Opposition Brief — Simmons v. Frankel

No. 92-1762

In The FICE OF THE CLERK

Supreme Court of the United States

October Term, 1992

*

AUGUSTUS J. SIMMONS,

Petitioner,

V.

EMIL H. FRANKEL, et al.,

Respondents.

.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit .

e

BRIEF FOR RESPONDENTS EMIL H. FRANKEL,

COMMISSIONER OF TRANSPORTATION AND

RICHARD BLUMENTHAL, ATTORNEY GENERAL

IN OPPOSITION TO PETITION

¢

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

KENNETH N. TEDFORD

Assistant Attorney General

State of Connecticut

55 Elm Street

Hartford, CT 06106

(203) 566-2257

) (Counsel of Record)

ARNOLD K. SHIMELMAN

Assistant Attorney General

State of Connecticut

251 Maxim Road

Hartford, CT 06114

(203) 566-2298

Attorneys for Respondents

eth

Eee ee eae ee eae ee

QUESTION PRESENTED

Should petitioner’s cause be reviewed by this Court?

ii

TABLE OF CONTENTS

Page

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DUPLR EES GOW EUG GNU cic iscawavetesancaueee 1

REASONS FOR DENIAL OF THE PETITION....... 5

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APPENDIX

ili

TABLE OF AUTHORITIES

Page

Cases:

Connecticut Pharmaceutical Association v. Milano,

191 Conn. 555, 468 A.2d 1230 (1983)............... 6

Gagne v. Norton, 189 Conn. 29, 453 A.2d 1162

ERR CG EC sve nas nsesceccscsccccccccccese 6

Migra v. Warren City School District Board of Educa-

tion, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed. 2d 56

EE IIe 6

Rooker v. Fidelity Trust Co., 261 U.S. 114, 43 S.Ct.

I EOE occ c cece ese cee 5, 6

Simmons v. Wetherall, 180 Conn. 587, 430 A.2d 1296

eee sa chs se nscscccccccccessccsc 2, 6

FEDERAL STATUTE:

SE 5, 6

eke Star lla aaa

No. 92-1762

¢

In The

Supreme Court of the United States

October Term, 1992

*

AUGUSTUS J. SIMMONS,

Petitioner,

V.

EMIL H. FRANKEL, et al.,

Respondents.

.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

¢

BRIEF FOR RESPONDENTS EMIL H. FRANKEL,

COMMISSIONER OF TRANSPORTATION AND

RICHARD BLUMENTHAL, ATTORNEY GENERAL

IN OPPOSITION TO PETITION

4

The respondents, Emil H. Frankel, Commissioner of

Transportation and Richard Blumenthal, Attorney Gen-

eral, pray that a writ of certiorari, as requested by the

petitioner, not be issued to review the judgment of the

United States Court of Appeals for the Second Circuit,

rendered on February 23, 1993.

¢

STATEMENT OF THE CASE

Since the early 1960’s, the petitioner has been in

almost constant litigation with the State of Connecticut

1

and other defendants regarding his alleged ownership of

three (3) parcels of land located along route #20 in the

Town of East Granby, Connecticut, which parcels are part

of the State-owned Bradley International Airport.

In 1980, the Connecticut Supreme Court finally put to

rest the prior 20 years of litigation by affirming two

Superior Court judgments, clearly and absolutely vesting

title to the parcels in question with the State of Connecti- :

cut (Simmons v. Wetherall, 180 Conn. 587, 430 A.2d 1296

(1980).

Mr. Simmons has not accepted this final appellate

court decision, and to this date, has initiated seven (7)

State Superior Court actions and, including this case, five

(5) District Court of Connecticut matters against the State

and others all seeking to reverse the 1980 Connecticut

Supreme Court decision and the trial court judgments.

Mr. Simmons has not prevailed in any of these matters.

The chart set forth in the Appendix summarizes the post

1978 litigation initiated by Mr. Simmons. App. A-1.

In 1987, the United States of America filed a petition

for removal of a Superior Court action to the District

Court of Connecticut. That case is captioned Augustus ].

Simmons v. William Burns, et al. Civil No. H-87-732 (JAC)

D.Conn. The state defendants filed a motion to dismiss

the action. The Court granted the State’s motion (Ruling

On Motion To Dismiss, November 10, 1987) (App. A-5).

Mr. Simmons filed a motion to set aside the dismissal,

and the Court (Cabranes, J.) on March 15, 1988 ruled on

this and a number of other pending motions filed by the

plaintiff and the other defendants, which Ruling and

Order sustained the dismissal and also enjoined (sua

sponte) Mr. Simmons from further District Court litigation

regarding his former ownership of the three parcels of

land. (See Ruling On Pending Motions And Orders App.

A-7.)

This Order, including the injunction, was affirmed by

the United States Court of Appeals for the Second Circuit

(Simmons v. Burns. et al., Docket No. 88-6093 (2d Cir., Oct.

5, 1988 unreported) (App. A-26) and this Supreme Court

denied a petition for a writ of certiorari in Simmons v.

Burns, et al., No. 88-693, Nov. 28, 1988. App. A-29.

Notwithstanding the above cited District Court and

Court of Appeals Rulings and Orders enjoining him, the

petitioner in 1992 initiated a Connecticut District Court

action which the District Court dismissed, sua sponte,

(Simmons v. Frankel, et al., No. 292 CV00395(PCD), July

1992). PApp. at App. 8a-10a.!

The United States Court of Appeals for the Second

Circuit affirmed the District Court dismissal and the

imposition of sanctions against the petitioner (Simmons v.

