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Frohwerk v. Calhoun

United States District Court, N.D. Indiana, South Bend Division

February 4, 2014

DAVID FROHWERK, Plaintiff,
v.
STEVEN H. CALHOUN, Defendant.

OPINION AND ORDER

WILLIAM C. LEE, District Judge.

David Frohwerk, a pro se prisoner, is an abusive litigator. He is barred from proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g) because he has accumulated ten[1] strikes. The court has previously observed - and cautioned him - that, "[i]t appears that because of that restriction, he is now attempting to raise... claims in creatively captioned filings [and that] if Frohwerk persists in such efforts, he may be fined, sanctioned or restricted." Frohwerk v. United States, 2:12-CV-066 (N.D. Ind. filed February 13, 2012) (DE 5). At the same time he was warned that "Prisoners cannot avoid the... rules by inventive captioning." Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004). Among the antics which led to those admonitions were suing the same defendants for the same claims in multiple lawsuits;[2] attempting to place liens on the Westville Correctional Facility;[3] and suing the United States to obtain asylum in Switzerland.[4]

Nevertheless, Frohwerk has now filed a new case with the caption, "Motion for Concurrent Federal Jurisdiction" in which he seeks to have this court hear an appeal that he is simultaneously taking from the LaPorte Circuit Court to the Indiana Supreme Court. DE 1. However the Rooker-Feldman doctrine precludes this court from directly reviewing a state court judgment. Beth-El All Nations Church v. City of Chicago, 486 F.3d 286, 292 (7th Cir. 2007). "[O]nly the Supreme Court of the United States may set aside a state court's decision in civil litigation." Simmons v. Gillespie, 712 F.3d 1041, 1043 (7th Cir. 2013). This case is yet one more meritless lawsuit filed by Frohwerk. He was warned that he cannot evade the rules by creative captioning. He was warned that he could be restricted if he continued to do so. He was warned that "[a]n effort to bamboozle the court... after a federal judge has held that § 1915(g) applies to a particular litigant will lead to... an order forbidding further litigation." Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999).

Reaching this decision to restrict Frohwerk has involved individually reviewing all 30 of the cases that he has litigated before this court. In addition to the vexatious litigation history recounted above, that review has uncovered that this court could have - but refrained from - restricting Frohwerk on three prior occasions. On July 6, 2011, in Frohwerk v. Carpenter, 2:11-cv-222 (N.D. Ind. filed June 24, 2006), this court found that Frohwerk was precluded from proceeding in forma pauperis by 28 U.S.C. § 1915(g).[5] Nevertheless, Frohwerk filed three more frivolous and malicious cases without being restricted.[6] The third time, the court set forth the warnings discussed above, but Frohwerk did not heed them. Therefore he will be restricted pursuant to Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999).

As explained in Sloan, this case will be dismissed, the filing fee assessed, and Frohwerk restricted until he has paid in full all outstanding filing fees and sanctions. A review of this court's ledgers indicates that (including this case) Frohwerk owes $9, 482.46 in outstanding filing fees. The restriction imposed by this order does "not impede him from making any filings necessary to protect him from imprisonment or other confinement, but... [it does] not let him file any paper in any other suit... until he pays the money he owes." Support Sys. Int'l v. Mack, 45 F.3d 185, 186 (7th Cir. 1995). Pursuant to the express language of Mack, this restriction does not apply to Frohwerk's pending habeas corpus proceeding: Frohwerk v. Superintendent, 3:13-cv-1206 (N.D. Ind. filed November 20, 2013). In addition, the court will not apply it to his pending claim for injunctive relief on which he has been permitted to proceed on a claim that he is in imminent danger of serious physical injury: Frohwerk v. Levenhagen, 3:13-cv-1398 (N.D. Ind. filed December 23, 2013). Furthermore, it does not restrict him from filing a notice of appeal in this case.

For the foregoing reasons, the court:

(1) DISMISSES this case as frivolous and malicious pursuant to 28 U.S.C. § 1915A;

(2) ORDERS the plaintiff David Frohwerk, IDOC # 985446 to pay (and the facility having custody of him to automatically remit) to the clerk of this court 20 percent of the money he receives for each calendar month during which he receives $10.00 or more, until the $400.00 filing fee is paid in full;

(3) DIRECTS the clerk of court to return, unfiled, any papers filed in any civil case by or on behalf of David Frohwerk (unless filed in a habeas corpus or federal criminal proceeding, or filed in Frohwerk v. Superintendent, 3:13-cv-1206 or Frohwerk v. Levenhagen, 3:13-cv-1398, or a notice of appeal and related documents in this case) until he has paid in full all outstanding fees and sanctions in all civil actions in any federal court;

(4) DIRECTS the clerk to note on the docket of this case any attempted filings in violation of this order; and

(5) DIRECTS the clerk of court to ensure that a copy of this order is mailed to each facility where the plaintiff is housed until the filing fee has been paid in full.

SO ORDERED.


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