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Bishay v. Cornetta

United States District Court, D. Massachusetts

November 13, 2017

BAHIG BISHAY, Plaintiff,
ROBERT A. CORNETTA, et al., Defendants.



         For the reasons set forth below, the Court dismisses this action.

         I. BACKGROUND

         Pro se plaintiff Bahig Bishay brings this action under 42 U.S.C. § 1983, alleging misconduct by the Superior Court and Land Court departments of the Massachusetts Trial Court and the Honorable Robert A. Cornetta of the Superior Court.[1] According to Bishay, Judge Cornetta, the Superior Court, and the Land Court violated his rights under the Fifth, Seventh, and Fourteenth amendments in conjunction with a state court receivership matter over which Judge Cornetta presided.

         Bishay represents that he was the chief executive officer and a creditor of the company in receivership. He claims that, at some point, he learned that the receiver appointed by the state had defalcated $2.7 million in cash and $1.0 million in other property owned or controlled by the company in receivership. Bishay alleges that, after he reported this misappropriation of funds and property to Judge Cornetta, in 2014 the judge issued a permanent injunction against Bishay and his wife “intending to bar Bishay and his wife from taking any legal action against [the receiver] and his accomplices on account of the defalcation of the $2.7 million in cash and $1.0 million in other property White and his accomplices disposed of without a trace.” Compl. [ECF No. 10] ¶ 10. Bishay further asserts that, in December 2016, the Land Court prevented Bishay from recovering the house where he had lived with his family for thirty years. This property had allegedly been conveyed to one of the accomplices of the receiver for less than ten percent of its value.

         Bishay attached to his complaint the injunction issued by Judge Cornetta in Bell Atlantic Yellow Pages v. US. Auto Exchange Group LTD & Bahig Bishay, ESCV2000-01838 (Essex Superior Ct. Mass.) See Compl. Ex. C [ECF No. 1-1 at 25-27]. In the order, Judge Cornetta found that:

For a prolonged period of time Bahig F. Bishay and, more recently, his wife, Mary Costello Bishay have filed an inordinate series of prolix, duplicative and groundless motions in this matter. The Bishays have also commenced numerous civil actions throughout the Courts of the Commonwealth . . . . The overwhelming majority of the Bishays' civil actions were dismissed. The Bishays appealed the decisions adverse to them to the Massachusetts Appeals Court, the Supreme Judicial Court, the First Circuit Court of Appeals and the United States Supreme Court. Many of the motions filed in this case contain vilifications of the personal character and professional integrity of the attorneys and the parties to this case. Despite being ordered to cease filing “emergency” motions when no such emergency exists, the Bishays have refused to file their motions under Superior Court Rule 9A and continue to file “emergency” motions containing the facts and claims previously rejected by this Court.
The Bishays' continued activities impose an inordinate burden on judicial personnel and the personnel of the Clerk's Offices and constitute a waste of scarce judicial resources. In addition, the Bishays' continued activities have caused the parties hereto to expend a [sic] considerable attorney's fees on frivolous and groundless claims.

Id. at 25-26. Judge Cornetta permanently enjoined Bishay and his wife “from filing any action at law or in equity against any party in Massachusetts state court of original jurisdiction without first fully complying” with a pre-filing screening process conducted by the Regional Administrative Judge or his/her designee. Id. at 26-27. Bishay's appeal of this order was unsuccessful, as noted recently by the Supreme Judicial Court (“SJC”) on August 18, 2017. See Bishay v. Land Ct. Dep t of the Trial Court, 477 Mass. 1032 (2017) (rescript).[2]

         Shortly thereafter, Bishay filed the instant two-count complaint. In Count One, Bishay seeks a Declaratory Judgment that “the Defendants violated Article 2, 10 and 12 of the Massachusetts' Constitution; the Fifth, Seventh, and Fourteenth Amendments to the U.S. Constitution; that said ‘Permanent Injunction' is a nullity, ab initio, thus unenforceable in any court within the United States.” Compl. at 4 (emphases removed). In Count II, Bishay asks that this Court bar the Defendants and “any state or federal court from enjoining Bishay or his wife from bringing and maintaining legal actions in any state or federal court in Massachusetts or elsewhere.” Id. In his prayer for relief, Bishay does not ask for damages.

         Bishay filed a motion for leave to proceed in forma pauperis with his complaint, which motion is still pending. Also pending are Bishay's subsequent motions for entry of default, default judgment, permission to access CM/ECF, and to strike the defendants' opposition to his motion for default as well as Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).


         A. Court's Authority to Review the Complaint

         Because Bishay paid the filing fee and therefore is not proceeding in forma pauperis, the complaint is not subject to screening under 28 U.S.C. § 1915(e)(2). Nonetheless, a court has the inherent power to dismiss frivolous actions, regardless of the status of the filing fee. See Brockton Sav. Bank. v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11 n.5 (1st Cir. 1985)); Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (per curiam); cf. Mallard v. United States Dist. Ct., 490 U.S. 296, 307-308 (1989) (stating that there is “little doubt” a court would have power to dismiss frivolous or malicious actions even in the absence of a statutory provision explicitly providing for the same). Further, dismissal is appropriate where “it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile.” Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 7 (1st Cir. 2007) (quoting Gonza ...

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