Petition for Writ of Certiorari — Imre Kifor, Petitioner v. Massachusetts, et al.

Case: 24-1075

Document: 00118216286

Page: 1

Date Filed: 11/19/2024

Entry ID: 6682347

United States Court of Appeals

For the First Circuit

No. 24-1075

IMRE K1FOR,

Plaintiff - Appellant,

v.

THE COMMONWEALTH OF MASSACHUSETTS; GOVERNOR MAURA HEALEY, official

capacity; ATTORNEY GENERAL ANDREA CAMPBELL, official capacity;

COMMISSIONER GEOFFREY E. SNYDER, official capacity; DEPARTMENT OF

REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION; MIDDLESEX PROBATE AND

FAMILY COURT; LIFESTANCE HEALTH, f/k/a The Counseling Center of New England;

ATRIUS HEALTH; BARBARA A. DUCHESNE; CYNTHIA S. OULTON,

Defendants - Appellees.

Before

Barron, Chief Judge.

Gelpi and Aframe, Circuit Judges.

JUDGMENT

Entered: November 19, 2024

Appellant Imre Kifor appeals pro se from a judgment in the District Court for the District

of Massachusetts and from an order denying reconsideration under Federal Rule of Appellate

Procedure 59(e). We have jurisdiction under 28 U.S.C. § 1291.

Appellee The Counseling Center of New England has filed a motion for summary

disposition. Appellant has filed his opening brief, and briefing is complete. Appellant also has

made numerous other filings.

Our review of the dismissal of the complaint is de novo. See Nunez Colon v. ToledoDavila. 648 F.3d 15, 19 (1st Cir. 2011). We review the denial of Appellant's post-judgment Rule

59(e) motion for abuse of discretion. See Perez v. Lorraine Enters.. Inc.. 769 F.3d 23, 28 (1st Cir.

2014).

APPENDIX A - 000001

Case: 24-1075

Document: 00118216286

Page: 2

Date Filed: 11/19/2024

Entry ID: 6682347

In light of his pro se status, we read Appellant's arguments and filings liberally. See

Erickson v. Pardus. 551 U.S. 89, 94 (2007) (per curiam). After a careful review of the arguments

raised by Appellant in his opening brief, we can discern no compelling argument for any reversible

error or abuse of discretion.

The motion for summary disposition is GRANTED. Any remaining pending motions or

requests for relief by Appellant, to the extent not mooted by the foregoing, are DENIED. The

judgment of the district court is AFFIRMED. See Local Rule 27.0(c).

By the Court:

Anastasia Dubrovsky, Clerk

cc:

Imre Kifor

Katherine B. Dirks

Wesley S. Chused

Daniel R. Sonneborn

John P. Puleo

APPENDIX A - 000002

Case l:23-cv-12692-PBS

Document 13

Filed 12/21/23

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

IMRE KIFOR,

)

Plaintiff,

v.

)

)

)

)

C.A. No. 23-12692-PBS

THE COMMONWEALTH OF

MASSACHUSETTS, et al.,

)

Defendants.

MEMORANDUM AND ORDER

December 21, 2023

Saris, D.J.

On November 7, 2023, pro se plaintiff Imre Kifor filed a

purported class action complaint accompanied by two affidavits

and a motion seeking leave to proceed in forma pauperis.

The

complaint asserts causes of action for alleged violations of

Titles VI and VII of the Civil Rights Act of 1964, the Age

Discrimination in Employment Act, 29 U.S.C. § 621; the Age

Discrimination Act, 29 U.S.C. § 6101; 42 U.S.C. §§ 1981 and

1985; and civil RICO, 18 U.S.C. § 1962.

Named as defendants are

the Commonwealth of Massachusetts; Governor Maura Healy;

Attorney General Andrea Campbell; Massachusetts Department of

Revenue Commissioner Geoffrey Snyder; Middlesex Probate and

Family Court; the Counseling Center of New England; Atrius

Health; and Barbara Duchesne and Cynthia S. Oulton.

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For the reasons set forth below, the Court will grant the

in forma pauperis motion and dismiss this action.

I.

Motion for Leave to Proceed in Forma Pauperis

Upon review of Kifor's financial disclosures, the Court

concludes that he may proceed without prepayment of the fee.

Accordingly, the motion is GRANTED.

II.

Review of the Complaint

When a plaintiff is allowed to proceed in forma pauperis,

the Court may conduct a preliminary review of the complaint and

dismiss sua sponte any claim that is frivolous, malicious, fails

to state a claim on which relief may be granted, or seeks

monetary relief against a defendant who is immune from such

relief.

See 28 U.S.C. § 1915 (e) (2) .

Although "dismissal on

the court's own initiative, without affording the plaintiff

either notice or an opportunity to be heard ... is disfavored

in federal practice," "[i]f it is crystal clear that the

plaintiff cannot prevail and that amending the complaint would

be futile," then a dismissal sua sponte is appropriate.

Gonzalez-Gonzalez v. United States, 257 F.3d 31, 36-37 (1st Cir.

