United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
reasons set forth below, the Court dismisses this action.
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. 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
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
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
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)
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
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).
Court's Authority to Review the Complaint
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