Frankel, et al., No. 92-6208, Feb. 23, 1993). (P.App. at App.

la-7a). The Court Order states in part as follows:

Not dissuaded by the final judgment granting

title of the disputed real property to the State of

Connecticut, Simmons continued to pursue the

issue. Simmons filed seven state and five federal

proceedings after the 1978 stipulation was certi-

fied. Then in a 1988 order, Judge Cabranes

enjoined Simmons from filing “any state or fed-

eral claims in any federal court against any of

1 The Appendix to the petition is designated “P.App. at

App. __.”

the defendants named in the complaint in this

lawsuit if such lawsuit related to his alleged

ownership” of the disputed real: property.

Affirming Judge Cabranes’s order in all

respects, this Court warned that any violation of

that injunction could be punished as contempt

of court and imposed double court costs against

Simmons. Simmons v. Burns, No. 88-6093 (2d Cir.

Oct. 5, 1988) (unpublished summary order).

Despite this Court’s attempt to stem the flow of

vexatious litigation by Simmons, we are con-

fronted once again with an attempt by him to

litigate a matter barred by res judicata. Notwith-

standing Simmons’s attempt to circumvent the

injunction by changing the named defendants,

the instant complaint clearly relates to Sim-

mons’s ownership of the East Granby land.

Thus, Simmons has violated Judge Cabranes’s

injunction. Furthermore, even without the

injunction, Judge Dorsey’s dismissal of the com-

plaint sua sponte would be affirmed based on res

judicata grounds. P.App. at App. 3a-4a.

The petitioner has now filed the instant Petition for :

Writ of Certiorari. The issues raised in this litigation are, |

in essence, the same that petitioner has repeatedly raised

in the many prior actions instituted by the petitioner and

which have been conclusively resolved against him. The

petitioner now asks this Supreme Court to consider them

yet again. Clearly, under Rule 10 of the Rules of the

Supreme Court of the United States, the considerations

governing review on the writ of certiorari establish

beyond doubt that petitioner’s cause does not warrant

review.

REASONS FOR DENIAL OF THE PETITION

The respondents respectfully represent that there are

no special or important reasons to support the Petition.

The United States Court of Appeals for the Second Circuit

has not rendered a decision in conflict with the decision

of another United States court of appeals on the same

matter; has not decided a federal question in conflict with

the Connecticut Supreme Court; nor has the Appeals

Court so far departed from the accepted and usual course

of judicial proceedings as to call for the exercise of this

Supreme Court’s power of supervision. Further, the

Appeals Court decision is not in conflict with decisions of

this Court. (See Rule 10 of the Rules of the Supreme Court

of the United States.)

ARGUMENT

The decision of the District Court dismissing the

complaint and imposing sanctions against the petitioner

and the summary order of the Court of Appeals for the

Second Circuit affirming the District Court order were

both appropriate, proper and in accord with the doctrine

of res judicata, the doctrine of Rooker v. Fidelity Trust Co.,

261 U.S. 114, 43 S.Ct. 288, 66 L.Ed. 396 (1923), and the

prohibition of using the federal courts to collaterally

attack state court judgments as set forth in 28 U.S.C. Sec.

1738. |

Further, the petitioner by initiating this most current

litigation has clearly, directly, intentionally and without

justification violated the valid and outstanding 1988

Order of the District Court (Cabranes, J.) prohibiting and

enjoining him from litigating these same issues. (See Rul-

ing on Pending Motions and Order Simmons v. Burns, et

al., App. A-21-23.)

In a civil rights suit under 42 U.S.C. Sec. 1983, enti-

tled Migra v. Warren City School District Board of Education,

465 U.S. 75, 104 S.Ct. 892, 79 L.Ed. 2d 56 (1984), this

Supreme Court, at page 896, stated as follows regarding

res judicata and the federal full faith and credit statute 28

U.S.C. Sec. 1738:

It is now settled that a federal court must give to

a state-court judgment the same preclusive

effect as would be given that judgment under

the law of the state in which the judgment was

rendered.

In Connecticut, a valid judgment entered by agree-

ment or consent is conclusive to the same extent as a

valid judgment rendered after adjudication on the merits.

See Connecticut Pharmaceutical Association v. Milano, 191

Conn. 555, 558 (1983); Gagne v. Norton, 189 Conn. 29, 34

(1982). The Connecticut Supreme Court in Simmons v.

Wetherall, 180 Conn. 587, 430 A.2d 1296 (1980), affirmed

the lower court judgments whereby title of the disputed

land vested in the State of Connecticut. In the instant

action, petitioner has once again asserted claims which

rest upon his alleged ownership of the same three par-

cels.

In Rooker, supra this Supreme Court set forth the

proposition that the federal courts are not to be used as

appeal courts from state court decisions. Therefore, the

petitioner cannot litigate the same issues before the fed-

eral courts that were conclusively decided by the Con-

necticut Supreme Court in 1980.

¢

CONCLUSION

Based upon the foregoing, it is clear that the peti-

tioner has not established any basis upon which this

Court, in its discretion, should grant review. Accordingly,

it is respectfully urged that the petition be denied.

Respectfully submitted,

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

KENNETH N. TEDFORD

Assistant Attorney General

State of Connecticut

55 Elm Street

Hartford, CT 06106

(203) 566-2257

(Counsel of Record)

ARNOLD K. SHIMELMAN

Assistant Attorney General

State of Connecticut

251 Maxim Road

Hartford, CT 06114

(203) 566-2298

Attorneys for Respondents

APPENDIX

A-i

INDEX TO APPENDIX

Re Me IN nia Sones ctinw heh vaduucevcscvices A-1

Simmons v. Burns, et al

U.S. District Court Docket No. H-87-732 Ruling on

Motion to Dismiss (Dorsey, J.) November 10,

WOR NSN ANAS aA GEN ek Mah vi sn UnUSLe<eebeeeec cnn A-5

Simmons v. Burns, et al

U.S. District Court Docket No. H-87-832 Ruling on

Pending Motions and Order (Cabranes, J.)

eh ee eae A-7

Simmons v. Burns, et al

U.S. Court of Appeals, Second Circuit Docket No.

