Vincent v.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: ALFRED J. VINCENT,
No. 96-508
Petitioner.

On Petition for Writ of Mandamus.
(CA-75-23-W)

Submitted: May 16, 1996

Decided: February 4, 1997

Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Sanctions imposed by published per curiam opinion.

_________________________________________________________________

COUNSEL

Alfred J. Vincent, Petitioner Pro Se.

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner Dr. Alfred J. Vincent has now appeared before this court
twenty times, repeatedly asking us to revisit litigation that was finally
decided on the merits years ago. Most recently, Vincent filed a peti-
tion for a writ mandamus, which we denied. In Re Vincent, 86 F.3d
1154 (4th Cir. 1996). On May 16, 1996, we ordered Vincent to show
cause as to why we should not sanction him for filing this mandamus
petition. Today, having reviewed his response, we impose sanctions
on Vincent, pursuant to Federal Rule of Appellate Procedure 38, for
filing this mandamus petition, which we find to be utterly frivolous.

This mandamus action, as well as the nineteen other appeals prose-
cuted in this court by Vincent, all originated with three unsuccessful
lawsuits brought by Vincent between 1975 and 1991. In 1975, Vin-
cent sued his then-employer Reynolds Memorial Hospital for breach
of contract and tortious interference with contract. Six years later, he
filed a separate suit against Reynolds Memorial Hospital alleging ille-
gal restraint of trade and conspiracy to monopolize. These two suits
were consolidated and, after protracted litigation, the trial court
granted a directed verdict in favor of Reynolds, which we affirmed.
Vincent v. Reynolds Memorial Hospital, 930 F.2d 913 (4th Cir. 1991).
In 1988, Vincent sued an attorney who represented Vincent's former
patient in a medical malpractice suit against Vincent and the doctor
who appeared as an expert witness in that suit, claiming malicious
prosecution and abuse of process. District Court Judge Robert Max-
well granted summary judgment in favor of the defendants, and we
affirmed. Vincent v. McCamic & McCamic , 945 F.2d 399 (4th Cir.
1991). Finally, in 1991, Vincent petitioned for removal to federal
court of a case in which Reynolds sought to satisfy a lien held by
Reynolds against Vincent. District Court Judge Maxwell dismissed
this petition for lack of jurisdiction because it was untimely filed, and
again, we affirmed.

From this core of cases, Vincent has launched an all-out assault on
the federal court system, in a vain effort to have his original cases
reopened. As we have repeatedly said, Vincent's recurrent actions
before this court are nothing more than "an attempt to resubmit claims
to a federal court that were decided in an earlier state court action,"
Vincent v. C&P Telephone Co., 57 F.3d 1067 (4th Cir. 1995), "to
press the same claim[s] undaunted" even though they have already
been decided "several times" and even though the situation "has not
changed," Reynolds Memorial Hospital v. Vincent, 14 F.3d 596, and
"to have the district court re-open this litigation on its merits" even
though there was "no ground for revisiting the merits," Vincent v.
Reynolds Memorial Hospital, 14 F.3d 598.

In his recent mandamus petition, Vincent made several requests
which have been repeatedly rejected by this court. Vincent requested

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that District Court Judge Maxwell be disqualified from hearing all
cases involving him. We rejected this request, In Re: Vincent, 86 F.3d
1154 (4th Cir. 1996) ("Vincent's petition for mandamus is merit-
less."), just as we have rejected it and similar requests on numerous
other occasions. See Vincent v. Reynolds Memorial Hospital, 8 F.3d
822 (4th Cir. 1993) (denying Vincent's motion "to recuse Judge Max-
well"); In Re: Vincent, 972 F.2d 344 (4th Cir. 1992) (dismissing Vin-
cent's "mandamus petition seeking an order directing that Judge
Maxwell recuse himself"); Vincent v. McCamic & McCamic, 945
F.2d 399 (4th Cir. 1991) (finding "no abuse of discretion in Judge
Maxwell's refusal to recuse himself"); Vincent v. Ohio Valley Medi-
cal Center, 905 F.2d 1533 (4th Cir. 1990) (dismissing Vincent's "mo-
tion to order the recusal of Judge Kidd"); Vincent v. Reynolds
Memorial Hospital, 881 F.2d 1070 (4th Cir. 1989) (denying Vincent's
mandamus petition "seek[ing] a writ ordering Judge Maxwell and
Judge Kidd to disqualify themselves from presiding over any of Vin-
cent's cases on the ground that they are biased against him"). Vincent
also moved that we dismiss his appeal in No. 81-1513. We denied this
motion as well, In Re Vincent, 86 F.3d 1154, just as we had denied
an identical motion brought by Vincent just last year. In Re: Vincent,
68 F.3d 463 ("deny[ing] Vincent's motion to dismiss his appeal in
No. 81-1513"). We also denied Vincent's motion for certification of
certain vague questions to the Supreme Court, another motion that
forms a staple of Vincent's core of claims repeatedly brought in this
court. See In Re: Vincent, 68 F.3d 463; Vincent v. Reynolds Memorial
Hospital, 930 F.2d 913.

In fact, in this mandamus petition, Vincent raised only one issue
that he has not previously raised before this court: Vincent moved that
all members of this court be recused from hearing any further actions
involving him, and instead, that an independent committee be set up
to decide all of his cases. Needless to say, we denied this motion as
well. In Re Vincent, 86 F.3d 1154.

