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Censke v. United States

United States District Court, N.D. Illinois, Eastern Division

March 19, 2014


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[Copyrighted Material Omitted]

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Thomas A. Censke, Plaintiff, Pro se, Terre Haute, IN.

For United States of America, Defendant: Gina Elizabeth Brock, Katherine Ellen Beaumont, Kurt N. Lindland, Zachary David Clopton, United States Attorney's Office (NDIL), Chicago, IL.

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Thomas Censke sued the United States under the Federal Tort Claims Act, alleging that he was the victim of an assault and battery by guards while he was incarcerated at the Metropolitan Correctional Center (" MCC" ) in Chicago.[1] The case proceeded to trial in July 2013, with Mr. Censke proudly announcing that he was " a showman," and saying: " if I were to be my usual showman, I would say like Bugs Bunny, please, your Honor, on with the show." (Tr. 12, 23). And so began a two-day bench trial featuring Mr. Censke and his elaborate tale spun for the occasion.



Mr. Censke was convicted of and is currently serving time for mailing threatening communications to four individuals associated with one of his previous civil suits, Censke v. Planned Parenthood, No. 2:04-cv-301, (W.D. Mich. 2005), including a county clerk, a police officer, and two attorneys. United States v. Censke, 08-CR-19 (W.D. Mich. 2008); Superceding Indictment at Dkt. 37, Judgment at Dkt. 231; Defendant. Ex. 11 at 559; United States v. Censke, 534 F.App'x 382 (6th Cir. 2013), cert. denied, 134 S.Ct. 807, 187 L.Ed.2d 611 (2013). Mr. Censke has a previous felony conviction for aggravated stalking of one of these individuals, attorney Joe Lavey. Defendant. Ex. 11 at 566, 573. Many of his civil suits have been found frivolous and malicious. Censke v. Smith, 2007 WL 2594539, 2 (W.D.Mich. 2007).

During his criminal trial, Mr. Censke moved for a psychological evaluation, and the District Court for the Western District of Michigan ordered him to undergo one pursuant to 18 U.S.C. § 4241. Pl. Ex. 7 at 29; Trial Transcript (Tr. 456). To that end, Mr. Censke was transferred to the MCC on June 16, 2008. Pl. Ex. 18, at 51. For Mr. Censke -- or " Censke" (as he referred to himself in closing argument) -- this was a ruse, or as he put it " a good opportunity to get away from Michigan and have a brief psych eval and essentially take a vacation in prison, I'll be honest with you. I've had two in the state and didn't need it." (Tr. 456).

It is worth noting that Mr. Censke, who appeared pro se, is not a novice in the world of litigation. He is, if not a professional litigant, an experienced and serious hobbyist. Indeed, a Westlaw search reveals

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21 separate orders by the United States Supreme Court in Mr. Censke's cases. Some of the Court's orders denied certiorari ; others denied requests for permission to appear in forma pauperis. ; others both simultaneously. For almost every order, there is a corresponding order denying rehearing of whatever order the Court had already issued against Mr. Censke. In 2008, the Court found that Mr. Censke had repeatedly abused the Court's process, and the Clerk was directed not to accept any further petitions in non-criminal matters from Mr. Censke unless the docketing fee was paid and the petition submitted in compliance with the Court's rules. Censke v. Department of Justice, 553 U.S. 1016, 128 S.Ct. 2097, 170 L.Ed.2d 815 (2008).

Westlaw also reflects at least 27 opinions by lower courts in Mr. Censke's cases. See, e.g. Censke v. County of Marquette, 2013 WL 4499265 (W.D.Mich 2013)(proceeding pro se with ADA claim against Marquette County Jail); United States v. Censke, 449 F.App'x 456, 459 (6th Cir. 2011)(proceeding pro se in criminal trial with stand-by appointed counsel); Censke v. County of Marquette, 2011 WL 3156280 (W.D.Mich. 2011))(proceeding pro se with 42 U.S.C. § 1983 claim against Marquette County Jail); Napier v. Doe, 2010 WL 201209, *1 n.2 (E.D.Mich. 2010)(preparing legal documents for a fellow inmate); Censke v. County of Chippewa, 2009 WL 1531027 (W.D.Mich. 2009)(proceeding pro se with 42 U.S.C. § 1983 claim against Chippewa County and the County Sheriff); Censke v. Ekdahl, 2009 WL 1393320 (W.D.Mich. 2009)(proceeding pro se with 42 U.S.C. § 1983 claims against multiple county employees and the State of Michigan); Censke v. Birkett, 2009 WL 159160 (E.D.Mich. 2009)(proceeding pro se with habeas corpus petition); Censke v. Lauren, 2009 WL 80969, 1 (W.D.Mich. 2009)(proceeding pro se with 42 U.S.C. § 1983 claims against multiple county and State of Michigan employees); Censke v. United States, 2008 WL 4757321 (W.D.Mich. 2008); Censke v. Tribley, 2008 WL 2139614 (W.D.Mich. 2008)(" Plaintiff has been an active litigant in the federal courts in Michigan." (collecting cases)); Censke v. Calhoun County Jail, 2007 WL 2323594 (W.D.Mich. 2007)(noting that Mr. Censke had filed at least 18 civil cases in the district in just 4 years).

