Jerry Montgomery v. Cecil Davis

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1524
J ERRY M ONTGOMERY ,
Petitioner-Appellant,
v.
C ECIL D AVIS ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:02cv0430—Allen Sharp, Judge.
____________
No. 03-2937
L ARRIANTE J. S UMBRY ,
Petitioner-Appellant,
v.
C ECIL D AVIS ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:03cv189—Allen Sharp, Judge.
____________
S UBMITTED O CTOBER 7, 2003—D ECIDED M ARCH 30, 2004
____________

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2 Nos. 03-1524 & 03-2937
Before P OSNER , E ASTERBROOK , and R OVNER , Circuit
Judges.
P ER C URIAM . Jerry Montgomery and Larriante Sumbry
have long histories of filing frivolous lawsuits in this circuit.
For this reason we have sanctioned both: in April 2000 we
fined Montgomery $500 and blocked future filings in
accordance with Alexander v. United States, 121 F.3d 312
(7th Cir. 1997), and Sumbry has both struck out under the
Prison Litigation Reform Act, 28 U.S.C. § 1915(g), and been
barred from filing civil suits until he pays all outstanding
fees and sanctions, Support Sys. Int’l, Inc. v. Mack, 45 F.3d
185 (7th Cir. 1995) (per curiam). See Montgomery v. Ander-
son, No. 00-1843 (7th Cir. Apr. 13, 2000); In re Sumbry, No.
02-2565 (7th Cir. Aug. 1, 2002). At issue now is whether
additional sanctions are necessary.
These appeals represent a growing trend in abusive fil-
ings: state prisoners who are restricted filers using habeas
corpus petitions to challenge noncustodial state actions. The
issue is not the difficulty of the cases. As shown by Montgom-
ery’s and Sumbry’s petitions, they are frivolous, often
profoundly so. Rather, the problem is that these prisoners
waste time, copious amounts of it, repeatedly filing peti-
tions that they know, or should know because they have
been told, are futile. On the appellate level, these prisoners
automatically receive briefing and review by a three-judge
panel because the screening provision of § 2253(c) does not
apply. Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000)
(prisoners appealing the denial of § 2254 petitions challeng-
ing decisions other than those made during state criminal
proceedings do not need a certificate of appealability to
appeal). And although Rule 4 of the rules governing collat-
eral attacks provides district court judges the means to
summarily dispose of these cases, judges still must squan-
der precious time wading through the morass of often
intentionally obscure pleadings, analyzing the claims, and
committing to paper the reason for denying the purported
petition.

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Nos. 03-1524 & 03-2937 3
The sanctions currently available to the court do not
address the problem of abusive habeas corpus petitions
because none restricts § 2254 actions. The PLRA applies
only to actions filed under 42 U.S.C. § 1983, Martin v.
United States, 96 F.3d 853 (7th Cir. 1996); Mack explicitly
exempts criminal cases and petitions challenging the fact
or duration of confinement from the filing bar, Mack, 45
F.3d at 186; and Alexander announces a modified Mack bar
targeting abusive § 2244(b)(3) applications, Alexander, 121
F.3d at 315. Again, Sumbry and Montgomery demonstrate
the inadequacy of our current sanctions regime to contain
prisoners determined to abuse judicial process: in the four
years since we sanctioned Montgomery, he has filed seven
habeas corpus petitions and eight different appeals; even
more striking, in the one and a half years since we sanc-
tioned Sumbry, he has filed nine new petitions (two since
we ordered him to show cause in this case), one civil rights
action the district court immediately dismissed, numerous
unauthorized successive petitions masquerading as Rule
60(b) motions in previously denied petitions, and 13 actions
in this court.
This must stop. “Every paper filed . . . no matter how
repetitious or frivolous, requires some portion of the insti-
tution’s limited resources. A part of the Court’s respon-
sibility is to see that these resources are allocated in a way
that promotes the interests of justice.” In re McDonald, 489
U.S. 180, 184 (1989). Although McDonald refers to
the Supreme Court’s responsibility to protect its own re-
sources, the principle applies equally to us. See Chambers
v. NASCO, Inc., 501 U.S. 32, 44-45 (1991) (A federal court’s
inherent powers include “the ability to fashion an appropri-
ate sanction for conduct which abuses the judicial pro-
cess.”).
Accordingly, Montgomery and Sumbry are fined $500
each and, until they pay all outstanding fees and sanctions,
clerks of all federal courts within this circuit must return

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4 Nos. 03-1524 & 03-2937
unfiled any papers submitted by Montgomery or Sumbry in
any habeas corpus action unless the petition attacks a state
court imposed criminal judgment. See Whitaker v. Super.
Ct. of Cal., San Francisco County, 514 U.S. 208 (1995)
(instructing clerk not to accept Whitaker’s certiorari
petitions in noncriminal matters unless he pays the docket-
ing fee); In re Anderson, 511 U.S. 364 (1994) (instructing
clerk not to accept Anderson’s petitions for extraordinary
writs unless he pays docketing fee). Because both Montgom-
ery and Sumbry have received federal habeas corpus review
of their current convictions, they are effectively barred from
filing any civil action in the district courts until they settle
their debts to the federal judicial system.
We add for the sake of clarity that the prior orders sanc-
tioning Montgomery and Sumbry remain in effect as writ-
ten; this order does not abrogate any previously imposed
sanctions. Additionally, the filing bar imposed by this order
applies to any post-judgment motions Montgomery or
Sumbry might try to file in any existing case. Finally,
because this court disapproves of perpetual orders, Mack,
45 F.3d at 186, Montgomery and Sumbry may seek modi-
fication or rescission of this order, but not before two years
have passed.

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Nos. 03-1524 & 03-2937 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-30-04

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