Andrews v. Heaton

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
April 23, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

EDDIE L. ANDREW S, an individual,

Plaintiff-Appellant,
v.

JOE HEATON, an individual; JOHN C.
PORFILIO, an individual; PAUL J.
KELLY, an individual; CARLOS F.
LUCERO , an individual; TERREN CE L.
O 'B RIEN , an individual; TIM O THY
TY M K O V IC H, an individual; WADE
B RO RB Y, an individual; ELISABETH A.
SH U MA K E R, an individual; D . W AYNE
LEE, an individual; JANET W RIGHT, an
individual; JOSEPH W . HARRIS, an
individual; TRAVIS W HITE, an
individual; ANGELA TARRON, an
Nos. 06-6215, 06-6253, 06-6279
individual; DAVID L. RUSSELL, an
individual; M ELANIE LESLEY, an
individual; ROBIN CAUTHRON, an
individual; JOSEPH STREALY, an
individual; TIM OTHY D. LEONARD, an
individual; VICK I M ILES-LAG RA NG E,
an individual; STEPHEN P. FRIOT, an
individual; RALPH G. THOM PSO N, an
individual; LEE R. W EST, an individual;
D O Y LE W. A RG O , an individual; BANA
ROBERTS, an individual; GARY M .
PU RCELL, an individual; V A LERIE K.
COUCH, an individual; ROBERT E.
BA CH AR AC H, an individual; RO NA LD
L. HO W LAN D, an individual; SHO N T.
ER W IN , an individual; R OB ERT D.
DEN NIS, an individual; LISA BO LD S,
an individual; PATRICK J. FISHER, JR.,
an individual; DEBRA STRUCK, an
individual; D EA N ELL R EEC E TACHA,
an individual; W ILLIA M J.
HOLLOW AY, JR., an individual;
ROBERT H. M cW ILLIAM S, an
individual; M ONROE G. M cKAY, an
individual; STEPHAN IE K. SEYM OUR,
an individual; STEPH EN H .
AND ERSON, an individual; BOBBY R.
BALDOCK, an individual; DAVID M .
EB EL, an individual; R OB ER T H.
HENRY, an individual; M ARY BECK
BRISCOE, an individual; M ICHAEL R.
M URPH Y, an individual; HARR IS L
HARTZ, an individual; M ICHAEL W .
M cCO NN ELL, an individual; DR EW
ED M O N D SO N , an individual; M ARTHA
R. KULM ACZ, an individual; HOW ARD
H. HENDRICK, an individual; RICHARD
W . FREEM AN, JR., an individual;
CHARLES L. W ATERS, an individual;
NANCY VONBARGEN, an individual;
DO UG HO UG HT, an individual; GA LE
F. SM ITH, an individual; THOM AS M .
BARTHELD, an individual; DAN NY R.
DEAVER, an individual; W INFORD
M IK E W A R REN , an individual; KALYN
C. FREE, an individual; CHRIS
W ILSO N , an individual; C HERYL
CERDA, an individual; CHUCK
COURTS, an individual; ERIC
YA RBO UR OU GH , an individual; RITA
PELOQU IN, an individual; LAURA
TORBETT, an individual; KEVIN
OPENHO USE, an individual; JAM ES
PHYLLIER, an individual; DAVID
CU M M INS, an individual; GLEN
D RESB AC K, an individual; TOM
PIXTO N, an individual; FAYE SM AR T,
an individual; CA RO LYN HA THCOA T,

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 an individual; CELO HARREL, an
individual; JOHN W AM PLER, an
individual; STEPH EN BROOKS, an
individual; JAQUELINE DUNCAN, an
individual; PH YLLIS D ENNEY, an
individual; PA T VERSTEEG, an
individual; DOUGLAS E. CRESSLER, an
individual; L. BALLY, an individual;
RHONDA REYNOLDS, an individual;
SH AW NA FA HRENTHOLD, an
individual; DENISE GERHOLD, an
individual; JERRY L. ANDREW S, an
individual; TRACII ANDREW S, an
individual; PA ULETTE SCHULTZ, an
individual; DAN DEVERS, an individual;
and GAIL SM ITH, an individual,

Defendants-Appellees.

