F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH November 14, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
K A Y SIEVER DIN G ,
Plaintiff-Appellant,
and No. 06-1038
D A V ID SIEV ER DIN G ;
ED SIEV ER DIN G ;
TO M SIEV ER DIN G ,
Plaintiffs,
v.
C OLO RA D O BA R A SSO CIA TION,
and their insurance company (true
nam e unknow n); C ITY O F
STEA M B OA T SPR IN G S, C O,
a m unicipality; A M ER IC AN BAR
ASSO CIATION, and their insurance
company (true name unknown);
JANE BENNETT, private citizen
acting in conspiracy with City policy
makers; KEV IN B ENN ETT,
individually and in capacity as City
council member; KEN BRENNER,
individually and in capacity as a City
council member; DAVID
BROUGHAM , individually and in
capacity as apparent City insurance
agent (for CIRSA ); CIRSA , insurance
agent for the CITY; INSURANCE
AGENT, other than Brougham, and
decision makers for CIRSA (true
nam e unknow n); K A TH Y
CONNELL, individually and as
employed as City council member;
DAVIS, GRA HAM & STU BB S,
LLC ; JA M ES EN G LEK EN ,
individually and in capacity as City
council m ember; A RT FIEB IN G ,
individually and as employed as City
assistant chief of police; SA N D Y
FIEBING, individually and as the
City code enforcement officer;
DANIEL FOOTE, individually and in
capacity as assistant City attorney;
JAM ES G ARRECHT, in capacity as
district court judge (for injunctive
relief only since he is immune from
suit for damages); J. D. HAYS,
individually and in capacity as City
director of public safety; HA LL &
EVANS, LLC, and their insurance;
JAM ES “SAND Y” HORNER,
individually and as attorney working
for K lauzer & Tremaine and his
insurance company; PAUL H UGHES,
individually and in capacity as City
manager; KLA UZER & TREM AINE,
a law firm, and insurance (true name
unknown); RANDA LL KLAUZER,
individually and in capacity as an
attorney and his insurance company;
CHARLES LANCE, individually and
in capacity as former district attorney
and his insurance; A N TH O N Y
LETTUNICH, individually and in
capacity as City attorney and his
insurance; PAUL R. M CLIM ANS,
individually and in capacity as a
district attorney and his insurance
company; WENDIE
SCHULENBURG, (a.k.a. Rooney),
individually and in capacity as City
planning services director and her
insurance; M ELIN D A SH ER MA N,
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former assistant City attorney,
individually, and in capacity, and
their insurance; KERRY ST. JAM ES,
individually and in capacity as deputy
or assistant district attorney and his
insurance; JAM ES B.F. OLIPHANT,
Bennett’s attorney and purchaser of
plaintiff’s home; SU ZA N N E
SCHLICHT, individually and in
capacity as newspaper publisher and
her insurance; STEA M B OA T PILOT
& TODA Y NEW SPAPER,
(W orldwest Limited Liability
Company), and insurance (true name
unknown); ARIANTHE STETTNER,
individually and in capacity as City
council m ember; PA U L STR ON G,
individually and in capacity as City
council member and his insurance
company; RICH AR D TREM AINE,
individually and in capacity as an
attorney and his insurance company;
JA M ES W EBER, individually and in
capacity as City public works director
and his insurance company; P.
ELIZABETH WITTEM YER,
individually and in capacity as deputy
district attorney, and her insurance,
Defendants-Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 02-CV-1950-EW N-O ES)
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Submitted on the briefs: *
Kay Sieverding, Pro Se.
Patricia J. Larson, Senior Associate General Counsel, American Bar Association,
Chicago, Illinois, for Defendant-Appellee American Bar Association.
Thomas B. Kelley, Christopher P. Beall, Faegre & Benson, LLP, Denver,
Colorado, John M . Palmeri, Brett Norman Huff, W hite and Steele, P.C., Denver,
Colorado, M ichael T. M cConnell, Traci L. Van Pelt, Robert W . Steinmetz,
M cConnell, Siderius, Fleischner, Houghtaling & Craigmile, LLC, Denver,
Colorado, David R. Brougham, Hall & Evans, Denver, Colorado, for
Defendants-Appellees.
Before BARRETT, A ND ER SO N, and BALDOCK , Circuit Judges.
B ALDO C K , Circuit Judge.
Kay Sieverding, proceeding pro se, appeals from the district court’s order
imposing filing restrictions. W e affirm the district court’s imposition of filing
restrictions, but we conclude that a portion of the order must be modified.