But to simply recite the number of times that Vincent has filed
actions in this court (twenty), and the repetitive and frivolous nature
of those actions, only begins to describe the enormous amount of time
that has been consumed in addressing these actions. Each of Vin-
cent's appeals generally raises not just one or two claims, but a litany
of them, each of which theoretically requires response. For example,

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in this mandamus petition, in addition to asking that Judge Maxwell
be recused, Vincent moved that he be appointed counsel; that all
members of this court be recused; that a separate tribunal be set up
to address his claims; that we dismiss a previous appeal; that ques-
tions be certified to the Supreme Court; that the district court's judg-
ment be vacated; and that he be granted a hearing en banc -- a total
of eight separate matters that we were required to address.

Even more of this court's resources are consumed in distilling
exactly what issues Vincent is raising, because his voluminous plead-
ings comprise scores of pages, apparently prepared by Vincent him-
self, containing incoherent and rambling arguments ostensibly setting
forth and supporting his claims. In the instant mandamus petition for
which we impose sanctions, Vincent's pleadings were 152 pages
long. They included a 56-page petition for mandamus, a 10-page
"Memorandum in Support of Subsidiary Motions," a 10-page "Pream-
ble and Brief," a 15-page supplement to his petition for mandamus,
a 27-page batch of "exhibits," and a 34-page"Amended Brief." His
response to our order to show cause why he should not be sanctioned
contained an additional 154 pages, including a 24-page "Response to
5-16-96 Order to Show Cause," a 39-page "Supplementary Response
to 5-16-96 Order to Show Cause," a 14-page "Motion to Strike 5-16-
96 Order to Show Cause," a 4-page "Motion to Strike or Vacate 5-16-
96 Order to Show Cause," a 19-page "Brief in Support of Motion to
Strike or Vacate 5-16-96 Order to Show Cause," and 54 more pages
of "Exhibits."

Because our uniform, summary rejection of Vincent's claims have
failed to stem the tide of Vincent's filings in this court, we are forced
to resort to more direct action against Vincent.

Under F.R.A.P. 38, we are authorized to impose sanctions upon
appellants for the filing of frivolous appeals. Bast v. Cohen, Dunn &
Sinclair, PC, 59 F.3d 492 (4th Cir. 1995). F.R.A.P. 38 provides:

If a court of appeals determines that an appeal is frivolous,
it may, after a separately filed motion or notice from the
court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.

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Such "just damages" and "costs," include"damages, attorney's fees
and other expenses incurred by an appellee if the appeal is frivolous,"
regardless of whether "the appeal resulted in delay." F.R.A.P. 38,
Advisory Committee Notes. We are authorized to award such dam-
ages and costs "in [our] discretion in the case of a frivolous appeal
as a matter of justice to the appellee and as a penalty against the
appellant." Id.

Here, we ordered Vincent to show cause as to why he should not
be sanctioned for filing a frivolous appeal, thereby providing him
with "notice from the court and reasonable opportunity to respond."
F.R.A.P. 38. Having reviewed his response to our order, we now con-
clude that the appeal was indeed "frivolous," and therefore impose the
following sanctions upon Vincent. In lieu of particularized fees and
costs, we order Vincent to pay sanctions in the amount of $500, as we
have frequently done in analogous circumstances. See, e.g., Peeples
v. Commissioner of Internal Revenue, No. 87-1053 (4th Cir. Sept. 23,
1987) (unpublished); Leining v. Commissioner, No. 86-1253 (4th Cir.
July 21, 1987) (unpublished); United States v. Bowser, No. 86-1241
(4th Cir. April 22, 1987) (unpublished); United States v. Wissig, No.
86-1188 (4th Cir. Dec. 29, 1986) (unpublished); Chapman v. Egger,
No. 86-2151 (4th Cir. Oct. 21, 1986) (unpublished); Jensen v. United
States, No. 86-1504 (4th Cir. June 25, 1986) (unpublished), motion
for accounting and cert. denied, 479 U.S. 924 (Oct. 20, 1986). As this
is a mandamus action, the proper appellee is the court itself, see Ex
Parte Fahey, 332 U.S. 258 (1947) (mandamus actions "have the
unfortunate consequence of making the judge a litigant, obliged to
obtain personal counsel or to leave his defense to one of the litigants
before him."), and so the monetary sanctions are payable to the clerk
of the court. Additionally, following a practice adopted in one of our
sister circuits, we enjoin Vincent from filing any further civil actions
in this court until such time as these monetary sanctions are paid, and
unless a district court judge certifies that his claim is not frivolous.
See Smith v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991) (ordering
that petitioner "be barred from filing any further appeals in this court
until (1) the sanctions awarded by this court and the district court are
fully paid; and (2) a district court certifies his appeal as having some
arguable merit"); cf. Shief v. Kakita, 116 S. Ct. 1311 (1996) (directing
"the Clerk not to accept any further petitions for certiorari from
[appellant] in noncriminal matters unless he pays the docketing fee

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required by [Supreme Court] Rule 38 and submits his petition in com-
pliance with [Supreme Court] Rule 33.1"); Jones v. ABC-TV, 116 S.
Ct. 870 (1996) (same); Attwood v. Singletary, 116 S. Ct. 769 (1996)
(same); Whitaker v. Superior Court of California, San Francisco
County, 115 S. Ct. 1446 (1995) (same).

It is so ordered

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