88-6093 Order - September 14, 1988 ............ A-26

Simmons v. Burns, et al

Supreme Court of the United States Docket No.

88-693 Cert. Denied November 28, 1988......... A-29

A-1

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A-5

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

— * Civil No. H-87-732

J. WILLIAM BURNS, et al. : (PCD)

RULING ON MOTION TO DISMISS

Plaintiff commenced this action in state court on

August 10, 1987. The action was removed to this court on

the petition of the defendant Administrator of the Federal

Aviation Administration. Defendants Julian Tashjian, Sec-

retary of the State of Connecticut, and William Burns,

Commissioner of the Connecticut Department of Trans-

portation, move to dismiss the action as to them.

Plaintiff's complaint against the state defendants

essentially seeks to quiet title to certain parcels of land

and to eject the State of Connecticut from possession of

that land. The complaint is only the latest in a iong line of

state and federal actions which plaintiff has filed relating

to the same subject. However, these issues were validly

and finally adjudicated in Simmons v. Wetherall, No.

163875 (Superior Court January 4, 1978, as modified June

2, 1978). The judgment entered in that case was affirmed

on appeal by the Connecticut Supreme Court. Simmons v.

Wetherall, 180 Conn. 587 (1980). Plaintiff is bound by that

judgment through the doctrine of res judicata. Moreover,

his complaint is impermissible either as an attempt to

appeal to this court from the state court judgment, Rooker

v. Fidelity Trust Co., 261 U.S. 114 (1923), or to collaterally

attack that judgment.

A-6

For the foregoing reasons, the motion of the state

defendants to dismiss the complaint is granted.

SO ORDERED.

Dated at Hartford, Connecticut, this 10th day of

November, 1987.

/s/ Peter C. Dorsey

Peter C. Dorsey

United States District Judge

A-7

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS :

v.

WILLIAM BURNS, et al.

CIVIL NO. H-87-732(JAC)

RULING ON PENDING MOTIONS

AND ORDER

(Filed March 15, 1988)

This represents the latest, and this court hopes, the

final chapter in the epic tale of one pru se plaintiff's

passion for engaging in vexatious litigation. Plaintiff

Augustus Simmons has struggled for over twenty-four

years to control several parcels of land situated in the

Town of East Granby, parcels which long ago became part

of Bradley Interational [sic] Airport. The instant action

seeks, inter alia, declaratory and injunctive relief and

damages against various state and federal defendants, all

of which claims rest upon plaintiff’s reassertion of his

lawful ownership of these parcels. Insofar as is relevant

to the pending motions, plaintiff also asserts various

complaints against two attorneys who represented him at

an earlier stage in this struggle. Presently pending is an

assortment of motions filed by plaintiff of varying

degrees of intelligbility [sic] and importance. Because the

determinations on the merits of Plaintiff’s Motion to Set

Aside Dismissal of State Defendants (filed Dec. 1, 1987)

(“Motion to Set Aside Dismissal”), the Federal Defen-

dant’s Motion to Dismiss (filed Nov. 30, 1987) and Defen-

dant Rogin and Hirtle’s Motion for Summary Judgment

(filed Jan. 6, 1988) are dispositive of the claims against

A-8

these defendants, these are the only motions which the

court will discuss at any length.

For the reasons set forth below, the complaints

against the state and federal defendants, are DISMISSED

WITH PREJUDICE; summary judgment is GRANTED for

defendants Rogin and Hirtle.

BACKGROUND

It is difficult to summarize the tortuous path of this

litigation. We rehearse this history here because the repet-

itiveness of it is in large part the ground for our decision.

Fully fifteen years ago, our Court of Appeals described

the beginnings of the story as follows:

The battle began [in 1964] when the state

aeronautics commission moved under Conn.

Gen. Stat. § 15-79, which then governed taking

of land for airports, to condemn the Simmons

property [adjoining Bradley International Air-

port}. Pursuant to the statute, a petition for the

determination of compensation was brought by

the state in Hartford Superior Court; a judgment

was rendered finding the taking reasonable and

appointing a referee to assess damages.

Anastasia Simmons [plaintiff's mother]

appealed to the Connecticut Supreme Court,

which reversed, finding error in the trial court’s

exclusion of evidence offered to show that prop-

erty similarly situated had not been taken. State

v. Simmons, 153 Conn. 351, 216 A.2d 632 (1966).

Since this evidence was held to be relevant on

the issue of whether the state had acted arbi-

trarily in singling out the Simmons land, the

case was remanded for a new trial.

A-9

While the first suit was pending, Mrs. Sim-

mons died, and Augustus entered the fray.

Before the second trial began, he raised as an

affirmative defense to the taking the fact that

the state authorities had not received the requi-

site statutory approval from the Town of East

a before proceeding with the condemna-

tion. The trial court agreed; the Supreme Court

affirmed. State v. Simmons, 155 Conn. 502, 234

A.2d 835 (1967). Round two for the Simmons

family.

