United States District Court, D. Maine
ROY A. DAY, Plaintiff
STATE OF MAINE, et al., Defendants.
ORDER ON MOTION TO LIFT STAY AND MOTION FOR CLERK TO
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
litigant files his third lawsuit in the United States
District Court for the District of Maine against a Justice of
the Maine Supreme Judicial Court, the Maine Supreme Judicial
Court, the state of Maine, two individuals, their insurance
company, an attorney who represented the insurance company in
a prior dismissed lawsuit, and his own insurer, alleging
claims arising out of a 2016 car crash. The Court reviews his
suit under 28 U.S.C. § 1915(e)(2)(B)(i) and (iii), and
after concluding that the action is frivolous or seeks
monetary relief against defendants immune from such relief,
dismisses it. Three of the defendants, the state of Maine,
the Maine Supreme Judicial Court, and the Justice of the
Maine Supreme Judicial Court, are immune from suit; three
others of the defendants, the two individuals and their
insurance company, are protected by the doctrine of res
judicata; the seventh, the attorney who represented the
individual's insurance company, is not a state actor
subject to liability under 42 U.S.C. § 1983; and the
eighth, the litigant's insurer is also not a state actor.
Additionally, to the extent that the litigant brings state
law claims against his insurer, after the dismissal of his
civil rights claims, the Court is without supplemental
jurisdiction to hear those state law claims and venue in the
District of Maine is improper. Now that the plaintiff has
filed three unsuccessful lawsuits in this District and one
unsuccessful lawsuit in the state of Maine court system, the
Court asks the plaintiff to consider carefully before filing
another lawsuit because filing restrictions may be in the
offing under Cok v. Family Court of Rhode Island,
985 F.2d 32 (1st Cir. 1993).
The 2016 Federal Lawsuit
April 29, 2016, Lorna R. Grey was involved in a motor vehicle
accident with Roy A. Day's motor vehicle in the parking
lot of the Hudson Library in the town of Hudson, county of
Pasco, state of Florida. See Day v. Grey,
2:16-cv-275-JAW, Compl., Attach. 2, Florida Traffic
Crash Report (Apr. 29, 2016) (ECF No. 1). After the accident
on June 3, 2016, Mr. Day filed a lawsuit against Lorna R.
Grey, the driver; Kenneth Grey, her husband and a passenger
in the Grey vehicle; GEICO General Insurance Company (GEICO),
the Greys' automobile insurer; and 21st
Century Centennial Insurance Company (21st
Century), Mr. Day's automobile insurer. Day v.
Grey, 2:16-cv-275-JAW, Compl. (ECF No. 1). On
March 29, 2017, the Magistrate Judge recommended that the
Court dismiss Mr. Day's Complaint without prejudice
because he failed or refused to provide the Clerk of Court
with the addresses for two of the Defendants in that case.
Recommended Dismissal (ECF No. 23). Mr. Day objected
to the recommended dismissal on April 4, 2017, Pl.'s
Obj. to the Recommended Dismissal Order & Mot.
to Vacate the March 29, 2017 “Thinly Disguised
Final-Default Order” (ECF No. 24), and on July 28,
2017, the Court affirmed the Magistrate Judge's dismissal
without prejudice. Order on Mot. to Stay and Affirming
Dismissal of Compl. (ECF No. 27). Mr. Day appealed that
dismissal to the Court of Appeals for the First Circuit,
Pl.-Appellant's Notice of Appeal (ECF No. 29)
and on December 4, 2017, the First Circuit Court of Appeals
affirmed the dismissal. J. (ECF No. 36). On December
27, 2017, the First Circuit issued its mandate.
Mandate (ECF No. 37).
The 2017 Federal Lawsuit
31, 2017, while his appeal of his 2016 lawsuit was pending,
Mr. Day filed a second lawsuit in this Court. Day v.
Grey, 2:17-cv-00286-JAW, Compl. (ECF No. 1).
This 2017 lawsuit named the same defendants as the first and
was based essentially on the same allegations. Id.
On September 5, 2017, the Magistrate Judge stayed this case
while Mr. Day's appeal of the dismissal of his 2016
lawsuit was pending in the First Circuit Court of Appeals.
Order Staying Case (ECF No. 12). After the First
Circuit issued its judgment and mandate affirming the
dismissal of the 2016 lawsuit, the Magistrate Judge issued a
report and recommended decision on February 8, 2018, in which
he granted Mr. Day's motion for in forma pauperis status
and recommended that Mr. Day be allowed to proceed with
service of the Complaint upon each Defendant. Order on
Mots. for In Forma Pauperis Status and Serv. of Process and
Recommended Decision on 28 U.S.C. § 1915(e)(2)
Review (ECF No. 14). On February 26, 2018, the Court
affirmed the Magistrate Judge's recommended decision,
allowing Mr. Day's lawsuit to proceed against all four
Defendants. Order Affirming the Recommended Decision of
the Magistrate Judge (ECF No. 16).
