Opinion
Civil Action 16-cv-01977-PAB-NYW
08-03-2021
ALEXANDER GARCIA, Plaintiff, v. PHIL WAKEN, Adams County Sheriffs Sergeant, in his individual capacity, CHRISTOPHER LONG, Adams County Sheriffs Deputy, in his individual capacity, SCOTT DOW, Adams County Sheriffs Deputy, in his individual capacity, COOPER CRAMBLET, Adams County Sheriffs Deputy, in his individual capacity, CYNTHIA HILL, Adams County Sheriffs Deputy, in her individual capacity, KYLE SWING, Adams County Sheriffs Deputy, in his individual capacity, and ROBERT HANNAH, Adams County Sheriffs Sergeant, in his/her individual capacity., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang Magistrate Judge.
This matter comes before the court on Plaintiff Alexander Garcia (“Plaintiff” or “Mr. Garcia”)'s Response to Show Cause Order for [R]eview by District Court Judge [#77, filed July 30, 2021]. For the reasons set forth herein, the court respectfully RECOMMENDS that Plaintiff be precluded from filing additional papers in this case unless and until the presiding judge reopens this case.
BACKGROUND
The facts and procedural posture of this case have been set forth in this court's previous orders, see [#73], and will only be set forth here as relevant to the instant Recommendation. Plaintiff, through counsel, initiated this matter on August 3, 2016, and voluntarily dismissed his claims with prejudice on October 23, 2017. See [#1; #54]. In the years since, Plaintiff has 1 attempted to continue to file motions in this case. See [#56; #57; #58; #62; #67]. Specifically, Plaintiff has sought to raise professional misconduct grievances against his attorneys, see [#58; #67; #70], has sought copies of documents in this case, see [#56; #62], and has requested various other types of relief, such as appointment of counsel [#57] and attempting to, on his own motion, withdraw his counsel of record from this case. [#67].
This court has repeatedly denied Plaintiff's motions and has consistently advised Plaintiff that, because this civil action has been terminated, there is no longer an active case in which he may file motions for relief. [#60 at 1-2; #64 at 1; 69 at 1]. Moreover, the court has instructed Plaintiff numerous times that, insofar as he seeks to file misconduct claims against his attorneys, he must do so in a separate action rather than this closed case. [#60 at 1-2; #64 at 2; #69 at 2]. Finally, the court has repeatedly informed Plaintiff that, because his attorneys have not withdrawn from this case and are still his counsel of record, he is not permitted to file pro se motions in this case. [#60 at 1-2; #64 at 2; #69 at 2]. Most recently, on June 29, 2021, the court plainly informed Plaintiff that the court “cannot provide the relief Plaintiff seeks.” [#69 at 2].
Despite these numerous directives informing Plaintiff that his various motions were improper on multiple bases, Plaintiff filed two additional motions on July 7, 2021, seeking (1) judgment in his favor and against his counsel of record, see [#70], and (2) relief from judgment pursuant to Federal Rule of Civil Procedure 60, see [#71]. On July 13, 2021, the court struck both motions as frivolous, but nevertheless explained to Plaintiff that his motions for judgment in his favor and relief from judgment were without legal merit. [#73 at 4 n.1]. In addition, finding that Plaintiff has “continually ignored this court's directives and continues to file groundless, repetitive motions which require the court to expend its limited judicial resources 2 repeating its prior directives to Plaintiff, ” [id. at 3], the court ordered Plaintiff to show cause why this court should not recommend that he be precluded from filing additional papers in this action. See [id. at 4].
On July 30, 2021, Plaintiff responded to the Order to Show Cause. [#77]. In his response, Plaintiff states that his motions “have been filed with good cause and ha[ve] cited legal authority and precedents in all motions.” [Id. at ¶ 2]. He states that he has requested his attorneys to withdraw from this case, but that they have not done so, and seeks a court order requiring his counsel of record to withdraw. [Id. at ¶¶ 1, 3]. In addition, he states that, because this court ordered him to show cause why he should not be precluded from making additional filings in this case, “[b]y the court['s] own [admission] [there] are times when a plaintiff can file motions with the court when there is an attorney of record” and that “[i]neffective assistance of counsel is exactly one such situation.” [Id. at ¶ 5]. Finally, Plaintiff states that he is entitled to receive prejudgment interest that he never received, see [id. at ¶ 4], requests that the court permit him to “redress the court in the facts that [prejudgment] interest was never paid to the plaintiff and is mandatory by Colorado Revised Statutes, ” [id. at 2], and requests that his previous motions [#70; #71] not be stricken from the record. [#77 at 1].