Undaunted, the state tried again, this time

attempting to use Conn. Gen. Stat. § 48-12, the

general condemnation statute, which provided

for procedures different from section 15-79 in

cases where compensation could not be agreed

upon by the parties. The Simmons family pre-

vailed again, in Simmons v. State, 160 Conn. 492,

280 A.2d 351 (1971), when the Supreme Court

held that the state was required to use the sec-

tion 15-79 procedure.

At about the same time the abortive con-

demnation attempts were taking place, a related

dispute arose between the state and Simmons

over some land upon which runway lights had

been —— Simmons claimed that the land was

his; the state said it was the state’s. An eject-

ment action followed. In Simmons v. Parizek, 158

Conn. 304, 259 A.2d 642 (1969), the Supreme

Court held that since the complaint did not

allege that the state officials had acted uncon-

stitutionally or in a manner unauthorized by

some statute, the suit was barred by the doctrine

of sovereign immunity. Appellant took the hint,

and on October 14, 1969 resurrected the eject-

ment action, this time alleging that the taking of

the land and the erection of runway lights was

done both unconstitutionally and without statu-

tory authorization. That suit, Docket No. 162923,

A-10

Hartford Superior Court, [was] still pending [as

of January, 1973).

Shortly before the Connecticut Superior

Court decision in Simmons v. Parizek, supra, a

Special Act was passed by the Connecticut Gen-

eral Assembly, allowing Augustus Simmons to

sue the state for damages over “loss of use of

land,” arising out of the bumbling condemna-

tion proceedings. On January 5, 1970, Simmons

brought such a suit, Docket No. 163875, Hart-

ford Superior Court; [as of January, 1973,] the

action [was] still pending.

Thus, if there ever was a litigant who knew

that his claims would be fairly heard in the state

courts, Augustus Simmons was he. Neverthe-

less, perhaps for a change of setting, he insti-

tuted [a] section 1983 action on December 22,

1971 [in the United States District Court for the

District of Connecticut, Simmons v. Wetherall,

Civil No. 14806] alleging that his property was

taken without due compensation, and seeking

damages.

Simmons v. Wetherall, 472 F.2d 509, 510-11 (2d Cir.), cert.

denied, 412 U.S. 940 (1973); see also Simmons v. McKone, 158

Conn. 71 (1969) (lawsuit concerning plaintiff’s succession

to the land).

Judge Blumenfeld dismissed the section 1983 action

after finding that, at most, Simmons had alleged a tor-

tious interference with his property by state officials.

Upon review of Judge Blumenfeld’s decision, our Court

of Appeals determined that Simmons’ claim also involved

a boundary dispute; accordingly, it affirmed in part and

remanded in part so that the district court could stay the

action pending resolution of one of two state court pro-

ceedings. See Simmons v. Wetherall, 472 F.2d at 511-12.

A-11

In December, 1977, the plaintiff retained the firm of

Rogin, Nassau, Caplan, Lassman & Hirtle to represent

him in his then-pending cases. Attorneys Edward Rogin

and Robert Hirtle, two defendants in the instant action,

were partners in that firm. Negotiations ensued, and

Docket No. 163875 was consolidated with Docket No.

162923 and three other related actions that Simmons had

pending in the Connecticut Superior Court. On December

13, 1977, state referee Louis Shapiro, with the consent of

the parties, entered a final judgment by stipulation in the

consolidated actions, a judgment which promised to end

years of litigation. Pursuant to the judgment by stipula-

tion, the plaintiff, still represented by Rogin, Nassau,

Caplan, Lassman & Hirtle, agreed, inter alia, to sell the

disputed parcels of land to the state for $518,000.

The resolution of the matter was short-lived. Only

days after the settlement, Simmons voiced his refusal to

accept the terms of the judgment, terms which he had

previously stated were satisfactory. Specifically, Simmons

wanted to retain one piece of “Parcel A,” the whole of

which he had agreed to sell on December 13, 1977. Again,

the plaintiff’s attorneys negotiated. On January 4, 1978,

the state agreed to allow the plaintiff to retain the

requested portion of Parcel A. In return, the plaintiff

agreed to sell the remaining disputed land for $385,600.

He further agreed that the ‘[jludgment entered in this

matter be a full and final settlement between the parties

of any and all claims and disputes concerning said par-

cels of land and any and all other claims contained in the

above consolidated cases.” Memorandum in Support of

Motion to Dismiss (filed Oct. 7, 1987) (“State Defendant's

Memorandum”), Exhibit A at 3. Pursuant to the new

A-12

agreement and judgment, a closing was scheduled for

January 24, 1978, at which time the exchange of title was

to be consummated. See Affidavit of Robert Hirtle attached

to Motion for Summary Judgment by Defendants Edward

Rogin and Robert Hirtle (filed Jan. 6, 1988) at 2-3.

Before the closing, however, Simmons apparently

encumbered the property by leasing a portion of it, not-

withstanding that he knew title was to vest in the state

pursuant to the stipulated judgment. Simmons took this

action without the prior knowledge of his attorneys, and

eventually, he refused to cooperate with his attorneys. On

April 20, 1978, the firm sent the plaintiff a notice of its

withdrawl [sic] as his counsel. See id. at 3.

On June 1, 1978, the plaintiff, acting pro se, filed a

motion to reopen the judgment entered January 4, 1978.

In rejecting the plaintiff’s request, the state referee wrote:

The plaintiff argued that Attorney Robert L.

