United States District Court, D. Rhode Island
Keven A. McKenna
David Curtin, et al.
Melissa E. Darigan, Esq. Michael W. Field, Esq. Keven A.
McKenna, Esq. Rebecca Tedford Partington, Esq. David J.
Pellegrino, Esq. Santiago H. Posas, Esq.
McCafferty United States District Judge.
A. McKenna, proceeding pro se, brings claims against
twenty-two defendants in their individual capacities who are
Rhode Island state court judges, members of the Disciplinary
Board of the Supreme Court of Rhode Island, Chief and
Assistant Disciplinary Counsel, a Supreme Court Clerk, Chief
Judge of the United States District Court for the District of
Rhode Island, and the Director of the Rhode Island Department
of Labor and Training. The claims challenge the suspension of
McKenna from the practice of law and seek a stay of an order
requiring him to make workers' compensation payments to a
pending before the court are the following motions: (1)
McKenna's motion requesting that the court restore his
license to practice law (doc. no. 16); (2) defendants'
motion to dismiss (doc. no. 22); (3) defendants' motion
for a permanent injunction to bar further suits against them
by McKenna (doc. no. 30); (4) McKenna's motion to amend his
complaint (doc. no. 31); (5) McKenna's motion for
sanctions to be imposed against defendants based on their
motions to dismiss and for an injunction (doc. no. 39); and
(6) McKenna's motion for reinstatement to the Rhode
Island bar (doc. no. 40).
was admitted to the practice of law in Rhode Island in 1973.
In 2009, an employee of McKenna's law firm filed a claim
for workers' compensation benefits, alleging a
Workers' Compensation Court ordered McKenna to make
workers' compensation payments to the employee. Over the
next few years, McKenna brought several lawsuits in an
attempt to avoid paying the employee, and eventually filed
for bankruptcy.See In re McKenna, 110 A.3d 1126,
1130-36 (R.I. 2015) (providing background of the workers'
compensation and bankruptcy proceedings); Stone v.
Geremia, No. 11-631, 2013 WL 1000712, at *1-2 (D.R.I.
Mar. 13, 2013) (same); see also McKenna v. Powell,
No. 10-017ML, 2010 WL 2474037 at *1 (D.R.I. Apr. 28, 2010)
(providing background of workers' compensation
2012, ethical charges were brought against McKenna in Rhode
Island, which led to an investigation by the Rhode Island
Supreme Court Disciplinary Board. The charges of ethical
violations against McKenna arose from McKenna's
representations and disclosures during the workers'
compensation proceeding and McKenna's subsequent
bankruptcy proceedings. See In re McKenna, 110 A.3d
brought several cases in this court in which he
unsuccessfully challenged the Disciplinary Board proceedings,
which were then ongoing. See McKenna v. DeSisto,
14-cv-260, 2014 WL 3784872 (D.R.I. July 31, 2014);
McKenna v. Gershkoff, 12-cv-904-JNL-LM, 2013 WL
3364368 (D.R.I. July 3, 2013); McKenna v. DeSisto,
11-cv-602-SJM-LM, 2012 WL 4486268 (D.R.I. Sept. 27, 2012).
The court dismissed each case based on Younger
Disciplinary Board recommended that McKenna's license to
practice law be suspended. McKenna's license to practice
law was suspended for one year beginning on March 29, 2015.
In re McKenna, 110 A.3d at 1151.
16, 2016, the Rhode Island Supreme Court denied McKenna's
petition for reinstatement. The court noted “that there
are several disciplinary matters currently pending before the
Supreme Court Disciplinary Board regarding conduct of the
petitioner that occurred both before and after our order of
suspension.” In re McKenna, 140 A.3d 158, 158
(R.I. 2016). The court also noted that “on March 6,
2015, a justice of the Superior Court issued sanctions
against the petitioner pursuant to Rule 11 of the Superior
Court Rules of Civil Procedure in a number of different cases
based, in part, upon findings that the petitioner made
misrepresentations to the court.” Id. at
brings this suit, alleging several claims against various
defendants arising out of his suspension from the practice of
law and the order requiring him to make workers'
compensation payments to his former employee. The parties
have filed several motions.
Motion for Sanctions
moves for sanctions (doc. no. 39) against defendants and the
Rhode Island Attorney General's office, which is
representing defendants, under Federal Rule of Civil
Procedure 11. As grounds for sanctions, McKenna cites their
“failure on July 6, 2014 to withdraw their motion for a
permanent injunction and attachments and, the exhibits
attached to their first motion to dismiss, within twenty-one
(21) days or be appropriately sanctioned.” He argues
that the Office of the Attorney General provided the exhibits
in violation of Rule 11(b).
Rule 11(b), “an attorney or unrepresented party”
certifies to the court that any pleading, motion, or other
paper submitted to the court, among other things, is not
being presented for an improper purpose and that the factual
contentions have or will have evidentiary support. If the
court determines that Rule 11(b) has been violated, it may
impose an appropriate sanction. Fed.R.Civ.P. 11(c)(1). A
party moving for sanctions, however, “must describe the
specific conduct that allegedly violates Rule
11(b).” Fed.R.Civ.P. 11(c)(2).
finds objectionable certain exhibits filed with
defendants' motion to dismiss (document no. 22) or with
the motion for an injunction (document no. 30). However,
McKenna does not identify those exhibits for the court.