LEGAL STANDARD
“Federal courts have the inherent power to regulate the activities of abusive litigants by imposing carefully tailored restrictions under appropriate circumstances.” Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Filing restrictions “are appropriate where the litigant's lengthy and abusive history is set forth; the court provides guidelines as to what the litigant may do to obtain its permission to file an action; and the litigant receives notice and an opportunity to 3 oppose the court's order before it is implemented.” Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007).
ANALYSIS
“[T]he right of access to the courts is neither absolute nor unconditional, and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (per curiam) (citation omitted). Here, the court finds that Plaintiff has not shown sufficient cause as to why this court should not recommend that he be precluded from making additional filings in this matter, unless and until the presiding judge re-opens this case.
First, the court respectfully disagrees with Plaintiff's assertion that his motions have been filed “with good cause” because he has cited legal authority within those motions. See [#77 at ¶ 2]. The court has repeatedly informed Plaintiff of the multiple bases demonstrating that Plaintiff's various motions are without merit. See [#60; #64; #69]. Instead of heeding this court's directives, Plaintiff has ignored them, choosing instead to file additional motions containing the same procedural and legal deficiencies previously identified by the court. See, e.g., [#62; #67]. For this reason, the court cannot conclude that Plaintiff's motions were filed “with good cause.”
Next, the court rejects Plaintiff's assertion that, by its order directing Plaintiff to show cause why he should not be precluding from future filings, this court held that certain situations require that a represented plaintiff file pro se motions. This court has repeatedly instructed Plaintiff that, because he is represented in this case, he cannot file pro se motions, see [#64; #69; #73], and the law on this issue is clear. See D.C.COLO.LAttyR 5(a)(5) (“Only an unrepresented 4 party . . . may appear in a matter before the court [or] sign and file a pleading or document”); see also Pittman v. Fox, 766 Fed.Appx. 705, 712 (10th Cir. 2019) (unpublished) (affirming district court's decision to strike pro se motion filed by represented party under D.C.COLO.LAttyR 5(a)(5)). This court's order permitting Plaintiff the opportunity to individually show cause why he should not be precluding from future filings-on the basis that he continues to ignore this court's directives concerning pro se motions-does not change the Local Rules or the court's prior admonitions or orders. And insofar as Plaintiff requests a court order requiring his attorneys to withdraw from this case, Plaintiff has provided no legal authority demonstrating that such a court order is proper or warranted. To the contrary, the court finds that no good cause exists for such a court order, as it appears evident that this would lead only to Plaintiff's continued filings of groundless motions.
Plaintiff cites Colorado Rule of Civil Procedure 121 for the proposition that “an attorney may withdraw from the case without leave from the court when all matters of the case are completed.” [#77 at ¶ 2]. The Colorado Rules of Civil Procedure are not applicable in this federal action. Moreover, even if they did apply, the rule cited by Plaintiff would not support Plaintiff's position. Colo. R. Civ. P. 121 § 1-1(3) provides that an attorney may withdraw from a completed case without notice to the court upon filing a notice of withdrawal, an action which Plaintiff's counsel have not taken.
