FILED
United States Court of Appeals
Tenth Circuit
February 25, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MICHAEL E. MCKINZY, SR.,
Plaintiff-Appellant,
v. No. 09-3241
(D.C. No. 2:09-CV-02070-CM-JPO)
KANSAS CITY POWER & LIGHT (D. Kan.)
COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and ANDERSON, Circuit Judges.
Pro se plaintiff Michael E. McKinzy, Sr., appeals from the district court’s
order denying his motion for summary judgment and granting defendant Kansas
City Power & Light Company’s motion for summary judgment in this
failure-to-hire discrimination lawsuit. We have jurisdiction under 28 U.S.C.
*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 1291, and we dismiss the appeal as frivolous. We also impose filing restrictions
on Mr. McKinzy.
Mr. McKinzy raises the same arguments we addressed in his two most
recent appeals to this court. See McKinzy v. Norfolk S. R.R., No. 09-3164,
2009 WL 4298573, at *2-3 (10th Cir. Dec. 2, 2009) (rejecting arguments
concerning the court’s order granting defendant an extension of time to respond to
his motion for summary judgment and denial of his motion for summary
judgment); McKinzy v. Union Pac. R.R., No. 09-3108, 2009 WL 3303699, at *2
(10th Cir. Oct. 15, 2009) (same). In Norfolk, we cautioned Mr. McKinzy that “he
is perilously close to being deemed an abusive litigant. If he continues to appeal
dismissals of frivolous discrimination lawsuits, he will be subject to sanctions
under this court’s inherent powers to control its docket. This may include, among
other things, . . . dismissal of his appeal, and future filing restrictions.” 2009 WL
4298573 at *3.
“We have long recognized our inherent authority to dismiss an appeal
presenting no arguably meritorious issue for our consideration.” MacArthur v.
San Juan County, 495 F.3d 1157, 1161 (10th Cir. 2007) (quotation omitted).
Mr. McKinzy’s appeal meets this standard. Not only have we considered and
rejected his arguments on two occasions within the last six months, Mr. McKinzy
never mentions these decisions, and thus, makes no attempt to distinguish them.
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Further, Mr. McKinzy’s repeated filing of frivolous appeals justifies the
imposition of restrictions against him in this court with respect to any future
filings. See Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007) (holding
“injunctions restricting further filings are appropriate where the litigant’s lengthy
and abusive history is set forth”). Thus, to proceed pro se in this court as an
appellant or petitioner in an original proceeding, Mr. McKinzy must provide this
court with:
1. A list of all appeals or original proceedings that he has filed against the
defendant, whether currently pending or previously filed with this court, including
the name, number, and citation, if applicable, of each case, and the current status
or disposition of each appeal or original proceeding; and
2. A notarized affidavit, in proper legal form, which recites the issues he
seeks to present, including a short discussion of the legal basis asserted therefor,
and describing with particularity the order being challenged. The affidavit must
also certify, to the best of Mr. McKinzy’s knowledge, that the legal arguments
being raised are not frivolous or made in bad faith, that they are warranted by
existing law or a good faith argument for the extension, modification, or reversal
of existing law, that the appeal or original proceeding is not interposed for any
improper purpose, such as to needlessly increase the cost of the litigation, and
that he will comply with all appellate and local rules of this court.
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These filings shall be submitted to the Clerk of the court, who shall forward
them for review to the Chief Judge or his designee, to determine whether to
permit Mr. McKinzy to proceed with a pro se appeal or original proceeding.
Without such authorization, the matter will be dismissed. If the Chief Judge or
his designee authorizes the pro se appeal or original proceeding, an order shall be
entered indicating that the matter shall proceed in accordance with the Federal
Rules of Appellate Procedure and the Tenth Circuit Rules.
Mr. McKinzy shall have ten days from the date of this order and judgment
to file written objections, limited to fifteen pages, to these proposed filing
restrictions. If Mr. McKinzy does not file timely objections, the filing restrictions
shall take effect twenty days from the date of this order and judgment. If
Mr. McKinzy does file timely objections, these filing restrictions shall not take
effect unless the court rules against Mr. McKinzy on his objections, in which case
these filing restrictions shall apply to any matter filed in this court after that
ruling.
Kansas City Power & Light Company’s request for attorney fees on
appeal is DENIED for failure to file a separate motion. See Fed. R. App. P. 38
advisory committee’s note (1994 amendments). Mr. McKinzy’s appeal is
DISMISSED. His objections, if any, to the proposed filing restrictions are due
within TEN DAYS of the date of this order and judgment.
ENTERED FOR THE COURT
PER CURIAM
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