Given this background, it is not surprising that Mr. Censke helps other inmates prepare their own lawsuits. Napier v. Doe, 2010 WL 201209, 1 (E.D.Mich. 2010).


Before turning to Mr. Censke's substantive claims, it is important to make mention of Mr. Censke's skill in representing himself. The Orders denying Mr. Censke's Motion for Appointment of Counsel pointed out that his pre-trial performance, coupled with his extensive background in litigation, demonstrated a high degree of skill and an ability to represent himself in what was an uncomplicated case, which involved an oath-swearing contest between him and those he accused of wrongdoing. [Dkt. 158, 192].[3] At the beginning of the trial, I explained why I thought Mr. Censke was more than capable of trying the case. (Tr. 3). Mr. Censke's performance at the trial confirmed beyond any doubt the accuracy of

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my pretrial assessments. See, e.g., my comments at Tr. 295-96. His performance through the latter half of the trial at least equaled, if it did not exceed, the first half. In short, if Mr. Censke was not sufficiently skilled to handle this case, then no unrepresented non-lawyer could be allowed to represent himself in any civil case. And that is not the law.


Mr. Censke's Battery Claim

At the end of his opening statement, having already announced that he fancies himself a " showman," (Tr. 12),[4] Mr. Censke, said:: " if I were to be my usual showman, I would say like Bugs Bunny, please, your Honor, on with the show." (Tr. 23). And so, with Bugs Bunny as his muse, Mr. Censke began a performance that had no more substance or truth to it than the pretext he employed so that he could get a " vacation" from the prison in Michigan. Here are the facts.

At the MCC on June 27, 2008, Mr. Censke refused to participate in unit sanitation duties. Officer Aaron Jackson handed Mr. Censke a broom, and this irritated Mr. Censke. (Tr. 55-56); 246:12-15. Officer Jackson testified that Mr. Censke insolently threw the broom down. (Tr. 56, 61). Mr. Censke characterized his actions as simply dropping the broom. (Tr. 61, 223). Officer Jackson wrote out an incident report indicating that Mr. Censke had refused to obey an order and being insolent to a staff member. 55-56, 61; Defendant. Ex. 12 at U.S. 444. Mr. Censke testified that, as a pretrial detainee, he was not required to perform sanitation work. (Tr. 245, 247). But, he had signed a work waiver form stating " would like to volunteer for a work assignment which entails more than housekeeping tasks." Defendant. Ex. 23. For Mr. Censke, that form meant he was open to volunteering for any specific work assignment, not that he was volunteering for any and all such assignments in advance. (Tr. 247-48).

Mr. Censke was then transferred to the Special Housing Unit (SHU) for administrative detention pending resolution of his disciplinary infraction. (Tr. 64; Ex. 12 at U.S. 444). Internal security officer Greg Bynum reported to Unit 13 to transport Mr. Censke to the SHU. (Tr. 64). Inmates are transported between floors by elevator, and internal security is responsible for all inmate movement. (Tr. 418). The inmates are normally handcuffed during transport to the SHU. (Tr. 419). Officer Jackson testified that it is policy to handcuff them when they are being transported for disciplinary reasons, as Mr. Censke was. (Tr. 68). Officer Bynum handcuffed Mr. Censke, behind his back, in an area adjacent to the elevator on Unit 13 and escorted him to the SHU. (Tr. 64, 223, 226, 449).

Mr. Censke testified that Officer Bynum grabbed his wrist and yanked it all the way around forcefully and did not double lock the cuffs which allowed them to close tighter and tighter. (Tr. 223, 343). Mr. Censke claimed that Officer Bynum did so deliberately and with sadistic intent. (Tr. 442). Mr. Censke did not suggest any motive for Officer ...

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