Appeal from the United States District Court
for the W estern District Oklahom a
(D.C. Nos. CIV-06-510-W FD and CIV-06-652-W FD)

Submitted on the briefs. *

Eddie L. Andrews, Pro Se.

Linda Soper, Assistant Attorney General, Oklahoma A ttorney General’s Office,
Oklahoma City, Oklahoma; M artha R. Kulmacz, Assistant Attorney General,
Office of Attorney General, Oklahoma City, Oklahoma; Deborah J. Groom,
Assistant United States Attorney, Fort Smith, Arkansas; Joseph W . Harris, Tulsa
Oklahoma; Richard W . Freeman, Assistant General Counsel, Department of

*
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); 10 Cir. R. 34.1(G ).
This case is therefore ordered submitted without oral argument.

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Human Services, Oklahoma City, Oklahoma; John M . W ampler, District
Attorney, Greer County, M angum, Oklahoma; Patrick O’Hara, Jr., and Brian L.
Cramer, W hitten, Nelson, M cGuire, Terry & Roselius, Oklahoma City, Oklahoma;
and Glen L. Dresback, Altus, Oklahoma, for Defendants-Appellees.

Before G OR SU C H, and HO LM ES, Circuit Judges, and KR IEGER , District
Judge. **

G O R SU CH, Circuit Judge.

This case involves three appeals and an array of appellate motions filed by

Eddie L. Andrews arising from two federal lawsuits he brought seeking to compel

federal judges to enjoin state court proceedings and obtain damages from them.

A prior suit filed by M r. Andrews regarding the same subject matter resulted in an

additional two appeals before this court. As with that first lawsuit, we now

conclude that M r. Andrews’s second and third lawsuits are without merit and

were properly dismissed by the district court. M r. Andrews’s complaints

currently before us suffer from several fatal defects; among other things, they

seek to assert claims against defendants entitled to absolute judicial immunity,

fail to meet the heightened pleading requirements of Rule 9(b) of the Federal

Rules of Civil Procedure, and seek to enforce criminal statutes through a civil

action. Because of the vexatious nature of M r. Andrews’s filings, the district

**
The Honorable M arcia S. Krieger, United States District Judge for the
District of Colorado, sitting by designation.

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court imposed restrictions on M r. Andrews’s ability to pursue additional pro se

filings in the W estern District of O klahoma. W e modify these restrictions,

limiting them in scope to filings related to the subject matter of M r. Andrew s’s

three related federal law suits, but we also extend them to preclude M r. Andrew s

from filing additional appeals in these or future related cases.

I

Although it is difficult to discern from the record, these appeals appear to

have their origin in a 2001 decision by the Oklahoma D epartment of Human

Services (“D HS”) to investigate complaints regarding various children in M r.

A ndrew s’s care, at least one of whom appears to have been his daughter. DHS

ultimately decided that the children should be placed in protective custody and

then foster care, and that M r. Andrews should be denied custody and visitation

rights to his daughter (and potentially the other children as well). It appears that

M r. Andrews sought to regain custody through some sort of state court proceeding

but grew frustrated and eventually sought recourse in federal court. 1

1
Defendants Joseph Harris and Paulette Schultz maintain that M r.
Andrews never properly appealed in Oklahoma courts to regain custody of his
child or obtain visitation rights. In addition, they maintain that M r. Andrews has
not made any of his court-ordered child support payments (or properly sought
modification of the child support order) and, as a result, has an extant warrant for
felony child support charges. W e need not address, let alone resolve, any of these
contentions here.

