FILED
United States Court of Appeals
Tenth Circuit
July 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAVID E. HENDERSON,
Plaintiff-Appellant,
v. Nos. 10-2056; 10-2118
(D.C. Nos. 2:10-CV-00157-MCA-
BARACK HUSSEIN OBAMA, LAM; 2:10-CV-00252-MV-CG)
Commander in Chief, President of the (D. N.M.)
United States,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
On February 23, 2010, David E. Henderson sued the President of the
United States alleging, as far as the district court was able to discern from Mr.
Henderson’s nearly illegible complaint, “dereliction of . . . duties” under the
Federal Tort Claims Act. In a thorough sixteen-page order, the district court
denied Mr. Henderson’s request to proceed in forma pauperis, concluding that
*
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)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. Henderson had failed to demonstrate an inability to pay the filing fees and
that his complaint failed to state a claim on which relief could be granted. See 28
U.S.C. § 1915(e)(2)(A) & (B). Accordingly, the district court dismissed the case
with prejudice. D. Ct. Order of Mar. 9, 2010. The district court also ordered Mr.
Henderson to show cause why it should not restrict his ability to file future pro se
pleadings with the court, see Evans-Carmichael v. United States, 343 F. App’x
294, 295-96 (10th Cir. 2009) (unpublished) (citing Tripati v. Beaman, 878 F.2d
351, 353-54 (10th Cir. 1989) (per curiam)), and, when Mr. Henderson’s response
failed to show sufficient cause, the court imposed such restrictions. D. Ct. Order
of Mar. 31, 2010. When Mr. Henderson filed a nearly identical complaint on
March 19, 2010, the court again denied his motion to proceed in forma pauperis
and dismissed the second complaint for the same reasons detailed in the March 9
order dismissing the first complaint. D. Ct. Order of May 4, 2010.
Before us, Mr. Henderson seeks to proceed in forma pauperis to appeal the
dismissals of both complaints and the imposition of sanctions. After a careful
review of the record, we conclude that the district court did not abuse its
discretion when, after describing Mr. Henderson’s long history of abusive
litigation and giving him an opportunity to respond, it imposed filing restrictions
that include clear guidelines as to how he can obtain permission to file future
actions. See Evans-Carmichael, 343 F. App’x at 296.
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We also conclude, for substantially the same reasons set out by the district
court in its March 9, 2010 order, that Mr. Henderson’s appeals from his
complaints are frivolous. Accordingly, we hereby dismiss his appeals and deny
his request to proceed in forma pauperis on appeal. See 28 U.S.C.
§ 1915(e)(2)(B)(i) (“[T]he court shall dismiss the case at any time if the court
determines . . . the . . . appeal is frivolous or malicious . . . .”).
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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