Hirtle, Jr., of the firm Rogin, Nassau, Caplan,

Lassman and Hirtle, failed to disclose to him

that he once served as an assistant attorney

general for the State. His claim is that this cre-

ated a conflict of interests and thereby he was

not fully and adequately represented at the

prior proceedings. It is true that Hirtle served as

an assistant attorney general between 1965 and

1971. Thereafter he joined the Rogin law firm.

Hirtle stated that before the Rogin firm entered

the settlement talks he discussed with the plain-

tiff his former affiliation. The plaintiff was

informed by his other counsel that Hirtle’s inter-

vention would be beneficial to the plaintiff. As it

turned out, Attorneys Salzman and Silverman

who represented the plaintiff in the trial before

me of case #162923, Simmons v. Parizek, et al.

tiated iia

A-13

which went to judgment, were unable to negoti-

ate a post judgment settlement with the state.

The Rogin firm entered an appearance at a later

date and the participation of attorneys Edward

Rogin and Hirtle in discussions with the attor-

ney general’s office brought results. At a date

prior to January 4, 1978, being on December 13,

1977, these five cases were settled by agreement

with plaintiff and all attorneys. At this point, the

plaintiff lauded his counsel and stated for the

record his satisfaction with the settlement in the

amount of five hundred and eighteen thousand

dollars. A judgment was entered for the amount

with full and clear consent of the plaintiff. A

few days later, the plaintiff suddenly notified

the court that he was unhappy with the settle-

ment. As a result, with consent of counsel, the

judgment was vacated ....

Plaintiff and his counsel, following further

discussion with the Attorney General’s office,

came before the undersigned at a hearing on

January 4, 1978. As a result of further discus-

sions between the parties, an agreement was

reached whereby the plaintiff was to retain the

portion of land to which he desired to retain

title. . . . Following this action judgment was

entered on January 4, 1978... .

I have carefully reviewed the plaintiff’s

claims under his motion. I find that in entering

the judgment of January 4, 1978, the plaintiff

was fully, adequately and skillfully represented

by counsel at these prior proceedings. I find no

conflict of interests as may be related to Attor-

ney Hirtle. He rendered the highest degree of

service and devotion to his client’s (Plaintiff's)

interest. As a result, the settlement reached was,

in my judgment, the optimum. The plaintiff

stated for the record, on January 4, 1978, how

pleased he was with the result.

A-14

I must conclude that I find no merit in

plaintiff’s motion. He has played fast and loose

with the court, his counsel and the state. His

conduct is devious indeed.

State Defendants’ Memorandum, Exhibit E.

Accordingly, the state secured a supplemental judg-

ment dated June 2, 1978, see id., Exhibit B, under which all

encumbrances on the property were to be removed, and

title to the disputed parcels of land automatically was .

vested in the state. The state referee further ordered the

state to deposit with the Clerk of the Superior Court

$385,600 on behalf of plaintiff. Plaintiff appealed the stip-

ulated judgment, and the Supreme Court upheld it and

the findings of the trial referee. See Simmons v. Wetherall,

180 Conn. 587 (1980) (per curiam). As of June 29, 1987,

pursuant to this judgment, there was on deposit in

United States treasury bills the sum of $497,314.24. This

sum represents principal and interest and apparently is

available to plaintiff upon appropriate motion to the

Clerk of the Superior Court. See State Defendants’ Mem-

orandum, Exhibits C and D.

Ignoring principles of res judicata and collateral

estoppel, plaintiff then commenced a new series of state

and federal court actions in which he raised claims which

were, without exception, reiterations of the claims ulti-

mately decided by the state Supreme Court in Simmons v.

Wetherall.

For example, in 1981, the plaintiff initiated an action

in this court in which he alleged that the taking of his

land had violated his constitutional rights. See Simmons v.

United States Government, Civil No. H-81-778 (JAC). In

ae ntleaeeeeeammiaiiaiieiaiiiiiill

A-15

1983, he initiated another action which sounded in tres-

pass and ejectment. See Simmons v. United States of Amer-

ica, Civil No. H-83-225 (TEC). These two cases were

consolidated in this court and dismissed as barred by res

judicata in an order also noting that, by bringing these

cases in federal court, plaintiff was impermissibly mount-

ing collateral attacks on a valid state court judgment. See

Order (dated Aug. 16, 1983) (Cabranes, J.). Our court of

appeals affirmed that decision on appeal. See Simmons v.

Powers, Simmons v. United States, Docket No. 83-6257 (2d

Cir. Dec. 20, 1983) (unpublished order); see State Defen-

dants’ Memorandum, Exhibits F and G. Thereafter, the

United States Supreme Court denied plaintiff’s petition

for a writ of certioriari [sic]. See State Defendants’ Mem-

orandum, Exhibit H.

Notwithstanding the rejection of his claims by every

state and federal trial and apellate [sic] court having any

arguable basis for assuming jurisdiction, this zealous liti-

gant initiated yet another federal lawsuit in January, 1985.

The plaintiff’s strategy to avoid the res judicata effect of

the 1978 state supplemental judgment was to allege new

violations of federal statutes and to bring in an assort-

ment of new defendants to join the old. Again, the court

dismissed the complaint on res judicata grounds. See

Simmons v. Dole, Civil No. H-85-45 (D.Conn. Apr. 8, 1985)

(Blumenfeld, J.). Again, plaintiff appealed and the Court

of Appeals affirmed, stating:

We agree with the April 8, 1985, order of the

district court dismissing appellant’s claims on

the ground of res judicata. We also consider this

a frivolous appeal. Appellant has litigated the

Same matters numerous times before in both

state and federal courts over a period of many

A-16

years. Because appellant is a pro se litigant, we

are not imposing sanctions at this time. How-

ever, appellant is hereby placed on notice that

he risks imposition of sanctions in the future

should be seek once again to relitigate these

same matters.