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 M r. A ndrews’s first federal case in the W estern District of Oklahoma,

CIV-05-110, named various family members and three DHS agents as defendants;

alleged a criminal conspiracy and violation of his procedural due process rights;

and sought to enjoin undefined state court proceedings which, as best the district

court could discern, appear to have involved a non-party to the lawsuit. Federal

district court Judge Joe Heaton dismissed M r. Andrews’s claims, holding that

most of the allegations fell outside the relevant statute of limitations and that a

federal court had neither the authority to enjoin the proceedings of an independent

sovereign judicial system under the circumstances nor the authority to enjoin

parties M r. Andrews had not named as defendants. M r. Andrews’s case resulted

in two appeals to this court (filed on the same date), which were resolved together

and affirmed the district court’s dismissal of his case.

M r. Andrews then filed his second federal lawsuit in the W estern District

of Oklahoma, CIV-06-510, naming some 21 defendants, including all of the

federal district and appellate judges who had issued orders adverse to him,

members of their staffs, and “John and Jane Does 1 through 199.” This lawsuit

alleged, among other things, that the named defendants had entered into a

criminal conspiracy to deprive M r. Andrews of his rights and defraud the United

States in violation of the Racketeer Influenced and Corrupt Organizations Act

(“RIC O”), 18 U.S.C. § 1961, et seq.

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 The claims against the federal judges and court employee defendants were

dismissed sua sponte 2 by Judge David L. Russell on M ay 17, 2006, because, the

court held, these defendants were entitled to absolute judicial immunity for the

alleged conduct in the complaint. Regarding the claims against the other

defendants, Judge Russell held that the claims for violations of criminal statutes

were not enforceable in a private civil action, the (generously read) civil RICO

claims failed to comply with the heightened pleading requirements of Rule 9(b),

and there were no allegations regarding any acts by the John and Jane Doe

defendants. Judge Russell instructed M r. Andrews that if he wished to proceed

with his law suit he should file an amended complaint within 20 days. M r.

Andrews did not do so.

Instead, on M ay 30, 2006, M r. Andrews filed a motion to vacate Judge

Russell’s order, which was denied on June 12, 2006. Undeterred, four days later

M r. Andrews appealed Judge Russell’s ruling and filed a third federal law suit in

the W estern District of Oklahoma, CIV-06-652. This third suit listed more than

80 defendants, including all of the then-sitting judges of the Tenth Circuit Court

2
A district court may dismiss a case sua sponte under Federal Rule C ivil
Procedure 12(b) “when it is ‘patently obvious’ that the plaintiff could not prevail
on the facts alleged.” M cKinney v. State of O kla., Dept. of H uman Servs.,
Shawnee O K, 925 F.2d 363, 365 (10th Cir. 1991) (citing Baker v. Dir., U. S.
Parole Comm’n, 916 F.2d 725, 727 (D .C. Cir. 1990); Huxall v. First State Bank,
842 F.2d 249, 249 n.2 (10th Cir. 1988)).

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of Appeals, all of the judges and magistrates in the W estern District of Oklahoma,

a great many members of judicial staff, together with several private attorneys. 3

Similar to his first two complaints, M r. Andrews’s third complaint alleged a

vague yet vast criminal conspiracy. Given that every local judge w as named as a

defendant, the case was assigned to Judge W illiam F. Downes, a federal judge

from the D istrict of W yoming. Judge D ownes dismissed all of M r. Andrew s’s

remaining claims because, the court held, M r. Andrews w as (again) impermissibly

