UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Chukwuma E. Azubuko

v. Civil No. 06-cv-266-SM

Massachusetts Lawyers Weekly

REPORT AND RECOMMENDATION

Before the Court is pro se and in forma pauperis plaintiff

Chukwuma Azubuko's complaint asserting a defamation claim against

the Massachusetts Lawyers Weekly. The matter is before me for

preliminary review to determine, among other things, whether the

complaint invokes the subject matter jurisdiction of this Court.

See United States District Court for the District of New

Hampshire Local Rule ("LR") 4.3(d)(1)(B)(i). Because I find that

it does not, I recommend that the action be dismissed for lack of

subject matter jurisdiction. I further recommend that Azubuko be

enjoined from filing any suit in this Court in the future without

the prior approval of a judicial officer.

Standard of Review

Under this Court's local rules, when a plaintiff commences

an action pro se and in forma pauperis, the magistrate judge is

directed to conduct a preliminary review and to:

(i) report and recommend to the court that the

filing be dismissed because the allegation of

Case 1:06-mc-00062-SM Document 1 Filed 11/09/06 Page 1 of 12
poverty is untrue, the action is frivolous or

malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief against a

defendant who is immune from such relief under 28

U.S.C. § 1915(e)(2); or it fails to establish

subject matter jurisdiction under Fed. R. Civ. P.

12(b) (1); or

(ii) grant the party leave to file an amended

filing in accordance with the magistrate judge's

directives; or

(iii) pursuant to Fed. R. Civ. P. 4(c)(2), appoint

a person to effect service.

LR 4.3(d)(1)(B). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales , 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble , 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). "The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled." Ahmed

v. Rosenblatt , 118 F.3d 886, 890 (1st Cir. 1997), cert. denied ,

Ahmed v. Greenwood , 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard , 83 F.3d 1, 3

(1st Cir. 1996) (stating the "failure to state a claim" standard

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of review and explaining that all "well-pleaded factual

averments," not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A. , 843

F.2d 46, 49 (lst Cir. 1988).

Backaround

Although the allegations presented in the complaint are not

entirely comprehensible, reading the assertions indulgently, it

is possible to identify the facts essential to this matter.

Azubuko appears to assert that his civil rights have been

violated because an article appearing in the November 14, 2005

edition of the Massachusetts Lawyers Weekly defamed and libeled

him. The article is attached to the complaint and discusses

Azubuko's contentious experiences before several federal courts.

The Massachusetts Lawyers Weekly is the only defendant named

to this action. Azubuko has provided addresses in Boston,

Massachusetts for both himself and the defendant.

Discussion

1. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. Kokkonen

v. Guardian Life Ins. Co. of Am. , 511 US. 375, 377 (1994). The

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presumption is that a federal court lacks jurisdiction. Id.

Consequently, the burden is on the plaintiff who claims

jurisdiction to affirmatively allege jurisdiction and prove it.

Id. ; see also Bender v. Williamsport Area Sch. Dist. , 475 U.S.

534, 541 (1986). To bring a civil action within the court's

subject matter jurisdiction, a plaintiff must allege that his

action either involves a federal question, or involves citizens

from different states and an amount in controversy in excess of

$75,000. See 28 U.S.C. §§ 1331 & 1332. If it appears that the

court lacks subject matter jurisdiction over the matter, the

court is required to dismiss the action. Fed. R. Civ. P.

12(h)(3).

A. Diversity Jurisdiction

Although plaintiff has alleged nine and a half million

dollars in damages, and has therefore met the amount in

controversy requirement of 28 U.S.C. § 1332, the complaint does

not allege that the parties are citizens of different states.

The only address information submitted by Azubuko indicates that

both he and the Massachusetts Lawyers Weekly are located in

Massachusetts. Therefore, Azubuko has not alleged diversity

jurisdiction. See 28 U.S.C. § 1332.

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B. Federal Question Jurisdiction

Azubuko has alleged that the defendant, a private

publication, has defamed him. Azubuko alleges that his claim

arises under 42 U.S.C. § 1981 which proscribes intentional racial

discrimination. Alexis v. McDonald's Rests. of Mass., Inc. , 67

F.3d 341, 346 (1st Cir. 1995) (citing Gen. Blda. Contractors

Ass'n v. Pennsylvania , 458 U.S. 375, 391 (1982) and Dartmouth

Review v. Dartmouth Coll. , 889 F.2d 13, 17 (1st Cir. 1989)).