1, 2018, 21st Century, Mot. of Def.,
21st Century Centennial Ins. Co., to Dismiss
Pl.'s Compl (ECF No. 30) (21st
Century Mot. to Dismiss), and GEICO, Lorna Grey and
Kenneth Grey moved to dismiss Mr. Day's Complaint.
Defs. Lorna Grey, Kenneth Grey, and GEICO General Ins.
Co.'s Mot. to Dismiss Pl.'s Compl. (ECF No. 32)
(Grey/GEICO Mot. to Dismiss). On June 15, 2018, Mr.
Day filed a motion for summary judgment against Defendants
Lorna Grey, Kenneth Grey and GEICO. Pl.'s Mot. for
Summ. J. against Def. Lorna R. Grey, Def. Kenneth Grey, Def.
GEICO General Ins. Co. (Counts One, Two Three, Four)
(ECF No. 40). The Grey/GEICO motion to dismiss was premised
on the argument that Mr. Day had already unsuccessfully
litigated this same claim in state of Maine court. The Court
turns to that litigation.
The 2016 State of Maine Lawsuit
the Greys and GEICO moved to dismiss Mr. Day's Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), they
attached evidence of a lawsuit Mr. Day filed in Maine state
court that the state court had dismissed with prejudice. On
November 7, 2016, Roy A. Day, proceeding pro se, filed suit
against Lorna and Kenneth Grey, GEICO General Insurance
Company, and 21st Century Centennial Insurance
Company in Cumberland County Superior Court. Mot. to
Dismiss, Attach 2, Ex. 1 at 1 (ECF No. 32)
(Compl. in State Action). In his state court
Complaint, Mr. Day alleged “negligence (with an overlay
of fraud), ” and claimed that he suffered damages from
a motor vehicle accident involving the Greys that
“arose out of a vehicle accident which occurred on
April 29, 2016, in Pasco County, Florida, ” that the
accident took place “in the Hudson Library parking lot,
” and that the vehicles involved were his “2015
Chevrolet Spark” and the Greys' motor vehicle.
Id. ¶¶ 1-8. In his state court Complaint,
Mr. Day alleged that one of the Greys “was driving a
vehicle in a willful, intentional, malicious, and
‘cunning, deceptive, and misleading' (fraudulent)
conduct at a high rate of speed . . . with a ‘fit of
rage,' to willfully, intentionally, and maliciously cause
damage to ‘specific vehicles' as a
‘target.'” Id. ¶ 7. He also
alleged that 21st Century insured his motor
vehicle and that GEICO insured the Greys' motor vehicle.
Id. ¶¶ 1, 2. On June 2, 2017, Lorna Grey,
Kenneth Grey, and GEICO filed a motion to dismiss Mr.
Day's state action. Id., Attach. 3, Ex.
2 (ECF No. 32) (Mot. to Dismiss in State
11, 2017,  then-Superior Court Justice Lance Walker
granted the Defendants' motion and ordered “that
all of the Plaintiff's claims as against Defendants Lorna
Grey, Kenneth Grey, and GEICO General Insurance Company are
Dismissed with Prejudice.” Id., Attach 4,
Ex. 3 (ECF No. 32) (Order in State
Action).On March 15, 2018, the Maine Supreme
Judicial Court affirmed the judgments against Mr. Day.
Day v. Grey, Law Court Docket No. Mem. 18-18 (Mar.
The 2017 Federal Lawsuit (Cont.)
this background, on January 31, 2019, the Court granted the
Grey/GEICO motion to dismiss, concluding that his 2017
federal lawsuit against the Greys and GEICO was barred by the
doctrine of res judicata. Order Granting Mots. to
Dismiss at 1 (ECF No. 76). The Court also granted
21st Century's motion to dismiss because there
was no legal basis for Mr. Day to proceed against
21st Century on either the breach of contract or
fraud claims. Id. The Court dismissed as moot Mr.
Day's motion for summary judgment. Id. at 5 n.4.
On January 31, 2019, Mr. Day appealed this judgment to the
Court of Appeals for the First Circuit,
Pl.-Appellant's Notice of Appeal (ECF No. 78),
and on October 28, 2019, the First Circuit affirmed the
Court's January 31, 2019, order, dismissing the Day
lawsuit. J. (ECF No. 86). On December 12, 2019, the
Court received the First Circuit's mandate.
Mandate (ECF No. 87).
The 2018 ...