attempting to enforce criminal statutes through a private civil action. 4 In

addition, Judge Downes established procedures for M r. Andrews to obtain

3
As part of his second law suit, M r. Andrews also filed three separate
m otions to strike and tw o motions to recuse or disqualify in June 2006, two
motions to strike in July 2006, one motion to strike in August 2006, one motion to
strike in September 2006, and a motion to “Demand this Court Read All Pleadings
Plaintiff Files W ith This Court, and Adhere Only to Constitutionally Compliant
Law and Case Law, and M ore Particularly, The Bill of Rights in its Rulings” in
September 2006.
4
Judge Downes was also asked to sit by designation to preside over the
remainder of M r. Andrews’s second lawsuit. Although Judge Russell had already
effectively dismissed M r. Andrews’s second complaint, judgment had not yet
been entered in the second law suit, presumably because the 20-day period to file
an amended complaint had been tolled while the district court considered M r.
A ndrew s’s motion to vacate. Judge Downes proceeded to consolidate the two
cases and then dismissed the consolidated law suit. This sequence of events
creates some confusion in the record because Judge Downes’s order in the
consolidated case technically appears to “redismiss” the already dismissed second
complaint. There are at least two plausible explanations for this apparent
discrepancy. First, Judge Downes treated the third complaint as if it were the
amended complaint Judge Russell had ordered to be filed, or, more likely, Judge
Downes’s order simply addressed the only claims remaining in the consolidated
lawsuit, i.e., the claims contained in the third complaint. None of this, however,
is material to our decision.

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permission from the court before initiating any additional pro se lawsuits in the

W estern D istrict of O klahoma. Finally, Judge Downes cautioned M r. Andrews

about bringing another round of frivolous appeals to this court. 5 M r. Andrews,

however, promptly appealed.

All told, M r. Andrews has brought a total of five appeals in three federal

lawsuits, three of which relate to his second and third lawsuits at issue here.

Although it is often difficult to discern from his pleadings, M r. Andrews appears,

at the very least, to contest before us Judge Russell’s dismissal of his second

complaint; Judge D ownes’s order dismissing the third complaint; and our orders

of August 7, 2006, and August 18, 2006, abating M r. Andrews’s appeals of Judge

Russell’s and Judge Downes’s dismissal orders while his motion to reconsider

Judge Downes’s dismissal order w as pending in the district court. In addition to

his appeals on the merits of these rulings, M r. Andrews has also lodged two

motions seeking to institute “a tribunal of special masters who are not now, nor

have they ever been federal circuit judges or members of any bar” to hear his

5
Although it is difficult to discern from his filings, in just over a month
between the initiation of his third lawsuit and Judge D ownes’s orders
consolidating and dismissing that case, M r. Andrews appears to have filed
approxim ately five motions for summary judgment, three motions to strike, tw o
motions for default judgment, three motions to recuse or disqualify, and one
objection to an entry of appearance. Subsequently, in the almost two months
between M r. Andrews’s filing of the motion to reconsider Judge Downes’s order
and Judge Downes’s denial of that order, M r. Andrews filed an additional eight
self-styled motions and objections in that case.

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cases. Beyond even this, M r. Andrews has submitted to us two sets of objections

to our orders abating his appeals w hile the district court resolved his motion to

reconsider; three motions for default judgment; a motion to strike a defense

motion; and two motions to strike the various Appellees’s Opening Briefs because

defense counsel of record, who include an Assistant United States Attorney, three

O klahom a A ssistant A ttorney G enerals, and an Assistant General Counsel of D H S

(the latter four attorneys are also named defendants in this matter), are allegedly

improper “interlopers” in this matter without authority to represent the

defendants.

II

W e read pro se complaints more liberally than those composed by lawyers

and dismiss them only when it appears “beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief.” Haines

v. Kerner, 404 U.S. 519, 521 (1972) (internal quotation omitted). As extensively

elaborated by the district court judges w ho have addressed M r. Andrew s’s

law suits, his federal claims are without merit and were properly dismissed in

accord with this steep standard.

First, dismissal of the claims against the judicial defendants was proper

because it is well established that “[a]bsolute immunity bars suits for money

damages for acts made in the exercise of prosecutorial or judicial discretion.”

Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th Cir. 2006) (citing M ireles v. Waco,

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502 U.S. 9, 13 (1991)). Given that M r. Andrews alleges the judicial defendants

engaged in unconstitutional conduct only while presiding over his civil lawsuits,

these defendants “were performing judicial acts and were therefore clothed with

absolute judicial immunity.” Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.

