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Order Form (01/2005) Case 1:04-cv-04581 Document 96 Filed 09/20/2005 Page 1 of 1

United States District Court, Northern District of Illinois

Name of Assigned Judge Joan B. Gottschall Sitting Judge if Other

or Magistrate Judge than Assigned Judge

CASE NUMBER 04 C 4581 DATE 9/20/2005

CASE Kevin Jay Long vs. Police Officer Martin A. Vogel, et al.
TITLE

DOCKET ENTRY TEXT:

Enter Order. For the reasons stated in the attached order, Plaintiff’s complaint is dismissed in its entirety.
Defendant’s Rule 11 motion [41-1] is denied without prejudice, but they are free to renew their motion within
30 days if they still wish to pursue sanctions. To clarify the docket in this case, the following outstanding
motions are denied as moot: [21-1], [28-1], [29-1], [31-1], and [34-1]. This action is hereby terminated.

Docketing to mail notices.

Mail AO450

Courtroom Deputy rj
Initials:

04C4581 Kevin Jay Long vs. Police Officer Martin A. Vogel, et al.
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 Case 1:04-cv-04581 Document 97 Filed 09/20/2005 Page 1 of 7

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KEVIN JAY LONG, )

)
Plaintiff, ) Case No. 04 C 4581
v. )
) Judge Joan B. Gottschall
POLICE OFFICER MARTIN A. )
VOGEL, et al., )
)
Defendants. )

ORDER

Kevin Jay Long has sued Chicago Police Officers Martin A. Vogel and Louis A. Rangel, the

Catholic Bishop of Chicago, Our Lady of Victory School, Sister Bernadette Matheison, Emery

Joseph Yost, John Yost, Joseph Patrick McCaffery, Norma L. Waters and Kathleen Waters, charging

the defendants with violating his civil rights and committing various intentional torts. Several of

the defendants filed a motion for sanctions pursuant to FED. R. CIV. P. 11(b)(1)-(3) and 11(c), which

this court referred to Magistrate Judge Ashman. In a Report and Recommendation (“R&R”) issued

on June 29, 2005, Judge Ashman recommended that this court (1) dismiss Long’s complaint as a

sanction for his refusal to abide by various rules and rulings of the U.S. District Court for the

Northern District of Illinois; and (2) stay the defendants’ Rule 11 motion until final disposition of

the case. Long filed a timely objection to the R&R, various defendants responded, and Long replied.

For the reasons stated below, this court adopts Judge Ashman’s recommendation of dismissal and

overrules Long’s objections thereto.

The following background is relevant to this order.1 Long is a frequent pro se litigant in both

federal and state court who has filed four recent cases in the Northern District of Illinois charging

1
Because dismissal of an action is a dispositive matter, this court’s review of the
proceedings in front of Judge Ashman is de novo. 28 U.S.C. § 636(b)(1).

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the Chicago police and his neighbors with violating his civil rights. See Long v. Vogel, No. 04 C

4581 (N.D. Ill.); Long v. McDermott, No. 04 C 1182 (N.D. Ill.); Long v. McDermott, No. 03 C 6101

(N.D. Ill.); Long v. Williams, No. 01 C 3080 (N.D. Ill.). Among the defendants in this most recent

action are McCaffery, an attorney who represented some of the defendants in one of Long’s previous

federal suits, and two of the defendants from that suit. According to these defendants, Long brought

the present action for purposes of harassment after his previous suit was dismissed.

One of the exhibits relied on by the defendants in their Rule 11 motion is a message allegedly

left by Long on the answering machine of third party attorney Christopher Stone, who apparently

represented Long at one point in a separate case. After this court referred the defendants’ motion

to Judge Ashman, Long requested that Judge Ashman issue a special discovery order, alleging that

the answering machine tape recording had been tampered with and should be produced and

analyzed. Judge Ashman denied the request, and Long subsequently mailed subpoenas to Stone and

McCaffery commanding production of the tape recording and answering machine to have these

items “undergo forensic analysis.” These subpoenas were viewed by Judge Ashman as a patent

attempt to circumvent his order. In addition, they were facially invalid: FED. R. CIV. P. 45(a)(3)

requires the signature of the clerk of the court on all subpoenas unless they are issued by an attorney

in his or her capacity as officer of the court, and Long failed to comply with this rule. Although

Long is not an attorney, he personally signed the subpoenas as the court’s “issuing officer.”

