THE COURT: And then you filed it representing that it accurately reflected the green card that had been filled out. MR. KIMBERLIN: No, no, no, I filed it and accurately said -- it accurately reflected what I told the post office to do and that's what it is. You know, like I said I'm a pro se litigant and -- THE COURT: Don't even use that with me. MR. KIMBERLIN: Okay, okay -- THE COURT: You know it's one thing to say I'm pro se so I don't understand rules or I don't understand how to get something in and the rules of evidence and another thing to alter something and file it....
, TR 4/9/14, pp 21-23 (emphasis added)].
DISCUSSION I. Mr. Kimberlin's statements show a pattern of misconduct that undermines his defense of inadvertent pro se mistake, and supports dismissal and/or a significant monetary sanction.
After first ignoring the allegations regarding the Twitchy summons, ECF 67, Mr. Kimberlin admitted forging it but offered this Court various excuses, including his pro-se status. ECF 102 Response. But as his comments to the state court show, Mr. Kimberlin's falsification of the summons is part of a pattern of similar litigation misconduct that vitiates the defense he has proffered here. In the state court, as in this Court, Mr. Kimberlin when caught in misconduct sought refuge behind his pro-se status.
, TR 4/9/14, pp. 14, 22;
ECF 102 Response, pp. 1-2. In both courts, he claimed his action was necessitated by a public employee's improbable neglect of his or her routine duties.
, TR 4/9/14, pp. 21-22 (postal clerk failed to honor his request for restricted delivery); ECF 102 Response, pp. 1-2 (deputy clerk of this Court failed to issue Twitchy summons). In both courts he assumed a chastened air and said he had learned his lesson
but only after a defendant was forced to expend resources exposing his conduct, and extracting an admission of wrongdoing.
, TR 4/9/14, pp. 22, 25 ("I understand"); ECF 102 Response, pp. 1-2 (private session with Clerk for summons
Case 8:13-cv-03059-PWG Document 124 Filed 04/28/14 Page 3 of 5