Simmons v. United States, Docket No. 85-6087 (2d Cir. Nov.

22, 1985) (unpublished order).

Undeterred, plaintiff mounted another attack in Con-

necticut Superior Court just a few months later. In the

new suit, filed in January 1986, he attempted to recover

damages from the state. The state’s motion to dismiss was

granted. The Connecticut Appellate Court affirmed the

dismissal, see Simmons v. Burns, 9 Conn.App. 802 (1986)

(per curiam), and the Connecticut Supreme Court denied

certification to appeal, see Simmons v. Burns, 201 Conn.

815 (1986).

II

THE INSTANT ACTION

Plaintiff commenced the instant action in Connecticut

Superior Court on August 10, 1987. The action was

removed on the petition of one of the defendants, the

Administrator of the Federal Aviation Administration.

The only even arguable new element in this suit is a claim

that plaintiff has suffered from legal malpractice at the

hands of his former attorneys, Edward Rogin and Robert

Hirtle. Cf, Opinion of State Referee, quoted above in this

Ruling at 5-6.

Prior to transferring the case to the docket of this

court, Judge Dorsey granted a motion to dismiss the

. |

A-17

action as to state defendants Julia Tashjian, Secretary of

the State of Connecticut, and J. William Burns, the Com-

missioner of the Connecticut Department of Transporta-

tion on res judicata grounds. See Simmons v. Burns, Civil

No. H-87-732, Ruling on Motion to Dismiss (D.Conn.

Nov. 19, 1987). Plaintiff has filed what can be construed

as an objection to the granting of the state defendants’

motion to dismiss, which is one of the pending motions to

which this ruling is addressed.

Thereafter, defendants Rogin and Hirtle filed a

motion for summary judgment and the federal defendant

filed a motion to dismiss. These pending motions present

the court with the opportunity to write the final chapter

of this lengthy and tiresome story.

A. The Motions to Dismiss

The doctrine of res judicata bars relitigation of the

same cause of action between the same parties or their

successor in interest. See Mohegan Tribe v. Connecticut, 528

F.Supp. 1359, 1370 n. 2 (D.Conn. 1982). It is an absolute

bar not only as to every matter which was offered to

sustain a claim, but also as to any other matter which

might have been offered for that purpose. See State v.

Aillon, 189 Conn. 416, 423, cert. denied, 464 U.S. 837 (1983).

“[A] federal court must give to a state court judgment the

same preclusive effect as would be given that judgment

under the law of the State in which the judgment [sic]

was rendered.” Migra v. Warren City School District Board

of Education, 465 U.S. 75, 81 (1984). Moreover, a litigant

“may not engage in extensive proceedings throughout the

state court system, and then, after every point has been

A-18

decided against him by the state courts and the Supreme

Court has denied certiorari, make a fresh start in federal

court.” Friarton Estates Corp. v. City of New York, 681 F.2d

150, 159 (2d Cir. 1982). Thus, issues which were actually

litigated, or which could have been litigated, in a state

court proceeding are entitled in a federal suit to the same

preclusive effect accorded them by the state. Migra, 465

U.S. at 83; Allen v. McCurry, 449 U.S. 90, 94 (1980); accord

Kaufman v. Somers Board of Education, 368 F.Supp. 28, 33

(D.Conn. 1973).

In Connecticut, a valid judgment entered by agree-

ment or consent operates to end the controversy to the

same extent as would a valid judgment rendered after

adjudication on the merits. See Connecticut Pharmaceutical

Association v. Milano, 191 Conn. 555, 558 (1983); Gagne v.

Norton, 189 Conn. 29, 34 (1982). The Connecticut Supreme

Court in Simmons v. Wetherall, 180 Conn. 587 (1980),

upheld the actions of the state referee whereby title of the

disputed land vested in the State of Connecticut. In the

instant action, plaintiff asserts claims which rest upon his

purported legal ownership of the same land.

Accordingly, Plaintiff’s Motion to Set Aside Dismissal

of State Defendants (filed Dec. 1, 1987) is DENIED, and

the case against them is dismissed with prejudice.

Because the claims against the federal defendant rest

upon the claim that the State of Connecticut is in wrong-

ful possession of plaintiff’s land, they are likewise barred.

The Federal Defendant’s Motion to Dismiss (filed Nov.

30, 1987) is therefore GRANTED, and the case against

him is dismissed with prejudice.

TT

A-19

B. Defendants Rogin’s and Hirtle’s Motion for Summary

Judgment

Liberally construed, the complaint against Attorneys

Rogin and Hirtle can be viewed as alleging fraud, breach

of contract or legal malpractice. The adequacy and loyalty

of their representation of plaintiff was explicitly

addressed and decided against plaintiff by the state ref-

eree; the referee’s denial of plaintiff’s motion to reopen

the judgment based claims of inadequate representation

were upheld by the Connecticut Supreme Court in Sim-

mons v. Wetherall, 180 Conn. at 589. Because the record

does not demonstrate clearly that Rogin and Hirtle have

been parties to litigation on the merits of any of these

claims, there is some doubt whether they would be enti-

tled in Connecticut courts to assert the prior state court

judgment as a defense. See State v. Ellis, 197 Conn. 436,

462-69 (1985); Doe v. Maher, 40 Conn.Supp. 394, 405, 515

A.2d 134 (New Haven, 1986). It could be argued, consis-

tently with the rationales of these decisions, that defen-

dants should be so entitled because this plaintiff certainly

has had a full and fair opportunity to litigate the claims.

See DiMauro v. Pavia, 492 F.Supp. 1051, 1059 n. 7

(D.Conn.), aff'd mem., 614 F.2d 1286 (2d Cir. 1979).

