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Hamrick v. Bush

May 24, 2007

DON HAMRICK PLAINTIFF
v.
GEORGE W. BUSH, PRESIDENT; MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; MICHAEL PRENDERGAST, ASSOCIATE DIRECTOR FOR SECURITY OPERATIONS, U.S. DEPARTMENT OF TRANSPORTATION; REGGIE B. WALTON, JUDGE, U.S. DISTRICT COURT FOR D.C.; ELLEN SEGAL HUVELLE, JUDGE, U.S. DISTRICT COURT FOR D.C.; DENNIS BARGHAAN, U.S. ATTORNEY'S OFFICE; HEATHER GRAHAM-OLIVER, U.S. ATTORNEY'S OFFICE; UNITED NATIONS; AND THAD ALLEN, ADMIRAL, COMMANDANT, U.S. COAST GUARD DEFENDANTS



ORDER

Pending before the Court are the federal defendants' January 19th motion to dismiss and January 31st supplemental motion to dismiss the pro se plaintiff's Racketeer Influence and Corrupt Organizations Act (RICO) complaint as well as alleged constitutional and statutory claims over his asserted right, as a citizen and merchant seaman, to travel intrastate and interstate while openly armed with a handgun under the Second Amendment.*fn1 These motions are supported by exhibits. Plaintiff responded on February 7th with supplements filed on February 12th and 15th and March 20th, also supported by exhibits.

In addition, plaintiff has filed several motions concerning discovery, proceeding under the "collaborative system of justice," for sanctions against the United States Attorney's office due to their correspondence, for writs of replevin and arrest, and for denial of the motion to dismiss.*fn2 On April 12th, the federal defendants responded to the motion for sanctions.

On March 20th, plaintiff filed a notice of appeal to the Court's March 1st order which denied motions to expedite case and permanent injunction, for mandatory recusal of Judge Howard*fn3 for cause, for temporary injunction, for appointment of attorney, for case management, and for return of filing fee. By order filed on April 11th, the Eighth Circuit Court of Appeals directed plaintiff to show cause why his appeal should not be dismissed due to his failure to pay the docketing fees. Plaintiff filed a response on April 23rd in opposition. The appellate court issued an order on April 30th directing plaintiff to pay the $455.00 appellate and docketing fees in the district court within fifteen days or the appeal would be dismissed for failure to prosecute. Plaintiff has not paid the required fees.

"A district judge's determination 'not to disqualify himself is reviewable by appeal only from a final judgment in the cause in which the motion for disqualification was filed.'" Liddell v. Board of Ed. of City of St. Louis, 677 F.2d 626, 643 (8th Cir. 1982)(citations omitted). "[A]n appeal from an interlocutory order granting or denying preliminary injunctive relief does not strip a federal District Court of jurisdiction to proceed with the action on the merits or continue with other phases of the case." AmJur 2d Injunction § 327. The rulings on the motions for appointment of attorney, for case management, and for return of filing fee are also interlocutory orders.

Thus, the Court finds that it has jurisdiction to rule on the pending motions before it. The federal defendants state that plaintiff applied to the U.S. Coast Guard in January of 2002 to have his identification card endorsed "National Open Carry Handgun" which he contends would allow him to carry a handgun any place in the United States. The Coast Guard denied plaintiff's request on April 19, 2002, and sent him a letter on May 24, 2002, advising that the April 19, 2002 decision was the agency's final decision and no further action on his request would be taken. That decision was reiterated in letters sent to plaintiff on April 29, 2003 and January 7, 2004.

Plaintiff filed two pro se civil actions on July 18, 2002, in the U.S. District Court for the District of Columbia which were assigned to District Judge Ellen S. Huvelle. The defendants in Case No. 1:02-cv-01434-ESH were Captain J.P. Brusseau, the U.S. Coast Guard officer who denied plaintiff's request for a "National Open Carry Handgun" endorsement on his Merchant Mariner's identification card; Admiral Thomas H. Collins, Commandant of the U.S. Coast Guard and Paul J. Pluta, Rear Admiral, U.S. Coast Guard. Those defendants were represented by Heather D. Graham-Oliver, Assistant U.S. Attorney. The federal defendants say that Judge Huvelle granted those defendants' motion to dismiss which Hamrick appealed to the Court of Appeals for the District of Columbia, but the appeal was dismissed on January 3, 2002, for lack of prosecution.

