Dec. 23, 2021 – A man with a history of filing frivolous lawsuits gave up his right to sue in forma pauperis by violating the terms of a litigation bar order, the U.S. Court of Appeals for the Seventh Circuit has ruled.
Reed v. PF of Milwaukee Midtown, LLC, 16 F.4th 1229 (Oct. 28, 2021), a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that Melvin D. Reed would have to prepay all fees before filing any new lawsuits.
$5,000 in Sanctions
In 2012, the U.S. District Court for the Eastern District of Wisconsin issued an order barring Reed from filing any lawsuits. The judge issued the order after determining that Reed had filed a spate of frivolous employment discrimination lawsuits.
Each year, Reed would apply for scores of jobs. If he was hired, Reed would work for a short time before behaving in way that caused the employer to fire him.
Upon being fired, Reed would claim the employer had discriminated against him. If Reed was not hired, he would claim the would-be employer had discriminated against him.
After making a discrimination claim, Reed would demand a settlement calculated on the amount it would cost the defendant to defend a lawsuit rather than the likelihood he would prevail.
In issuing the litigation-bar order, the judge required Reed to pay $5,000 in sanctions before he could file another lawsuit. Under the terms of the order, Reed could apply to lift the order within two years.
Before those two years expired, Reed filed an employment discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging discrimination against a Planet Fitness in Milwaukee. Reed had applied for a job with the company and been turned down.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
The filing of the complaint with the EEOC triggered the start of a 90-day period (ending on Oct. 7, 2019) for filing a timely action. On the 46th day of that period, Reed asked the district court to vacate the bar order.
Reed had a single basis for his request to vacate the order – that Judge Rudolph Randa, who issued the order, was biased against him.
Reed had made the same claim against Judge Randa in 2013 – a claim the Seventh Circuit ruled was frivolous. Judge Adelman, to whom Reed’s request had been assigned after Judge Randa died, denied the request.
Reed filed another motion to vacate the litigation-bar order. Judge Adelman issued an order asking Reed to file an affidavit regarding the state of his finances from the date the bar order was entered in 2012.
On Sept. 16, the clerk mailed the order to Reed. But the clerk used a former address of Reed’s, so he didn’t receive it until Oct. 16, 2019 – nine days after the EEOC deadline had passed.
On Oct. 18, 2019, Reed filed an affidavit of indigence. The district judge accepted Reed’s affidavit and vacated the filing bar.
Reed then filed the lawsuit against Planet Fitness on Nov. 1. The judge dismissed the lawsuit as untimely, rejecting Reed’s request that the court equitably toll the 90-day filing deadline.
In an opinion written by Judge Frank Easterbrook, the Seventh Circuit held that Reed’s complaint could not survive dismissal even though the clerk sent the order to the wrong address.
On the date that the clerk mailed the notice, “the 90 days was almost gone—and Reed had frittered away most of the period with misbegotten acts (ignoring the bar order) and arguments (judicial bias), making it impossible for him to demonstrate diligence,” Easterbrook wrote.
“It is a litigant’s responsibility to act diligently
throughout a period of limitations, in order to avoid the risk that a clerical error will eat up the last few days or weeks.”
Easterbrook also addressed an argument, advanced by an amicus curiae, that the litigation-bar order issued against Reed in 2012 was invalid because Judge Randa failed to inform Reed that indigence would lead to the order being vacated.
That argument should have been raised on appeal in 2013, the court held, but Easterbrook addressed it nonetheless.
“A court may halt the abuse of the judicial process, which imposes substantial costs on people and businesses that have done no wrong,” Easterbrook wrote. “Everyone has a duty to avoid frivolous suits and arguments, and a person who cannot or will not abide by that rule must be stopped.
“If a need to pay money won’t work as a deterrent (and it won’t for indigent litigants), then some form of bar order becomes essential.”
‘Thumbed His Nose at the Judicial System'
Under Seventh Circuit precedent, to lift a litigation-bar order a litigant must show that he or she has paid what he or she could, even if not the whole amount, and demonstrate that he or she will desist from frivolous suits.
Reed had done neither, Easterbrook wrote.
“Instead of making a good-faith effort to satisfy as much of his obligation as he could, he thumbed his nose at the judicial system. And then, far from demonstrating a resolve to avoid frivolous litigation, Reed made a frivolous attack on the … order itself.”
Easterbrook concluded the opinion by warning Reed that additional frivolous filings would force the court to issue a new litigation-bar order. He also wrote that the court was issuing an order that Reed prepay all fees for filing any new suit.
“In other words, by a sustained course of conduct, Reed has forfeited the privilege of litigating in forma pauperis under
28 U.S.C. section 1915.”