FILED
United States Court of Appeals
Tenth Circuit
February 14, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
TRIGINAL D. JACKSON,
Plaintiff-Appellant,
No. 10-2220
v. (D.Ct. No. 1:10-CV-00891-WJ-RLP)
(D. N.M.)
ENFORCER OF CONSTITUTIONAL
POLICY; RESPECTLY
INJUNCTIVABLE PARTY; LT.
VIGOR; C/O WOODWARD; LT.
ELLISON; CMS/MDC
CORPORATION; UNKNOWN CMS
DOCTOR; BOOKING OFFICER,
Defendants-Appellees.
______________________________
ORDER AND JUDGMENT *
Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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This order and judgment is not binding precedent except under the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.
Appellant Triginal Jackson, a pro se litigant, appeals the district court’s
dismissal of his motion to file an action under 42 U.S.C. § 1983 following his
failure to follow district court filing restrictions imposed on him and an order
barring him from filing pleadings electronically. We deny Mr. Jackson’s motion
to proceed on appeal without prepayment of costs or fees and dismiss his appeal
as frivolous.
I. Procedural Background
On September 24, 2010, Mr. Jackson filed a document entitled “Re-file
Section 1983 Action Notice of Motion to File Leave of Court,” which the district
court construed as an attempt to amend his prior three complaints against the
same defendants – all of which were previously dismissed without prejudice. See
Jackson v. Bernalillo County, N.M. D.Ct. No. 09-CV-884-WJ-RLP (Feb. 23,
2010). In sua sponte denying permission to file the instant action, the district
court ordered his pleading be stricken from the record and the clerk of court to
close or otherwise prevent Mr. Jackson from using the district court’s CM/ECF
account to electronically file it. In taking these actions, the district court
explained: (1) it had previously and repeatedly denied Mr. Jackson’s requests to
electronically file documents based on his prior abusive filing practices; (2) in
filing the instant motion, Mr. Jackson continued to fail to comply with the prior
filing restrictions imposed by the court; (3) the prior three actions against the
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same defendants asserting the same or similar allegations were dismissed because
Mr. Jackson failed to provide the defendants sufficient information to provide
“fair notice as to the basis of the claims against him or her”; 1 and (4) his instant
pleading, if considered as an amended complaint, failed to state sufficient facts
for a viable claim for relief under 42 U.S.C. § 1983, and even if its filing were
permitted, it would be dismissed with prejudice because further amendment would
be futile.
As further procedural background, Mr. Jackson did not appeal the district
court’s dismissal of his last complaint against the same defendants. He also did
not serve the defendants in the instant matter. We also note Mr. Jackson has filed
multiple appeals before this court in the past few years – all concerning civil
rights actions. Four have been dismissed as baseless or frivolous 2 and four are
1
In the instant pleading and the other dismissed pleadings, Mr. Jackson
made the same claims certain officers and doctors at the Bernalillo County
Metropolitan Detention Center allegedly violated his medical privacy and
constitutional rights and imposed medical battery and intentional infliction of
emotional distress by requesting medical information, through an intake nurse, on
whether he had a sexually-transmitted disease and by pricking his finger to take
blood for the state’s DNA data bank.
2
See Jackson v. New Mexico Pub. Defender’s Office, 361 F.App’x 958
(10 th Cir. 2010) (consolidating Appeal Nos. 09-2093 (dismissing appeal on § 1983
claim as frivolous), 09-2158 (same), and 09-2215 (affirming dismissal of § 1983
claim for failure to state a claim on which relief may be granted)); Jackson v.
Walgreens Corp., 361 F.App’x 968 (10 th Cir. 2010) (affirming dismissal of § 1983
appeal for failure to state a claim on which relief may be granted).
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currently pending, including the instant appeal. 3
II. Discussion
On appeal, Mr. Jackson makes the same or similar arguments raised in his
pleading dismissed by the district court and presents no less than twenty-five
issues on appeal. In so doing, he fails to address the grounds on which the
district court dismissed his pleading, other than to provide a cursory explanation
that he violated the electronic filing restrictions imposed on him because “he was
under the impression that another court” gave him “permission to file
electronically.” Similarly, he provides no argument as to why he believes his
instant pleading states a cause of action on which relief may be granted under 42
U.S.C. § 1983. Rather, his brief contains a myriad of legal citations to various
state, district, circuit, and Supreme Court case law concerning sundry issues – all
welded together with incoherent argument and references to his prior arrests and
incarceration. Mr. Jackson, who is no longer a prisoner, also seeks leave to
appeal the district court’s dismissal of his pleading without prepayment of filing
fees (in forma pauperis) pursuant to 28 U.S.C. § 1915(a)(1).
3
The other three appeals pending before this court are No. 10-2080,
Jackson v. Chief of Police; No. 10-2146, Jackson v. Kelly; and No. 10-2147,
Jackson v. MDC, et al.
