Trials & Truths

…About to Go Down in Flames

Keith Raniere’s bombastic lawsuit against Merrick Garland, the U.S. Attorney General – and several other federal officials – is about to get dismissed or resolved in the defendants’ favor. At least, that’s what I think is going to happen.

In filings that were recorded in the PACER system on August 1st, Denise Ann Faulk, the attorney representing the defendants in the lawsuit, documented two reasons why U.S. District Court Judge Raner C. Collins, the presiding judge in the case, should dismiss the case in its entirely – or grant summary judgment in favor of all the named defendants.

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Background Information

The lawsuit was filed on May 5, 2022 in the District Court for the U.S. District of Arizona. That venue was chosen because the sole plaintiff in the case, Keith Alan Raniere, is currently serving his 120-year prison sentence at the U.S. Penitentiary in Tucson, AZ (“USP Tucson”).

Besides U.S. Attorney Garland, the lawsuit also named the following additional defendants: Michael Carvajal, Director of the Federal Bureau of Prisons; Barbara VonBlankensee, the Warden at USP Tucson; and Lt. (Unknown First Name) Galleon. Importantly, all of the defendants were named “in their official capacities” rather than as individuals.

Raniere’s lawsuit asserted two claims against the defendants:

• Count I: Unlawful Frustration and Interference with First Amendment Access to the Courts; and
• Count II: Retaliation Based on Rights Protected Under the First Amendment.

According to the Complaint that was filed in the case, Raniere’s May 4th phone call with Joseph Tully, the attorney who is representing him with respect to his Rule 33 Motion in the U.S. District Court for the Eastern District of New York (“EDNY”) and his pending Direct Appeal in the U.S. Court of Appeals for the Second Circuit, “was apparently terminated prematurely and without warning.”

Shortly after the phone call was reportedly terminated, Raniere was allegedly instructed to go to Lt. Galleon’s office at USP Tucson. Once there, he was allegedly told that the previously approved list of individuals who could talk to him on the phone and/or visit him at the prison was “being scrubbed” – and that he would have to reapply to his Unit Manager to have anyone restored to that list.

Thereafter, according to the Complaint, Raniere allegedly was told that Suneel Chakravorty, who holds Raniere’s power-of-attorney, would likely not be restored to the list (Note: In the interim, Chakravorty has reportedly been designated as a Paralegal to Tully – and, in that capacity, is able to meet and talk with Raniere on a confidential basis whenever he needs to do so).

Also, according to the Complaint, the defendants threatened to cut off all of Raniere’s communications with his attorneys because one of them had filed a Rule 33 Motion in the EDNY on his behalf.

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Interim Filings & Rulings

Following the filing of the Complaint on May 5, 2022, there have been several other filings in the case. The most noteworthy of these are as follows:

• An Amended Complaint that was filed on May 6, 2022;
• A Motion for Preliminary Injunction that was filed on May 26, 2022;
• A Motion for a Temporary Restraining Order that was filed on June 7, 2022;  and
• An Order Denying the Request for Preliminary Motion – and Declaring the Motion for a Temporary Restraining Order as Moot – on June 17, 2022.

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Defendants’ Motion to Dismiss for Insufficient Service of Process – and for Summary Judgment on Exhaustion

In the most recent filings in the case, the attorney for the defendants documented that Raniere’s attorney, Stacy Scheff, made several errors in her attempt to properly serve the named defendants in the case.

Even though the defendants’ attorney notified Scheff of her errors and instructed her on how to correct them, she still has not done so (Note: In order to be in compliance with the applicable requirements set forth in Rule 4(i), Fed. R. Civ. P., all she had to do is send a copy of the First Amended Complaint (FAC) to each of the defendants via registered or certified mail).

In addition to the procedural errors allegedly made by Schiff, the defendants’ attorney also pointed out the biggest flaw in Raniere’s lawsuit: i.e., his failure to exhaust the “administrative remedies” that were available to him through the BOP’s Administrative Remedies Program before he filed the lawsuit.

Per the applicable provision of the Prison Litigation Reform Act, prisoners must exhaust all the administrative remedies that are available to them per the BOP’s Administrative Remedies program before they can file a lawsuit “with respect to prison conditions.”

Not only did Raniere not exhaust his administrative remedies before filing the original Complaint on May 5, 2022, he also admitted in the First Amended Complaint, which was filed the very next day, that he had not done so.

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Expected Outcome

Based on the most recent filings by the defendants’ attorney, it seems inevitable to me that Raniere’s lawsuit will be dismissed on procedural grounds – or that the court will issue a summary judgment in favor of the defendants.

While the former outcome would not preclude Raniere from filing a new lawsuit regarding the same issues after he properly exhausts his administrative remedies, the latter outcome would likely require him to file an appeal in order to try and overcome the summary judgment order.

All in all, it appears to me that this entire fiasco has been just another waste of time, money and effort – which has often been the case with Raniere’s legal maneuvers.

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