2001) .

In conducting this review, the Court liberally construes

the complaint because Kifor is proceeding pro se.

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A.

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Kifor's Complaint and Previous Actions in this Court

In this action, Kifor contends that he has an employment

relationship with the state, the defendants have forced him into

indigency through child support orders and the defendants are

engaged in multiple racketeering schemes.

With his complaint,

Kifor attaches a "right to sue" notice that was issued by the

Equal Employment Opportunity Commission ("EEOC") state that the

charge of discrimination was dismissed because Kifor was "not in

an employment relationship with the Respondent."

See Doc. No.

1-2, p. 7.

The Court's records indicate that the instant action is the

sixth case Kifor has filed in this Court stemming from his

dissatisfaction with the proceedings in the Family Court and the

government's efforts to enforce child support orders.

See Kifor

v. Commonwealth of Massachusetts, et al., C.A. No. 22-11948-PBS

(screening dismissal), aff'd (1st Cir. March 20, 2023); Kifor v.

Commonwealth of Massachusetts, et al., C.A. No. 22-11141-PBS

(screening dismissal), aff'd (1st Cir. Aug. 4, 2023); Kifor v.

Commonwealth of Massachusetts, et al., C.A. No. 21-11968-IT

(screening dismissal); Kifor v. Commonwealth of Massachusetts,

et al., C.A. No. 21-10699-IT (screening dismissal); and Kifor v.

Middlesex Probate & Family Ct., C.A. No. 20-11601-PBS (summary

dismissal of § 2241 habeas petition).

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Since the filing of this action on November 7, 2023, Kifor

See

has filed several supplemental pleadings and notices.

Docket Nos. 6

11.

Kifor appears to have served each defendant

with the form Notice of a Lawsuit and Request to Waive Service

of a Summons (AO 298), see Docket No. 6, and counsel for

defendant Counseling Center of New England completed the Waiver

of Service of Summons (form AO 399).

B.

See Docket No. 10.

The Complaint is Subject to Dismissal

As an initial matter, the court finds that Kifor, as a pro

se plaintiff, cannot act as a class representative.

A basic

requirement for all class actions is that the named plaintiff

can fairly and adequately represent the class.

P. 23 (a) (4) .

See Fed. R. Civ.

"Although 28 U.S.C. § 1654 permits persons to

proceed pro se, this provision does not allow unlicensed lay

people to represent other pro se litigants."

Murphy v. Baker,

No. 19-12481-PBS, 2020 WL 3420632, at *1 (D. Mass. June 22,

2020)

(citations omitted).

Kifor cannot fairly and adequately

represent the interests of the class that he has identified. See

Avery v. Powell, 695 F. Supp. 632, 643 (D.N.H. 1988)

(a pro se

plaintiff did not conform with the class certification

requirement that he be able to "fairly and adequately" protect

the interests of the class).

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Next, the attempt by Kifor to bring the same claims that

have already been asserted in his earlier actions are barred by

res judicata.

The doctrine of res judicata is applicable where

the following elements exist: "(1) the earlier suit resulted in

a final judgment on the merits,

(2) the causes of action

asserted in the earlier and later suits are sufficiently

identical or related, and (3) the parties in the two suits are

sufficiently identical or closely related." Airframe Sys. v.

Raytheon Co., 601 F.3d 9, 14 (1st Cir. 2010).

Kifor contends

that patterns of racketeering involved "2 colluding Mothers, 3

independent Family Court dockets, 4 separate GALs, 7 consecutive

judges, 21 doctors and therapists, and over 30 lawyers."

Compl.

at SI 75.

Kifor's complaint fails to state a discrimination claim

under Title VII because he is not an employee of the state.

See

Kifor v. Commonwealth, No. 23-1013 (1st Cir. Mar. 20, 2023)

(citing Casey v. Pep't of Health & Hum. Servs., 807 F.3d 395,

404-05 (1st Cir. 2015)

(describing standard for establishing

employment relationship under Title VII)).

The claims against the claims against the Commonwealth and

Probate and Family Court and the monetary damages claims against

Governor Healy; Attorney General Campbell; Commissioner Snyder

are barred by sovereign immunity.

5

Sovereign immunity deprives

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the court of subject matter jurisdiction over a claim.

Valentin

v. Hosp. Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). To

the extent Kifor seeks injunctive relief against state officials

for an alleged ongoing violation of a federal law, Kifor has not

stated a viable claim for relief under the narrow exception to

sovereign immunity.

Moreover, the Rooker-Feldman doctrine or Younger abstention

bar Kifor's challenge to state court proceedings.

Finally,

Kifor's complaint fails to state a claim upon which relief may

be granted against the Counseling Center of New England, Atrius

Health, Barbara Duchesne and Cynthia S. Oulton.

Because it is "crystal clear" that allowing Kifor to amend

the complaint in this action could not cure the pleading

deficiencies, the Court will dismiss this action.

