The Indiana Supreme Court released a per curiam decision Tuesday dismissing the appeal of a man described as a “prolific, abusive litigant” based on the 123 cases he has filed in state court throughout Indiana. In its opinion, the justices also provide guidance to trial courts on how to deal with abusive and vexatious litigation practices.
The opinion comes after Gersh Zavodnik appealed the dismissal of his appeal for failure to timely file a brief and appendix. Zavodnik appealed to the COA after the trial court dismissed his action against Irene Harper under Ind. Trial Rule 41(E).
The justices noted Zavodnik’s lengthy submissions, numerous requests for a change of judge, and numerous motions and other files that are defective, repetitive and lacking merit.
The justices quickly dismissed his arguments in Gersh Zavodnik v. Irene Harper, 49A04-1307-PL-316, and turned to how to deal with these types of litigants. In sum, the opinion says litigants do not have a license to abuse the litigation process; pro se litigants must play by the rules; litigants do not have an unfettered right to proceed in forma pauperis; courts may place reasonable limits on filings by abusive litigants; and judges should not bow to baseless demands for disqualifications.
“The courts of this state, after due consideration of an abusive litigant's entire history, may fashion and impose reasonable conditions and restrictions, guided by those in the statutes, rules, and cases outlined above, on the litigant's ability to commence or continue actions in this state that are tailored to the litigant's particular abusive practices,” the opinion states.
With regard to Zavodnik’s repeated request to file in forma pauperis, the justices wrote, “We note that Mr. Zavodnik has somehow summoned the financial wherewithal to produce probably tens of thousands of pages of filings in well over 100 cases he has brought. Courts may rightfully explore how such an applicant can afford such expenses but claim to lack sufficient means to pay a filing fee.
After considering a litigant’s history of abuse, a court may be justified in imposing restrictions, such as limiting the litigant’s ability to request reconsideration and to file repetitive motions, limit the length of a title used for a filing, and instruct a clerk to reject without return for correction future filings that do not strictly comply with applicable rules of procedure and conditions ordered by the court.
“Mr. Zavodnik's abusive litigation practices in this case and others have included unrelenting attempts to replace the judges presiding over his cases for alleged delays in rulings pursuant to T.R. 53.1 and for alleged bias, prejudice, or misconduct by the judge. But judges presiding over a case are not required to disqualify themselves as a result of a litigant's unfounded accusations, abusive tactics, or attempts to manipulate the system. To the contrary, judges have an affirmative duty to preside over cases unless disqualification is mandatory,” the justices wrote.
Litigants who engage in baseless, abusive attempts to obtain a change of judge should expect those attempts to fail and may face sanctions, they continued. But the justices decided not to impose any sanctions or restrictions on Zavodnik at this point, but will do so if necessary. He is also not allowed to petition for rehearing.