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“We review for an abuse of discretion the district court’s decision to
impose the sanction of dismissal for failure to follow court orders and rules.”
Gripe v. City of Enid, 312 F.3d 1184, 1188 (10 th Cir. 2002). “An abuse of
discretion occurs when a district court makes a clear error of judgment or exceeds
the bounds of permissible choice” under the circumstances, including reliance on
erroneous conclusions of law or findings of fact. Ecclesiastes 9:10-11-12, Inc. v.
LMC Holding Co., 497 F.3d 1135, 1143 (10 th Cir. 2007) (quotation marks and
alteration omitted). While we construe a pro se litigant’s pleadings liberally, see
Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10 th Cir. 2010), the fact Mr. Jackson is
a pro se litigant does not prohibit this court from dismissing his appeal as
frivolous. See Haworth v. Royal, 347 F.3d 1189, 1192 (10 th Cir. 2003).
A claim or appeal is frivolous under § 1915 if it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812-13 (10 th Cir. 1997). We
have held “[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.” Winslow v. Hunter (In re Winslow), 17 F.3d 314,
315 (10 th Cir. 1994) (per curiam) (quotation marks omitted).
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Federal courts also possess inherent authority “to regulate the activities of
abusive litigants by imposing carefully tailored restrictions under the appropriate
circumstances.” Tripati v. Beaman, 878 F.2d 351, 352 (10 th Cir. 1989) (per
curiam). We have long held that where a party has engaged in a pattern of
litigation activity which is manifestly abusive, restrictions are appropriate, but
only after notice and an opportunity to respond are given. See Werner v. Utah, 32
F.3d 1446, 1447-48 (10 th Cir. 1994); Winslow, 17 F.3d at 315. We may impose
filing restrictions based on our inherent power to regulate federal dockets,
promote judicial efficiency, and deter frivolous filings. See Van Sickle v.
Holloway, 791 F.2d 1431, 1437 (10 th Cir. 1986). Moreover, Rule 38 of the
Federal Rules of Appellate Procedure allows this court to award damages as a
sanction for a frivolous appeal. See generally Stafford, 208 F.3d at 1179.
Applying our standard of review and applicable legal principles, we discern
no abuse of discretion in the district court’s decision to impose the sanction of
dismissal on Mr. Jackson’s instant pleading based on his violation of that court’s
orders and filing restrictions. It is apparent the district court imposed those
orders and restrictions based on his prior abusive filing practices and unnecessary
expenditure of judicial resources. His instant noncompliance has similarly caused
such unnecessary expenditure, warranting the district court’s dismissal.
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Moreover, by filing multiple actions against the same defendants on the
same grounds without correcting the procedural and substantive errors identified
by the district court, it is apparent Mr. Jackson is frivolously re-attempting to
obtain a favorable result, both here and in the district court, despite his repeated
lack of success and previous failure to appeal. The fact he is now appealing the
district court’s dismissal of the instant pleading, without addressing his violation
of its filing restrictions or other procedural deficiencies, only further
demonstrates the blatant frivolousness of this appeal. Having determined his
appeal is frivolous, our tally shows he has filed at least three frivolous appeals
before this court in just over a two-year period.
Based on Mr. Jackson’s manifestly abusive pattern of filing frivolous
appeals in this court, we caution him future frivolous appeals on this or any other
matter may result in summary disposition without discussion and/or an order
requiring him to show cause why this court should not impose both appellate
filing restrictions and sanctions. In addition, because this is Mr. Jackson’s fourth
attempt at filing a civil rights action containing the same or similar deficiencies
against the same defendants, we may consider any future attempted action against
them a form of harassment and advise him this court, as well as the district court,
have the power, under 28 U.S.C. § 1651(a), to enjoin him from pursuing any such
action. See Tripati, 878 F.2d at 352-53.
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We further deny Mr. Jackson’s motion for leave to proceed in forma
pauperis in the instant action based on the frivolousness of his appeal and abuse
of our judicial resources. We caution him we may also limit permission to
proceed in forma pauperis in the future, regardless of his financial ability to pay
such costs and fees. See In re McDonald, 489 U.S. 180, 183-85 (1989) (limiting
petitioner from proceeding in forma pauperis based on petitioner’s abuse of
judicial resources); Thompson v. Gibson, 289 F.3d 1218, 1222-23 (10 th Cir. 2002)
(explaining dismissal of frivolous action or appeal constitutes a “strike” and if
three strikes are accrued, the litigant may no longer proceed in forma pauperis in
any civil action filed in federal court unless he is in imminent danger of physical
injury). Again, the fact Mr. Jackson is a pro se litigant does not prohibit this
court from such summary disposition, sanctions, or other limitations on frivolous
or abusive filings. See Haworth, 347 F.3d at 1192.
III. Conclusion
For the foregoing reasons, we DENY Mr. Jackson’s motion to proceed on
appeal without prepayment of costs or fees and DISMISS his appeal as frivolous.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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