Defendants sent Long three letters outlining the deficiencies in the subpoenas. When Long

failed to withdraw or correct the subpoenas, defendants filed a motion to quash and a motion for a

rule to show cause why Long should not be held in contempt. Long responded by filing his own

motions for a rule to show cause and for a discovery order, which demanded compliance with the

invalid subpoenas. Judge Ashman held a hearing in which he denied Long’s motions, sanctioned

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Long $500 per improperly issued subpoena to cover the defendants’ reasonable legal fees, and

specifically warned Long that failure to pay the sanctions within 30 days would result in a

recommendation of dismissal of his case. Judge Ashman held another hearing after the 30-day

deadline, which Long failed to attend, and he made the present dismissal recommendation after

learning that Long had not paid the sanction as of that date.

Long makes a number of arguments in opposition to both the original sanction and the

dismissal recommendation, including several arguments considered and rejected by Judge Ashman

that this court reviews de novo.2 Long argues at the threshold that Judge Ashman was without

jurisdiction to issue the original discovery sanction because he was to entertain only arguments

related to the Rule 11 motion. This contention fails because the referral order specifically

contemplated that Judge Ashman supervise pretrial discovery. See Doc. No. 48, Transfer of Case

to the Executive Committee for Referral to Magistrate Judge. Long also complains that defendants

did not file an affidavit along with their motion to quash and for a rule to show cause in violation

of Local Rule 37.1, but here too he is mistaken; as noted by Judge Ashman, the defendants filed the

required discovery affidavit on April 4, 2005. Accordingly, Judge Ashman’s determination that the

issuance of facially invalid subpoenas circumventing his prior order was a sanctionable offense does

not fail for procedural defect.

Long next argues that the original sanction was unduly harsh given that he is proceeding pro

se and the fact that it was his first rule infraction in front of Judge Ashman. Defendants maintain

that Long’s pro se status should not be accorded much weight because he is a former law student

2
Long also filed a separate motion with this court to vacate Judge Ashman’s original
sanctions order, but this motion was not properly before this court until after the Report and
Recommendation issued due to conflicts in Long’s schedule. Accordingly, this order addresses both
the arguments in Long’s motion to vacate as well as his objections to the Report and
Recommendation.

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and a seasoned litigator. Long has filed a number of administrative complaints and lawsuits in

federal and state court, but he is not an attorney, so the court will consider his pro se status in

reviewing his objections. However, the court also notes that Long is more sophisticated than many

pro se litigants, and his pleadings in this case demonstrate that he has substantial familiarity with

the Federal Rules and Rule 45 in particular.

With respect to the original monetary sanction of $500 per subpoena, the court finds this

assessment to be reasonable. Long was given multiple opportunities to cure or withdraw the

subpoenas after he was notified of their defects, but he refused to do so. His refusal necessitated the

filing of motions to quash and for a rule to show cause, and also required Judge Ashman to conduct

a separate hearing, which defendants’ attorneys were required to attend. Judge Ashman’s sanction

was proper, and is specifically contemplated by the Federal Rules. See FED. R. CIV. P. 45(c)(1)

(reasonable attorney’s fees are an appropriate sanction for failure to comply with Rule 45); Reyblatt

v. Illinois Inst. of Tech., No. 97 CV 927, 1999 WL 181995, at *4 (N.D. Ill. Mar. 24, 1999) aff’d 202

F.3d 274 (7th Cir.) (magistrate judges may assess reasonable attorney’s fees against pro se litigants

who violate Rule 45).

Long also maintains that the sanction was inappropriate because he is a pauper and cannot

afford to pay; however, the court need not address this argument at length because Long refuses to

provide any evidence of his alleged indigence. Long did not file an application to proceed in forma

pauperis in this case, and the record reflects no other means by which this court may ascertain his

claim of poverty. Long contends that Judge Ashman’s representation that Long has refused to

disclose his financial information, R&R at 8, is a lie because Judge Ashman never asked specific

questions about his financial situation. But even assuming that this is true, the R&R makes it clear

that mere allegations of poverty without any corresponding proof do not shield a party from

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sanctions, so Long knew what was expected of him at least as of the date of the R&R. Long has

made substantial filings in this case since then, but still has not provided any proof of his alleged

indigence to Judge Ashman or to this court.