In any event, the record reveals another clear ground

for granting summary judgment for Rogin and Hirtle. It

is undisputed that these two attorneys ceased represent-

ing plaintiff almost nine years ago. Moreover, since plain-

tiff explicitly questioned the adequacy of their

representation before the state referee in 1978, he cannot

credibly argue that, until recently, he was unaware of the

harm which he is alleged to have suffered at their hands.

A-20

Any suit based upon their representation is certainly

barred by whatever statute of limitations might arguably

be applicable. See Conn. Gen. Stat. § 52-576 (six-year

limitation for actions based on simple or impled [sic]

contract) and § 52-577 (three-year limitation for actions in

tort, held applicable to legal malpractice in Shuster v.

Buckley, 5 Conn.App. 473, 477 (1985)).

C. Prospective Relief

Finally, the court would be remiss if it did not put an

end to plaintiff’s vendetta and relieve its victims from the

burden of vexatious relitigation of these issues. See In re

Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984), cert.

denied, 106 S.Ct. 807 (1986); see also Procup v. Strickland,

792 F.2d 1069, 1073 (11th Cir. 1986). The District Court has

the authority to issue “all writs necessary or appropriate

in and of their respective jurisdictions and agreeable to

the usages and principles of law.” 28 U.S.C. § 1651(a). It

may be appropriate in some circumstances to enter an

injunction to prevent the continuation of harassments

which come from frivolous and repetitious lawsuits. See,

e.g., Matter of Hartford Textile Corp., 681 F.2d 895, 897 (2d

Cir. 1982), cert. denied, 459 U.S. 1206 (1983). Courts are not

to be used as a vehicle for harassment by a litigant who

asserts the same baseless claim repeatedly in slightly

altered guises. See Kane v. City of New York, 468 F.Supp.

586, 590 (S.D.N.Y.), aff'd mem., 614 F.2d 1288 (2d Cir.

1979). Although an order enjoining a particular plaintiff

from commencing future actions is an unusual step, the

courts have not hesitated to enter such orders where a

litigant continues to abuse the legal process, and defen-

dants, by filing meritless claims. See, e.g., In re Martin-

Te

A-21

Trigona, 763 F.2d 140 (2d Cir. 1985), cert. denied, 106 S.Ct.

807 (1986).

Apart from such extraordinary and pathological

examples as Anthony R. Martin-Trigona, it would be

difficult to find a litigant more pertinacious that [sic]

Augustus J. Simmons. This plaintiff has brought approx-

imately one dozen suits arising out of the state’s initially

inept attempt to condemn his land over twenty years ago.

At this point in his “legal career,” he could not credibly

argue that he believes, in good faith, that his claims have

merit. See Fed. R. Civ. P. 11. He has harassed a variety of

defendants and has squandered the resources of both

state and federal courts, all due to his persistent refusal to

accept as final the 1978 supplemental judgment of the

Hartford Superior Court, and the 1980 decision of the

Connecticut Supreme Court upholding that judgment.

Our Court of Appeals has warned him unequivocally that

he would risk the imposition of sanctions if he persisted

in filing the same claim. It is difficult to believe, however,

that any sanction, short of an injunction, would either be

effective or appropriate to protect potential defendants

and preserve judicial resources for other litigants who

await their own day in court.

Accordingly, the court hereby ENJOINS plaintiff,

Augustus J. Simmons, from filing in the United States

District Court for the District of Connecticut or any other

federal court any lawsuit in which he asserts the same

claims as were litigated, or as might have been litigated,

in the Connecticut Superior Court cases referred to as

Simmons v. Weatherall, Docket No. 163875 (Superior Court

at Hartford, Jan. 4, 1978, as modified June 2, 1978), aff'd,

A-22

180 Conn. 587 (1980), and all the cases consolidated there-

with.

1. This injunction includes any filing in which the

harm is alleged to have arisen from or relate to the

plaintiff’s ownership, at one time, of the parcels of land

in the Town of East Granby as described in the original

and supplemental judgments in Simmons v. Wetherall,

Docket No. 163875, supra, and all cases consolidated

therewith.

2. Plaintiff is also enjoined from filing any state or

federal claims in any federal court against any of the

defendants named in the complaint in this lawsuit of

such lawsuit related to his alleged ownership of the par-

cels of land described in the original and supplemental

judgments in Simmons v. Wetherall, Docket No. 163875,

supra, and all cases consolidated therewith.

3. This injunction applies only to lawsuits of the

sort described above filed in the federal courts, including

the United States District Court for the District of Con-

necticut. Nothing in this order shall be construed as

restricting plaintiff’s ability to file a suit in any state

court. Nor shall it be construed as restricting plaintiff's

ability to file suit in any federal court, so long as the

lawsuit does not relate to plaintiff’s alleged ownership of

the parcels of land described in the original and supple-

mental judgments in Simmons v. Wetherall, Docket No.

163875, supra, and all the cases consolidated therewith.

4. Nothing in this order shall be construed to deny

plaintiff access to the United States Court of Appeals for

the Second Circuit, or to the Supreme Court of the United

States, in any matter.

A-23

5. Nothing in this order shall be construed to pro-

hibit Augustus J. Simmons from filing complaints under

28 U.S.C. § 372(c), provided, however, that nothing in this

order, and nothing in this subsection in particular, shall

be construed as intimating any view on the constitu-

tionality of 28 U.S.C. § 372. See, e.g., Rule § 0.24, Com-

plaints with Respect to Conduct of Judges, Rules of the

United States Court of Appeals for the Second Circuit

(Nov. 1983) (identical disclaimer by the Judicial Council

of the United States Court of Appeals for the Second

Circuit).