Ill. Filing Injunction Warning

"A district court has the power to enjoin litigants who

abuse the court system by filing groundless and vexatious

litigation." Stefanik v. Town of Huntington, 536 F. Supp. 2d

106, 114 (D. Mass. 2008)

(citing Elbery v. Louison, 201 F.3d

427, 1999 WL 1295871, at *2 (1st Cir. 1999)

(per curiam)

(table

decision)); see also 28 .U.S.C. § 1651 (providing that courts may

issue all writs necessary or appropriate in aid of their

respective jurisdictions). The Court also has the power to

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sanction litigants who file pleadings, motions or other papers

"for any improper purpose, such as to harass or to cause

unnecessary delay or needlessly increase in the cost of

litigation." Simon v. Navon, 71 F.3d 9, 17 (1st Cir. 1995)

(citing Fed. R. Civ. P. 11). This determination is left to the

Court's "considered judgment." Id. Pro se plaintiffs are subject

to sanctions, but the Court must consider the state of the pro

se party's sophistication and experience, or lack thereof, when

determining the nature and severity of sanctions to be imposed.

See Lefebvre v. Commissioner, 830 F.2d 417, 420-21 (1st Cir.

1987) .

"Vexatious conduct occurs where a party's actions are

'frivolous, unreasonable, or without foundation' even without

the presence of 'subjective bad faith. t n Azubuko v. MBNA Am.

Bank, 396 F.Supp. 2d 1, 7 (D. Mass. 2005)

(quoting Local 285,

Serv. Emps. Int’l Union v. Nonotuck Res. Assocs., Inc., 64 F.3d

735, 737 (1st Cir. 1995)). "Courts in this circuit have

repeatedly found that a plaintiff who files multiple frivolous

and vexatious lawsuits arising out of the same or similar events

can be enjoined from filing further lawsuits without leave."

Clemens v. Town of Scituate, No. 13-11598-FDS, 2014 WL 12792990,

at *6 (D. Mass. June 16, 2014)

(collecting cases). However,

" [1]itigiousness alone will not support an injunction against a

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plaintiff." Otis Elevator Co. v. Int'l Union of Elevator

Constructors, Local 4, 408 F.3d 1, 10 (1st Cir. 2005)

(quoting

Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir. 1980)).

Here Kifor has filed several unsuccessful lawsuits with

allegations arising out of the same or similar events against

identical or substantially similar parties.

Nonetheless, the

dismissal of his earlier actions has not deterred Kifor from

again filing suit.

Kifor's conduct rises above the level of

litigiousness and qualifies as vexatious. His repeated filing of

lawsuits concerning his family court matters is an abuse of the

process.

Given the number of Kifor's filings to date, the Court is

concerned that Kifor will continue to make such filings with

this Court that waste both judicial time and resources.

Therefore, the Court hereby WARNS Kifor that if he continues to

file in this Court any future complaints concerning the

proceedings in the state court, he may be restrained from filing

any future complaints with this Court as well as become subject

to other filing restrictions and sanctions.

IV.

Conclusion

For the foregoing reasons, the Court hereby orders:

1.

The motion for leave to proceed in forma pauperis is

GRANTED.

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2.

This action is DISMISSED.

3.

Plaintiff is warned that if he continues to file any

future complaints in this Court concerning the proceedings in

state court, he may be restrained from filing any future

complaints with this Court as well as become subject to other

filing restrictions and sanctions.

SO ORDERED.

/s/ Patti B. Saris

PATTI B. SARIS

UNITED STATES DISTRICT JUDGE

9

Case: 24-1075

Document: 00118239351

Page: 1

Date Filed: 01/23/2025

Entry ID: 6695302

United States Court of Appeals

For the First Circuit

No. 24-1075

IMRE KIFOR,

Plaintiff - Appellant,

v.

THE COMMONWEALTH OF MASSACHUSETTS; GOVERNOR MAURA HEALEY, official

capacity; ATTORNEY GENERAL ANDREA CAMPBELL, official capacity;

COMMISSIONER GEOFFREY E. SNYDER, official capacity; DEPARTMENT OF

REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION; MIDDLESEX PROBATE AND

FAMILY COURT; LIFESTANCE HEALTH, f/k/a The Counseling Center of New England;

ATRIUS HEALTH; BARBARA A. DUCHESNE; CYNTHIA S. OULTON,

Defendants - Appellees.

Before

Barron, Chief Judge.

Gelpi, Montecalvo,

Rikelman, and Aflame, Circuit Judges.

ORDER OF COURT

Entered: January 23, 2025

The petition for rehearing having been denied by the panel ofjudges who decided the case,

and the petition for rehearing en banc having been submitted to the active judges of this court and

a majority of the judges not having voted that the case be heard en banc, it is ordered that the

petition for rehearing and petition for rehearing en banc be denied.

By the Court:

Anastasia Dubrovsky, Clerk

cc:

Imre Kifor, Katherine B. Dirks, Wesley S. Chused, Daniel R. Sonneborn, John P. Puleo

APPENDIX A - 000004

Additional material

from this filing is

available in the

Clerk's Office.