The federal defendants here state that Case No. 1:02-cv-01435-ESH was a petition for writ of mandamus and related declaratory and injunctive relief against President George W. Bush, Captain Brusseau, and other federal officials to compel Coast Guard approval of plaintiff's application for a "National Open Carry Handgun" endorsement on his merchant marine identification. Judge Huvelle decided that the essential elements for a writ of mandamus were lacking and entered an order on October 10, 2002 dismissing the petition for writ of mandamus with prejudice and dismissing the motions for injunctive and declaratory relief as moot. They relate that the District of Columbia Circuit Court of Appeals affirmed and denied plaintiff's petition for rehearing and petition for rehearing en banc. His petition for certiorari was denied.

The federal defendants add that plaintiff filed another civil action in the District Court for the District of Columbia, Case No. 1:03-cv-02160-RBW, against President Bush, U.S. Attorney General John Ashcroft, Secretary of the Department of Homeland Security Thomas Ridge, Admiral Collins, Captain Brusseau, and Judge Huvelle alleging claims under RICO and various constitutional claims. That case was assigned to U.S. District Judge Reggie B. Walton. Those defendants were represented by Dennis C. Barghaan, Jr., Assistant U.S. Attorney for the Eastern District of Virginia who was appointed special attorney to represent them.

Those defendants' motion to dismiss was granted on August 16, 2004, because the District Court stated that plaintiff had not responded to the motion to dismiss. In addition, the District Court found that the judicial defendants were not subject to suit because of absolute immunity, the government had not waived its sovereign immunity for RICO claims and the remaining claims were barred by res judicata due to the judgment in Case No. 1:02-cv-1434-ESH. On appeal, the District of Columbia Circuit Court affirmed except as to plaintiff's Second Amendment claims against the non-judicial defendants which were remanded for further proceedings since plaintiff had filed an opposition to the defendants' motion to dismiss and the Second Amendment claims were not barred by res judicata.

The federal defendants continue that plaintiff, on remand, filed a motion to transfer the case to the U.S. District Court for the Eastern District of Arkansas, which Judge Walton denied without prejudice. On August 24, 2006, plaintiff filed a motion to dismiss his remaining claims without prejudice to which the defendants responded that plaintiff could obtain a voluntary dismissal without prejudice pursuant to Civil Procedure Rule 41(a)(1) since neither an answer nor a summary judgment motion had been filed. The federal defendants note that plaintiff's motion to dismiss without prejudice is still pending in the District Court for the District of Columbia.

They state that Michael Prendergast, Associate Director for Security Operations with the U.S. Department of Transportation issued a memorandum, on September 17, 2004, that plaintiff should not be admitted to any of the DOT headquarters, FAA headquarters, or U.S. Coast Guard headquarters buildings without obtaining prior approval from security, as a result of plaintiff sending Admiral Collins a document which showed an individual pointing a handgun with language which the Coast Guard regarded as threatening and another one showing bullet holes in a target and blood dripping from the words "terrorists" and criminals." A second notice was issued on August 11, 2006, when plaintiff attempted to enter the Coast Guard headquarters building; he says he did not receive the September 17, 2004 Do Not Admit Notice. The second notice provides that plaintiff should notify the Office of Security and arrange for clearance to enter or access the building if he should have any official business at the Coast Guard headquarters building.

In the present case, the federal defendants state that the complaint alleges that fraudulent, corrupt and illegal actions by them constitute a pattern of racketeering activity in violation of the civil RICO statute and that the Coast Guard's April 19, 2002 decision denying his request for a "National Open Carry Handgun" endorsement and the decisions of Judges Huvelle and Judge Walton are "Rulings under "Judicial Review." Besides monetary damages, plaintiff seeks a writ of mandamus compelling the Coast Guard to place a "National Open Carry Handgun" endorsement on this merchant seaman's document.

The federal defendants first argue that the claims against the judicial defendants are barred by judicial immunity as the allegations regarding their conduct are founded on the performance of their judicial duties in plaintiff's lawsuits in the District Court for the District of Columbia. Next, they assert that plaintiff's 1,685 page complaint plus addendums does not comply with Civil Procedure Rule 8(a) and so any possible legally distinct claims besides the RICO claim and the claim for a writ of mandamus for the endorsement should be dismissed without prejudice.

As to the RICO claim, the federal defendants contend that this Court lacks subject matter jurisdiction as the complaint is asserting claims against the defendants in their official capacities -- since there is no clear statement that the claims are being asserted against the government officials in their personal capacities -- and the United States has not waived ...


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