Section 1981 gives rise to a cause of action against both private

and public actors. See Powell v. City of Pittsfield , 143 F.

Supp. 2d 94, 112 (D.Mass. 2001).

Section 1981 claims must allege both purposeful

discrimination, and a specific impairment of one or more of the

rights enumerated in the statute, which provides as follows:

All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the

security of persons and property as is enjoyed by

white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

42 U.S.C. § 1981(a); Gratz v. Bollinaer , 539 U.S. 244, 276 n.23

(2003) (citing Gen. Blda. Contractors Ass'n , 458 U.S. at 389-90).

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Here, Azubuko has baldly alleged that the Massachusetts Lawyers'

Weekly violated his civil rights by defaming him. The article in

question, which Azubuko has submitted as part of his complaint is

not complimentary to Azubuko, but no factual basis upon which a

conclusion of racial animus on the part of the publication

appears either in the article or in Azubuko's complaint.

Further, Azubuko has not demonstrated how any of the enumerated

rights protected by § 1981 have been violated in this case.

Accordingly, I find that Azubuko has failed to state a claim

under § 1981 and therefore, has not raised a federal question in

his complaint, as a claim alleging defamation not motivated by

racial animus, arises as a tort under state law.

2. Abusive Litiaation Practices

It is worth noting that the article in question in this case

was about Azubuko's vexatious and abusive litigation practices in

various courts in the United States. A simple Westlaw search

using plaintiff's name reveals more than seventy cases in the

federal district courts located in New Jersey, Massachusetts, the

Northern District of Texas, the Eastern District of Tennessee,

Delaware, Florida, the Eastern District of Pennsylvania, the

Eastern District of Louisiana, Connecticut, and Rhode Island, as

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well as the First, Second, Third, Fourth, Ninth, Tenth, and

District of Columbia Circuit Courts of Appeals, the United States

Supreme Court, and various state courts in which Azubuko has

entered into litigation. This list is not exhaustive of cases

filed by Azubuko in the state and federal courts of the United

States, merely illustrative of Azubuko's filing practices.

Azubuko has been enjoined from filing civil actions in the

United States District Court for the District of Massachusetts as

a result of his vexatious filing practices there. Chukwu v.

Reaistry of Motor Vehicles, et al. , C.A. No. 95-11661-WGY, docket

no. 13 (Order directing clerk not to accept for filing any

further documents tendered pro se by plaintiff unless certain

conditions were met) (D.Mass. Sept. 6, 1995). That Order was

reaffirmed in Azubuku v. Commonwealth Auction Ass'n , C.A. 03-

10053-PBS, docket no. 3 (Memorandum and Order) (D.Mass. Dec. 17,

2003) and Azubuko v. Suffolk Super. Ct., et al. , C.A. No. 05-

10609-RCL, docket no. 12 (Order for dismissal) (D. Mass. Apr. 6,

2006). In an effort to circumvent the filing restrictions placed

upon him by the United States District Court for the District of

Massachusetts, Azubuko has filed actions in the Districts of

Florida, Georgia, Louisiana, Delaware, Michigan, and now this

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Court.' These actions allege causes of action appropriately

brought in the District of Massachusetts, which has personal

jurisdiction over both the plaintiff and the defendants named by

plaintiff.

A federal court may not sua sponte raise the issue of

personal jurisdiction as the basis for dismissing a case, as

personal jurisdiction is a waivable individual liberty right.

McBee v. Delica Co., Ltd. , 417 F.3d 107, 127 (1st Cir. 2005).

Azubuko, as a law school graduate, is aware, however, that should

the defendant in this case assert this Court's lack of personal

jurisdiction as a defense, it would very likely be successful as

there is no apparent basis upon which this Court could exercise

personal jurisdiction over the defendant in this case absent the

defendant's waiver. Accordingly, I find that the only possible

purpose Azubuko had in filing this matter in this Court was to

attempt to evade the filing restrictions he would face in the

District of Massachusetts.

'This case is one of four cases recently filed in this Court

by Azubuko, all of which would more appropriately have been

brought in the District of Massachusetts. See Azubuko v. Mass.