6. All future complaints submitted by plaintiff to

this court shall first be reviewed for compliance with this

order. Any complaint that does not comply with this

order shall not be docketed and will be returned to plain-

tiff.

In entering this injunction, the court reserves the

right to order such additional relief as may become

appropriate or necessary to accomplish its objective of

protecting individuals and the system of justice from

further abuse by this litigant.

Ill

CONCLUSION

For the reasons stated above:

(1) Plaintiff’s Motion to Set Aside Dis-

missal of State Defendants is DENIED, and the

case against the state defendants in DISMISSED

with prejudice.

(2) The Federal Defendant’s Motion to Dis-

miss is GRANTED, and the case against it is

DISMISSED with prejudice.

A-24

(3) The Motion for Summary Judgment of

Defendants Rogin and Hirtle is GRANTED.

There being no just cause for delay, judgment

shall enter forthwith for defendants Rogin and

Hirtle. See Fed. R. Civ. P. 54(b).

(4) The other pending motions, identified

in the note at the margin and having been

resolved by decisions on the above motions, are

denied as moot.!

(5) Plaintiff is enjoined, as specified above,

from filing any lawsuit in federal court in which

he asserts the same claims as were litigated, or

might have been litigated, in the Connecticut

Superior Court cases referred to as Simmons v. -

Wetherall, Docket No. 163875 (Superior Court at

Hartford, Jan. 4, 1978, as modified June 2, 1978),

aff'd, 180 Conn. 587 (1980), and all the cases

consolidated therewith.

It is so ordered.

Dated at New Haven, Connecticut, this 15th day of

March, 1988.

Jose A. Cabranes

United States District Judge

A-25

NOTE

' The following motions filed by plaintiff are hereby

denied as moot: Motion for Payment of Rent (filed Sept. 29,

1987); Motion for Order of Referral and Enforcement of 49

U.S.C. § 2216 (filed Nov. 12, 1987); Petition for Hearing on

Determination of Due Process (Civil Process) Under 14th

Amendment Upon all Necessary Parties (filed Nov. 19, 1987);

Motion for Payment of Real Property Taxes by Federal Aviation

Administration under 49 CFR § 25.106(c) (filed Nov. 25, 1987);

Motion to Set Aside State Court Judgment Rendered Without

the “Necessary Parties” (filed Dec. 30, 1987); Motion to Set

Aside State Court Judgment Rendered Without Just Compensa-

tion (filed Dec. 30, 1987); Motion to Set Aside State Court

Judgment Rendered Without Jurisdiction and in Violation of

Uniform Relocation Assistance and Real Property Acquisition

Policies Act of 1970 (filed Dec. 30, 1987); Motion to Set Aside

State Court Judgment Rendered Without Due Process (filed

Dec. 30, 1987).

A-26

CONN

H-87-732

CRABRANES

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

* * *

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the 14th day of

September one thousand nine hundred and eighty-eight.

Present:

HONORABLE J. EDWARD LUMBARD,

HONORABLE J. DANIEL MAHONEY,

Circuit Judges

HONORABLE CON. G. CHOLAKIS,

District Judge.*

AUGUSTUS J. SIMMONS, ORDER

Plaintiff-Appellant, 58-609:

ive (Filed

c SEP 14 1988)

J. WILLIAM BURNS, et al., ISSUED AS

Defendants-Appellees. MANDATE:

October 5,

1988

* Hon. Con. G. Cholakis, District Judge, United States District

Court for the Northern District of New York, sitting by desig-

nation.

_— yor

A-27

Appeal from the United States District Court for the

District of Connecticut.

This cause came to be heard on the transcript of

record from the United States District Court for the Dis-

trict of Connecticut, and was argued by appellant pro se

and by counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged and decreed that the order of said

district court be and it hereby is AFFIRMED, and appel-

lant is assessed double court costs.

1. We affirm for the reasons stated in the ruling of

the district court. We also consider this a frivolous

appeal. This is appellant’s third appearance before this

court in the past five years, and on each occasion res

judicata barred or bars his reassertion of the same claims

which were either fully litigated or should have been

litigated in prior state and federal proceedings. In his last

appearance before this court, Simmons v. United States of

America, et al., Docket No. 85-6087 (2d Cir. Nov. 22, 1985)

(unpublished order), appellant Simmons was placed on

notice that he risked imposition of sanctions should he

seek to appeal the same matters again.

2. It is accordingly appropriate to assess double

court costs against appellant pursuant to Fed. R. App. P.

38.

3. We specifically call to appellant’s attention that

we affirm the order of the district court in all respects,

including its injunction against further federal litigation

A-28

concerning these claims, and that any violation of that

injunction may be punished as a contempt of court.

/s/ J] Edward Lumbard

J. Edward Lumbard,

/s/ J} Daniel Mahoney

J. Daniel Mahoney,

Circuit Judges

/s/ Con. G Cholakis

Con. G. Cholakis,

District Judge

N.B. This summary order will not

be published in the Federal Re-

porter and should not be cited or

otherwise relied upon in unrelated

cases before this or any other

court.

A-29

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

November 28, 1988

Mr. Carl J. Schuman

Office of Atty. General

30 Trinity Street

Hartford, CT 06106

Re: Augustus J. Simmons,

v. J. William Burns, Commissioner, Connect-

icut Department of Transportation, et al.

No. 88-693

Dear Mr. Schuman:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Very truly yours,

Joseph F. Spaniol, Jr., Clerk

/s/ Joseph F. Spaniol, Jr.