Background
M s. Sieverding, her husband, and two sons filed a complaint in the District
of Colorado in October 2002. The complaint was 106 pages long and set forth
*
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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claims against thirty-six individuals or entities. The underlying issue in the case
related to the alleged violation of the Sieverdings’ rights with regard to zoning
decisions that affected them and their former neighbors. During the pendency of
the case, the Sieverdings filed more than 100 motions. In October 2003, the
magistrate judge assigned to the case issued a sixty-one page recommendation
that the case be dismissed with prejudice; that the Sieverdings be required to pay
defendants’ costs and fees; and that they be enjoined from commencing further
litigation in the District of Colorado regarding these events without first obtaining
counsel. The district court accepted and adopted the recommendations in an order
entered on M arch 19, 2004, but expanded on the magistrate judge’s recommended
filing restrictions by enjoining the Sieverdings from filing law suits related to this
subject matter in the District of Colorado or any other court.
The Sieverdings filed three appeals from the M arch 2004 order in this court
and they were consolidated. The district court’s order adopting the magistrate
judge’s recommendation was summarily affirmed on appeal. W e observed that
“appellants did not assert error with the imposition of filing restrictions and,
therefore, this court will enforce those restrictions.” Sieverding v. Colo. Bar
Ass’n, 126 F. App’x 457, 459 (10th Cir. 2005).
In late 2004 and 2005, the Sieverdings continued filing actions relating to
the subject matter of their previous lawsuit. They filed five new civil actions in
the federal district courts in M innesota, Northern Illinois, and the District of
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Columbia; one new civil action in the state court in Denver County, Colorado;
and one appeal in the Eighth Circuit Court of Appeals. In the summer of 2005,
the defendants filed a motion requesting a show cause order as to why the
Sieverdings should not be sanctioned for violating the filing restrictions portion
of the M arch 2004 order. On September 2, the district court held a hearing and
found the Sieverdings to be in contempt of court for violating the M arch 2004
order. The district court gave both of the Sieverdings the option of dismissing the
law suits that remained pending in the District of Columbia and Colorado state
court or going to jail. M s. Sieverding refused to dismiss the lawsuits and was
sent to jail. M r. Sieverding withdrew his name from the pending cases.
On January 4, 2006, Judge Nottingham held a show cause hearing, and
ordered M s. Sieverding to dismiss the remaining law suits that had been filed in
violation of the M arch 2004 order. M s. Sieverding was released from custody
with the condition that she dismiss all of her remaining lawsuits by January 11.
At that hearing, Judge Nottingham also entered another order, which prohibited
M s. Sieverding from filing any further lawsuits anywhere in this country unless
she is represented by a lawyer or unless the district court specifically approves
her filing of a given lawsuit. This order broadened the M arch 2004 order because
it was not limited by subject matter. The district court entered a written order on
January 31 that memorialized the verbal order from January 4 and gave support
for his filing restrictions decision. M s. Sieverding filed a petition for mandamus
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from the January 4 order and this court construed it as a notice of appeal from the
verbal January 4 order as memorialized in the January 31 order.
Discussion
“[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) (citations omitted) (per curiam). Federal courts have the inherent power
“to regulate the activities of abusive litigants by imposing carefully tailored
restrictions under the appropriate circumstances.” Id. at 352 (quoting Cotner v.
Hopkins, 795 F.2d 900, 902-03 (10th Cir. 1986)). W e agree with the district court
that filing restrictions were appropriate in this case. W e conclude, however, that
the restrictions w ere not carefully tailored as required by our case law and that a
portion of the filing restrictions order must be modified.
The substance of the filing restriction states:
Kay Sieverding and David Sieverding are hereafter prohibited from
commencing any pro se litigation in any court in the United States on
any subject matter unless they meet the requirements of Paragraph 2
below .
R., Vol. I, Doc. 788 at 7 ¶ 1. Paragraph 2 explains that the Sieverdings must seek
approval from the District of Colorado before commencing any pro se litigation in
any court in the United States on any subject matter. Id. at ¶ 2. The order does
not apply if the Sieverdings are represented by a licensed attorney. Id. at ¶ 3.
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This filing restrictions order is unlike other filing restrictions orders that
have been reviewed by this court because it extends to any court in this country as
opposed to being limited to the jurisdiction of the court issuing the order. The
order thereby includes every state court, every federal district court and every
federal court of appeal. Appellees cite to only one case that involved similarly
broad filing restrictions, M artin-Trigona v. Lavien, 737 F.2d 1254 (2d Cir. 1984),
to support their argument that the breadth of the district court’s order was
appropriate.
