting it to be filed.” Tropf v. Fid Nat Title Ins Co.,

289 F.3d 929, 940 (6th Cir. 2002), quoting Ortman v. Thomas, 99 F.3d 807, 811 (6th

Cir. 1996); see Marbly v Several Known & Unknown Named Employees of FBI, 72

F. App’x 387, 388 (6th Cir. 2003) (same).3

It is abundantly clear that Tippins does not seek meritorious collateral relief

in this Court or the lower courts. Instead, having filed three meritless and

regurgitated motions to recall the mandate, Tippins “has diverted [this Court’s]

attention and resources from those that are brought in good faith and constitutes an

abuse of the legal system.” Wrenn, 50 F. 3d at *3. His actions thus demonstrate that

he will continue, as he has, to file vexatious pleadings that will do nothing but

hinder the Court’s administration of justice.

3 See also Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (“[t]he district courts

have the power and the obligation to protect the public and the efficient

administration of justice from individuals who have a history of litigation entailing

vexation, harassment and needless expense to other parties and an unnecessary

burden on the courts and their supporting personnel”).

4

RELIEF

Defendants-Appellees George Kubin and James Kelly respectfully request

that this Honorable Court enter an order enjoining Tippins from submitting further

filings without leave of Court.

Respectfully submitted,

PLUNKETT COONEY

By:

Dated: November 24, 2020

5

s/Mary Massaron

MARY MASSARON (P43885)

LOUIS RONAYNE (P81877)

Attorneys for Defendants-Appellees

George Kubin and James C. Kelly

38505 Woodward Ave., Suite 100

Bloomfield Hills, MI 48304

(313) 983-4801

mmassaron@plunkettcooney.com

CERTIFICATE OF SERVICE

MARY MASSARON, attorney with the law firm of PLUNKETT COONEY, being first

duly sworn, deposes and says that on the 24th day of November, 2020, she caused a

copy of this document to be served upon all parties of record, and that such service

was made electronically upon each counsel of record so registered with the United

States Supreme Court, and via U.S. Mail to any counsel not registered to receive

electronic copies from the court, by enclosing same in a sealed envelope with first

class postage fully prepaid, addressed to the above, and depositing said envelope

and its contents in a receptacle for the U.S. Mail.

PLUNKETT COONEY

By:

Dated: November 24, 2020

s/Mary Massaron

MARY MASSARON (P43885)

Attorney for Defendants-Appellees

George Kubin and James C. Kelly

38505 Woodward Ave., Suite 100

Bloomfield Hills, MI 48304

(313) 983-4801

mmassaron@plunkettcooney.com

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

Description of entry no.

Date

Complaint

Order

Judgment

Motion for Oral Argument

Motion for Relief from Judgment

Second Motion to Amend Complaint

Opinion and Order

Application Pursuant to Court Order

Seeking Leave to File

Order Reopening the Time to Appeal

the Court’s Order

Notice of Appeal

Open.00560.71384.25171304-1

Page ID #

3/4/14

10/14/15

10/14/15

11/2/15

11/2/15

1/8/16

2/16/17

4/17/17

Record

Entry No.

1

49

50

52

53

55

72

74

4/20/17

75

687

5/1/17

76

689

1-13

399-405

406

409-410

411-426

443-453

666-670

676-684