Indeed, Plaintiff continues to imply in his response to the Order to Show Cause that he may raise ineffective assistance of counsel claims or attorney disciplinary grievances in this case, see [#77 at ¶ 5], despite this court repeatedly informing and emphasizing to Plaintiff that he cannot bring such claims or grievances in this action. Moreover, Plaintiff requests that this court reconsider its order striking Plaintiff's most recent motions, see [id. at 1], and continues to raise arguments concerning the propriety of his settlement in this case, see [id. at ¶¶ 4-5], despite this court's repeated explanations to Plaintiff that his motions challenging his settlement are without 5 merit. See, e.g., [#73 at 4 n.1]. This demonstrates to the court that Plaintiff will continue to ignore this court's directives and explanations concerning the merits of Plaintiff's motions and that, absent a court order precluding Plaintiff from making additional filings in this case, Plaintiff will continue to file groundless, repetitive motions that will continue to take up this court's limited judicial resources. See Nasuti v. Whole Foods Mkt., No. 19-cv-00509-RM-KMT, 2019 WL 1468395, at *1, n.3 (D. Colo. Apr. 3, 2019), aff'd, 783 Fed.Appx. 797 (10th Cir. 2019) (unpublished) (“[T]he court has limited judicial resources and should not have to expend them dealing with duplicative [motions].”).
For these reasons and upon review of the case law, the court finds that imposing filing restrictions on Plaintiff in this case is warranted. The Tenth Circuit has upheld filing restrictions on litigants when their “behavior amount[s] to a pattern of malicious, abusive, and frivolous litigation.” Demos v. Keating, 33 Fed.Appx. 918, 920 (10th Cir. 2002) (unpublished) (collecting cases). The court has, in this Recommendation and its previous Order to Show Cause [#73], recounted Plaintiff's pattern of frivolous, repetitive filings and continued disregard for the court's orders denying Plaintiff's motions, which behavior constitutes abusive and frivolous litigation. See Okon v. Comm'r, 26 F.3d 1025, 1027 (10th Cir. 1994) (“[W]hether the conduct of this litigant is abusive” may be demonstrated by “a history of repetitive and meritless claims, or the pursuit of numerous facially inappropriate motions in [the present] proceeding.”). Specifically, Plaintiff has filed seven motions in the last two-and-a-half years, including three within the last two months and four after this court advised Plaintiff that he cannot file pro se motions in this closed case. The court does not find it necessary to wait for Plaintiff to file additional motions-which Plaintiff implies that he will-to conclude that filing restrictions are 6 warranted. See Tso v. Murray, No. 17-cv-02523-PAB-STV, 2019 WL 4463285, at *2 (D. Colo. Sept. 18, 2019), aff'd, 822 Fed.Appx. 697 (10th Cir. 2020) (unpublished) (finding that there is no legal requirement that a litigant file a certain number of abusive actions before a court may impose filing restrictions and concluding that filing restrictions were warranted where the plaintiff was “ignoring the jurisdictional defect common to each of his cases and show[ed] no sign of abating his practice of filing new cases”); United States v. Coleman, 707 Fed.Appx. 563 (10th Cir. 2017) (unpublished) (affirming filing restrictions where the plaintiff had filed “six motions and two civil lawsuits”).
The court therefore recommends that Plaintiff be precluded from filing additional papers in this case, which has been closed for over three years, unless and until the presiding judge reopens the case, with the express directive that Plaintiff must file a separate case pursuant to the Prison Litigation Reform Act and the restrictions imposed by 28 U.S.C. § 1915 to the extent he seeks to raise attorney grievances against his counsel of record in this case. See Green v. Denning, No. 06-cv-3298-SAC, 2009 WL 484457, at *2 (D. Kan. Feb. 26, 2009) (observing that the controlling principle is that unrelated claims against different defendants belong in different suits). Finally, this court has given Plaintiff an opportunity to oppose these restrictions in ordering Plaintiff to show cause why this Recommendation should not issue, and Plaintiff will have an additional opportunity to object to this Recommendation before it is ruled on by the presiding judge. For all of these reasons, the court finds that filing restrictions in this case are warranted.
CONCLUSION
For these reasons, this court respectfully RECOMMENDS that: 7
(1) The presiding judge enter an order precluding Plaintiff from making additional filings in this case, unless and until the presiding judge re-opens this case.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Additionally, it is ORDERED that:
(1) A copy of this Recommendation, marked as legal mail, shall be sent to:
Alexander Garcia, #18-17354
Adams County Detention Facility (ACDF)
P.O. Box 5001
150 North 19th Avenue
Brighton, CO 80601
and
Case Manager for Alexander Garcia, #18-17354
Adams County Detention Facility (ACDF)
P.O. Box 50018
150 North 19th Avenue
Brighton, CO 806019