McKenna states generally that “[t]he Judicial
Defendants and the Attorney General acted in bad faith by
attempting to supplement their Rule 12(b)(1) and Rule
12(b)(6) motions with ‘factual exhibits of questionable
veracity and characterizations, which were not formed after a
reasonable inquiry.'” Doc. no. 39 at 1.
included four exhibits with their motion to dismiss: (1) the
trustee's final account and distribution report in
McKenna's bankruptcy proceeding; (2) McKenna's
petition to the Rhode Island Supreme Court for reinstatement
dated March 18, 2016; (3) the Rhode Island Superior Court
decision in a consolidated case in which sanctions were
imposed on McKenna for misrepresentations made in the course
of representing parties in other cases; and (4) the petition
of David Curtin as Chief Disciplinary Counsel for
disciplinary action against McKenna. See doc. nos. 22-1 -
22-4. None of those documents violate Rule 11(b).
included an appendix filed with their motion for a permanent
injunction. See doc. no. 30-1. The appendix provides copies
of orders in thirty other cases and proceedings involving
McKenna. Defendants explain in their motion that they provide
copies of these cases to show McKenna's litigiousness in
support of their request for an injunction to prevent McKenna
from filing new causes of action against them, the State of
Rhode Island, or Rhode Island departments and agencies
without first obtaining leave of this court.
does not explain how the appendix or any of the attached
cases violate Rule 11(b). He refers to the decisions from
this court, McKenna, 2014 WL 3784872; McKenna, 2013
WL 3364368; McKenna, 2012 WL 4486268, without
providing citations, and suggests that defendants provided
the cases in the appendix to mislead the court in this case.
is mistaken. The court is not misled by any of the cases
provided in the appendix to the motion for an injunction, nor
were they provided for that purpose. Without any explanation
about the other exhibits he finds objectionable, McKenna has
not carried his burden under Rule 11(c). Therefore, the
motion for sanctions (doc. no. 39) is denied.
Motion to Amend
seeks leave to amend his complaint to delete certain claims
and defendants and to add a new count and a new defendant. He
proposes to delete the claims alleged in Counts V, VI, VII,
and VIII of his original complaint and to dismiss all claims
against Judge William Smith and Scott Jensen, the Director of
the Rhode Island Department of Labor and Training. McKenna
also proposes to add a claim, as Count VII of his proposed
amended complaint, against the Rhode Island Attorney General,
Peter Killmartin. Defendants object to the motion to amend on
the grounds that the court lacks jurisdiction over the claims
in the proposed amended complaint and that the proposed
amendments are futile.
Standard of Review
Federal Rule of Civil Procedure 15(a), leave to amend will be
freely given when justice so requires. Leave to amend may be
denied, however, for reasons “such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [and] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182
(1962). At this stage of a case, futility is assessed under
the standard used for motions to dismiss under Federal Rule
of Civil Procedure 12(b)(6). Hatch v. Dep't for
Children, Youth, & Their Families, 274 F.3d 12, 19
(1st Cir. 2001).
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (citation omitted). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Because McKenna is proceeding pro se, the court is
obliged to construe his complaint liberally. See Erikson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal
citations omitted) (“[A] pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.”).
proposed amended complaint adds a single claim: Count VII. It
also removes several other claims from the original
complaint, and re-numbers various counts asserted in his
VII of the proposed amended complaint is titled:
“Declare Conflict of Interest for Attorney General to
Defend the Judiciary for Its Legislative Acts and Executive
Acts and Violation of Separation of Powers.” It is
asserted against the Attorney General of Rhode Island.
argues that the Attorney General cannot represent the
defendants who are judges and justices because the Attorney
General is part of the executive branch of the Rhode Island
government while the judges are part of the judicial branch.
He further argues that the Attorney General is precluded from
representing those defendants because McKenna is not suing
the judges and justices for performing judicial functions but
instead “for utilizing the Powers of the General
Assembly and the Powers of the Governor.”
contend that Count VII fails to state a claim. The court
agrees. The issue of disqualification of the Attorney
General's office from representing the state judges and
justices was directly addressed and decided against McKenna
in another case. McKenna v. Williams, 874 A.2d 217,
223 n.4 (R.I. 2005). In addition, to the extent McKenna
intends to seek disqualification of the Attorney
General's office, that matter might be raised by motion,
if valid grounds existed to support it, but an issue of
disqualification of counsel does not state a cause of action
on which relief may be granted. See, e.g., Jackson v.
Norman, 264 F. App'x 17, 21 (1st Cir. 2008);
Messere v. Clarke, Nos. 11-12166-MLW, 11-11705-MLW,
2014 WL 2865803, at *3 (D. Mass. June 23, 2014); Aldrich
v. Young, No. 13-10466-DPW, 2013 WL 3802436, at *3 (D.
Mass. July 18, 2013); Dolan v. Tavares, No.
10-10249-PBS, 2010 WL 5281968, at *1 (D. Mass. Dec. 16,
Count VII in the proposed amended complaint is futile and
will not be allowed.
Counts I through VI
motion to amend, McKenna represents that the only new claim
is Count VII and that he deleted Counts V, VI, VII, and VIII,
as they appeared in the original complaint, “to focus
upon Separation of Powers violations” in the proposed
amended complaint. McKenna does not discuss changes made to
Counts I through VI from the claims in his original complaint
to the corresponding claims in his proposed amended ...