In M artin-Trigona, the Second Circuit was reviewing an order imposing
restrictions that enjoined the filing of any action in any state or federal court in
the United States arising out of plaintiff’s bankruptcy proceedings, unless certain
conditions w ere met. The order did, however, include an exception for certain
types of filings, including filings in the federal appellate courts. See id. at 1259
(“Nothing in this order shall be construed as denying [plaintiff] access to the
United States Courts of Appeals.”). The Second Circuit upheld the portion of the
filing restrictions order that prohibited the plaintiff from filing an action in any
federal district court in the country without prior permission. See id. at 1262.
The court determined, however, that the district court erred by extending the
filing restrictions to include state courts, although the court left intact the
requirement that M r. M artin-Trigona notify the state courts regarding his prior
litigation history. See id. at 1262-63.
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W e disagree with the Second Circuit’s decision to uphold the broad filing
restriction limiting access to any federal district court in the country and we will
not uphold such a broad filing restriction in this case. W e think it is appropriate
for the District of Colorado to impose filing restrictions that include other federal
district courts within the Tenth Circuit, but that it is not appropriate to extend
those restrictions to include federal district courts outside of this Circuit. It is not
reasonable for a court in this Circuit to speak on behalf of courts in other circuits
in the country; those courts are capable of taking appropriate action on their own.
W e agree with the Second Circuit’s determination that it is not appropriate
for a federal district court to restrict access to the state courts. The district court
erred in this case by imposing filing restrictions limiting access to any court in
the country. Finally, we note that the district court’s broad order, unlike the order
at issue in M artin-Trigona, fails to include an exception for filings in the federal
appellate courts. This was error. It is unreasonable for the District of Colorado
to attempt to limit access to this court or any other court of appeal. W e are
capable of deciding if filing restrictions are appropriate in this court.
In light of our ruling in this case, we note that the district court’s M arch
2004 order is also defective. Although that order is not properly before us and
the district court did not have the benefit of this decision when it entered that
order, we exercise our supervisory power to instruct the district court that it may
not enforce the provisions of the M arch 2004 order that are inconsistent with this
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decision. See, e.g., United States v. Ochoa-Vasquez, 428 F.3d 1015, 1029-30
(11th Cir. 2005), cert. denied, No. 05-1524, 2006 W L 1522633 (U.S. Oct. 10,
2006); see generally Cupp v. Naughten, 414 U.S. 141, 146 (1973) (describing
supervisory power of appellate courts to review proceedings of trial courts).
Finally, we conclude that the district court’s decision to restrict
M s. Sieverding’s filings on any subject matter and as to any defendant is
overbroad. The district court’s M arch 2004 filing restrictions order was properly
limited by subject matter and defendant because it prohibited filings based on the
series of transactions described in that initial federal action, case number
02-cv-1950. Given M s. Sieverding’s continued filings after that restriction was
entered, the district court was justified in expanding the scope of the filing
restrictions, but there is no apparent basis for extending the restriction to include
any subject matter and any party. M s. Sieverding has not filed litigation against
random persons or entities. Instead, she has focused her efforts on filing actions
against the persons, entities, counsel, and insurance companies of the parties
involved in 02-cv-1950. W e believe the district court’s intention, to restrict
further abusive filings by M s. Sieverding, is best accomplished by modifying its
order to create a carefully-tailored restriction limiting her ability to file actions
against those persons and entities, but without limitation to subject matter. See,
e.g., M artin-Trigona v. Lavien, 737 F.2d at 1263 (instructing district court on
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remand to craft injunction restricting abusive litigant from filing any actions
against parties, counsel, and court personnel involved in prior litigation).
For the foregoing reasons, we affirm the district court’s order as modified
by this opinion. The portion of the order that states “Kay Sieverding and David
Sieverding are hereafter prohibited from commencing any pro se litigation in any
court in the United States on any subject matter,” R., Vol. I, Doc. 788 at 7 ¶ 1,
is modified to prohibit the Sieverdings from commencing any pro se litigation in
any federal district court within the Tenth Circuit against the persons, entities,
counsel, and insurance companies of the parties involved in 02-cv-1950. The
district court’s order is M ODIFIED IN PART, and, as modified, is AFFIRM ED.
A ll outstanding motions are D ENIED.
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