UNITED STATES COURT OF APPEALS
Filed 2/27/96
TENTH CIRCUIT
RICK D. PETRICK,
Plaintiff - Appellant, Nos. 95-6238
95-6273
v. (D.C. No. CIV-95-567-A)
STATE OF OKLAHOMA; ALLEN (W.D. Okla.)
MCCALL; CAROL M. HANSEN;
CARL B. JONES; and JAMES
GARRETT,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before PORFILIO, McKAY, and KELLY, Circuit Judges.
After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiff Rick D. Petrick, proceeding pro se and in forma pauperis, appeals from
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.
the dismissal of his 42 U.S.C. § 1983 lawsuit. He also appeals from the district court’s
imposition of filing restrictions. In his complaint, Mr. Petrick alleged that Defendants,
various state court judges, denied him access to the courts in a prior state civil suit. The
district court dismissed the action under 28 U.S.C. § 1915(d) as frivolous. It then
imposed filing restrictions on Plaintiff. For the reasons that follow, we affirm the
dismissal of Mr. Petrick’s action as frivolous but reverse the decision to impose filing
restrictions.
Mr. Petrick first contends that Defendants unconstitutionally denied him access to
the courts in a prior state civil suit. A review of the pleadings indicates that Mr. Petrick
is simply unhappy with the result of his prior case and seeks a way to collaterally attack
the state courts’ rulings. He cites no cases in support of his claim and has completely
failed to articulate a legal theory as to why he is entitled to relief. Thus, we affirm for
the reasons given by the district court, including its adoption of the magistrate judge’s
findings and recommendation.
The district court also imposed filing restrictions on Mr. Petrick. It based its
decision on the magistrate judge’s finding that Mr. Petrick had demonstrated a pattern of
filing abusive and frivolous pro se complaints. Generally, federal courts do have the
inherent power to impose filing restrictions on litigants with a history of abusive or
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frivolous complaints. Tripati v. Beaman, 878 F.2d 351, 352-53 (10th Cir. 1989). The
exercise of this power should be limited, however, to well-documented and extreme
cases. Phillips v. Carey, 638 F.2d 207, 209 (10th Cir.), cert. denied, 450 U.S. 985
(1981). Additionally, the litigant’s history must indicate that his filings are
predominantly malicious, frivolous, or otherwise abusive. “Litigiousness alone will not
support an injunction restricting filing activities.” Tripati, 878 F.2d at 353.
Here, the magistrate judge documented Mr. Petrick’s litigation history. Aside
from this case, Mr. Petrick has filed five cases. Two were dismissed on summary
judgment, one was dismissed without prejudice on venue grounds, one is still pending,
and one was dismissed as frivolous. This does not amount to a pattern of malicious,
abusive, or frivolous filings. At best, this history indicates that Mr. Petrick is an overly
litigious person. This is not enough, however, to support filing restrictions.
Although there is no set number of filings at which point restrictions become
appropriate, we note that we typically have imposed or upheld restrictions in cases
involving a far greater number of abusive filings. See, e.g., DePineda v. Hemphill, 34
F.3d 946, 947 (10th Cir. 1994) (eleven pro se appeals); Werner v. Utah, 32 F.3d 1446,
1447-48 (10th Cir. 1994) (over fifty filings in district court and twenty-two appeals); In
re Winslow, 17 F.3d 314, 315 (10th Cir. 1994) (seventeen appeals); Ketchum v. Cruz,
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961 F.2d 916, 918 (10th Cir. 1992) (fifteen lawsuits, seven of which were filed in a
three-week period). Mr. Petrick’s filings have not reached the level of egregiousness
that typically warrants restrictions. We warn Mr. Petrick, however, that he is not far
from reaching the level at which we will uphold sanctions. Any future frivolous
lawsuits may well give the district court or this court cause to impose filing restrictions.
We GRANT Mr. Petrick’s Motion for Leave to Proceed on Appeal Without
Prepayment of Cost or Fees and AFFIRM the district court’s dismissal of the action.
We REVERSE, however, the district court’s imposition of filing restrictions.
Entered for the Court
Monroe G. McKay
Circuit Judge
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