Long argued below, and continues to maintain, that his non-compliance with Rule 45 must

be excused because his error was merely “technical” and therefore nonprejudicial. Long asks

rhetorically what he would have to gain by not obtaining the necessary signature from the clerk’s

office since such an act would be “easy and free,” but this is precisely the point: curing the defect

was not burdensome, yet Long persistently refused to do so despite being informed of the defect on

multiple occasions, instead insisting that the subpoenas were valid and must be enforced.3 Long’s

actual argument is not that he should be excused a technical mistake, but that he is not required to

obey any rules and rulings that he perceives as “technicalities.” This will not do.

Long has engaged in similar behavior against defendants in the past, bolstering Judge

Ashman’s finding that there is clear and convincing evidence of Long’s intentional refusal to comply

with the rules and rulings of the Northern District of Illinois. In Long v. McDermott, a case that

involved McCaffery and two of the present defendants, Long sent out an improper summons lacking

the signature of the clerk and seal of the court in violation of Rule 4. Long v. McDermott, No. 03

C 6101, 2004 WL 2966934, at *2 (N.D. Ill. Dec. 1 2004). Opposing counsel informed him that

service likely was defective, but Long nevertheless represented to the court that he had properly

served defendants in compliance with that rule. Id. In McDermott, as here, Long argued that the

failure to obtain the clerk’s signature was a “technicality” from which he should be exempt because

3
Long maintains that he did not have to follow defendants’ admonitions because
McCaffery is “one of the dirtiest lawyers in this state.” McCaffery’s character is utterly irrelevant;
he did not write Rule 45. Long may not disregard the rules and rulings of a court simply because
they were cited by an opponent he does not hold in high regard.

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of his pro se status. As the McDermott court observed, “Mr. Long offered no credible explanation

for his decision to file false returns of service or for his subsequent written and oral declarations that

service was proper, but suggested that, at worst, he violated a mere ‘technicality’ not rising to the

level of improper service. ... To this day, Mr. Long continues to deny improper service, despite

convincing evidence and his own admission to the contrary.” Id. The McDermott court then found

Long in contempt and sanctioned him, putting Long on notice that failure to obtain the signature of

the clerk when required by the Federal Rules is not a technicality he may choose to disregard.

Long’s failures are symptomatic of a larger issue, which is that judicial admonition (the

remedy Long apparently feels is appropriate) and even monetary sanctions are ineffective in curbing

his behavior. As another example, Long has disobeyed repeated instructions from courts in this

district not to publish the social security numbers and birth dates of police officers and other

defendants in his pleadings. Id. at *3 (sanctioning Long for deliberately violating an order not to

publish defendants’ personal information and falsely representing to the court that no such order had

been issued). In fact, notwithstanding orders from two judges requiring Long to redact defendants’

personally identifiable information from his pleadings, Long’s original complaint in this action also

included such information. The Executive Committee ultimately was forced to issue an order

prohibiting Long from engaging in such behavior. See Executive Committee Order, Sept. 27, 2004.

As the above examples demonstrate, much of Long’s focus has been on engaging in obstinate

behavior rather than on marshaling arguments that would advance his claims, and his past conduct

has not been deterred by sanctions short of dismissal. The court has carefully considered the

evidence before Judge Ashman, Judge Ashman’s Report and Recommendation, and the parties’

papers, and agrees that Long’s persistent refusal to abide by the rules and rulings of the Northern

District of Illinois and repeated insistence that his violations are mere technical failures that must

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be overlooked places Long among those rare cases in which outright dismissal is warranted as a

sanction. Long’s case is dismissed with prejudice for the reasons stated above.

With respect to the defendants’ Rule 11 motion for sanctions, the court assumes that this

opinion moots the issue: dismissal of the case is at least as severe as any sanction to which

defendants would have been entitled, and efforts to extract monetary sanctions from Long in this

case and McDermott have been futile. Defendants’ Rule 11 motion is denied without prejudice, but

they are free to renew their motion within 30 days if they still wish to pursue sanctions. The court

also notes that Long has a Rule 11 motion pending, but retention of jurisdiction for the limited

purpose of deciding Rule 11 motions does not preclude a finding that the underlying litigation has

been completely and definitively resolved. Cleveland v. Berkson, 878 F.2d 1034, 1035 (7th Cir.

1989). This action is hereby terminated.

ENTER:

/s/
Joan B. Gottschall
United States District Judge

Dated: September 20, 2005

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