Ass't Att'y Gen., et al. , Civ. No. 06-267 (filed July 19, 2006);

Azubuko v. Coffey, et al. , Civ. No. 06-323 (filed August 31,

2006); Azubuko v. United States Court of Appeals - Tenth Cir. ,

Civ. No. 06-00333 (filed Sept. 7, 2006).

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"Federal courts plainly possess discretionary powers to

regulate the conduct of abusive litigants." Cok v. Fam. Ct. of

R.I. , 985 F.2d 32, 34 (1st Cir. 1993). This power encompasses

the Court's ability to enjoin a pro se party from filing

frivolous and vexatious pleadings. See United States v. GomezRosario , 418 F.3d 90, 101 (1st Cir. 2005). Where a litigant has

demonstrated a "propensity to file repeated suits . . . involving

the same or similar claims" of a "frivolous or vexatious nature,"

a bar on further filings is appropriate. Castro v. United

States , 775 F.2d 399, 409 (1st Cir. 1985) (per curiam) (abrogated

on other grounds by Stevens v. Dep't of the Treasury , 500 U.S. 1

(1991)). An injunction on the ability to file lawsuits should be

tailored to the specific circumstances presented, particularly

when issued against a pro se plaintiff. Cok , 985 F.2d at 34-35.

A comprehensive filing ban should occur only where clearly

indicated by the record in a particular case. Id. at 36 (warning

that injunction restricting all court access should be issued

"only when abuse is so continuous and widespread as to suggest no

reasonable alternative").

This Court is mindful of the severity of issuing a broad

injunction against a pro se plaintiff. See Castro , 775 F.2d at

410 ("[I]f an injunction against future litigation were couched

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in overly broad terms, this could impermissibly infringe upon a

litigator's right of access to the courts"); Pavilonis v. Kina ,

626 F.2d 1075, 1079 (lst Cir.), cert. denied , 449 U.S. 829

(1980).

Of course, litigiousness alone will not support an

injunction. See Pavilonis , 626 F.2d at 1079. However, Azubuko's

filing practices have been abusive and persistent. Azubuko has

unduly burdened the judicial resources of the courts of the

United States with groundless lawsuits despite being previously

enjoined from filing lawsuits without leave of court and

sanctioned for repeatedly violating that injunction.

Accordingly, this Court finds that the only way to assure that

this Court is not further burdened by Azubuko's proliferation of

lawsuits is to enjoin him from filing any suit without first

seeking leave from a judicial officer. I recommend that the

following injunction issue against plaintiff Chukwuma Azubuko2,

Chukwuma Azubuko is permanently enjoined and

restrained from continuing, instituting or

prosecuting without prior leave of court, this or

any other legal proceeding in this Court.

2Azubuko also files lawsuits under the name Chukwu Azubuko

and Azubuko Chukwuma. This injunction, if approved, will apply

to all suits filed with those names as well.

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Chukwuma Azubuko may seek leave of Court by filing

a complaint that clearly states the claims he seeks

to raise, together with an affidavit certifying

that the claims have not previously been raised

before this Court or any other federal or state

court, and that this Court has jurisdiction over

the subject matter and the parties in the case.

Chukwuma Azubuko will be required to pay the filing

fee or file an in forma pauperis application at the

time of filing.

Any filing presented to the Clerk's Office by

Chukwuma Azubuko shall be put into a master

miscellaneous file and presented to a magistrate

judge or district judge for review. The judge

shall determine whether the filing complies with

the terms of the injunction, and issue a report and

recommendation or an order accordingly. If the

filing violates the injunction, the court will

reject the filing and return the filing fee.

This injunction does not prevent Azubuko from

pursuing any meritorious claims which may arise in

the future, and that are appropriately brought in

this Court, but rather is intended to prevent

Azubuko from improperly utilizing the resources of

this Court as a venue to persist in his abusive

litigation practices.

Conclusion

For the reasons stated herein, I recommend that the claims

be dismissed. See LR 4.3(d)(1)(B). I further recommend that the

injunction contained in this report and recommendation be issued.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

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appeal the district court's order. See Unauth'd Practice of Law

Comm. v. Gordon , 979 F.2d 11, 13-14 (lst Cir. 1992); United

States v. Valencia-Copete , 792 F.2d 4, 6 (lst Cir. 1986).

R. Muirhead

United States Magistrate Judge

Date: November 9, 2006

cc: Chukwuma Azubuko, pro se

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