1994); see also Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir. 2002) (extending

judicial immunity to “any judicial officer who acts to either [(1)] resolve disputes

between parties or [(2)] authoritatively adjudicate private rights.” (internal quote

and alterations omitted)).

Second, even reading M r. Andrews’s second federal complaint as

generously as possible, dismissal of M r. Andrews’s second complaint was proper

because his vague and conclusory allegations of fraud failed to come anywhere

near satisfying the specificity requirements of Federal Rule Civil Procedure 9(b).

See Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1362

(10th Cir. 1989) (holding that Rule 9(b) requires that RICO predicate acts based

on fraud must be pled with specificity to provide clear notice of the factual basis

of the predicate acts to defendants). Judge Russell expressly noted this pleading

deficiency for M r. Andrews and invited him to file an amended complaint with

the requisite R IC O case statement and greater specificity, something M r. Andrew s

declined to do.

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 Third, M r. Andrews’s second complaint fails to include any allegations

regarding any acts by the unnamed John and Jane Doe defendants, and, therefore,

dismissal of these defendants was proper.

Finally, dismissal of M r. Andrew s’s claims in his second and third

complaints alleging violations of 18 U.S.C. §§ 241, 371, 1001, 1341, and 1503,

and 26 U.S.C. § 7214(a)(1), (2), (7), and (8), was proper because these are

criminal statutes that do not provide for a private right of action and are thus not

enforceable through a civil action. See United States v. Claflin, 97 U.S. 546, 547

(1878) (“That act contemplated a criminal proceeding, and not a civil action . . . .

It is obvious, therefore, that its provisions cannot be enforced by any civil action

. . . .”); Schmeling v. NO RDAM , 97 F.3d 1336, 1344 (10th Cir. 1996) (“[W]e find

no evidence that Congress intended to create the right of action asserted by

Schmeling, and we conclude that such a right does not exist.”). 6

Accordingly, we affirm the district court’s dismissals of M r. Andrew s’s

lawsuits. 7

6
To the extent that M r. Andrews asserts a qui tam action in his third
complaint, this claim also is meritless because qui tam actions cover “‘fraudulent
attempts to cause the Government to pay out sums of money.’” United States ex
rel. Bahrani v. Conagra, Inc., 465 F.3d 1189, 1194 (10th Cir. 2006) (emphasis
added) (quoting United States v. Neifert-White Co., 390 U.S. 228, 232-33 (1968)).
By contrast, M r. Andrews alleges only that the defendants have improperly
deprived him of sums in excess of one million dollars.
7
W e have reviewed as w ell the m any and various motions filed by M r.
Andrews in connection with his pending appeals and find them equally without
(continued...)

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 III

Federal courts have the inherent power to regulate the activities of abusive

litigants by imposing carefully tailored restrictions in appropriate circumstances.

See Sieverding v. Colo. Bar Ass’n., 469 F.3d 1340, 1343 (10th Cir. 2006); Tripati

v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989). Specifically, injunctions

restricting further filings are appropriate where the litigant’s lengthy and abusive

history is set forth; the court provides guidelines as to what the litigant may do to

obtain its permission to file an action; and the litigant receives notice and an

opportunity to oppose the court’s order before it is implemented. See Tripati, 878

F.2d at 353-54.

As part of his order dismissing M r. Andrews’s consolidated lawsuit, Judge

Dow nes enjoined M r. Andrews from filing any further lawsuits pro se in the

W estern District of Oklahoma w ithout first obtaining permission of the Chief

Judge; the order, by its terms, does not affect M r. Andrews’s right to pursue

actions of any kind with the benefit of counsel. Still, although it is beyond cavil

that M r. Andrews has a history of vexatious pro se filings and the district court

provided a mechanism by which M r. Andrews may receive approval for future pro

se filings, we are inclined to think the district court’s order might be more

narrowly tailored, at least in the first instance. M r. Andrews’s abusive pro se

7
(...continued)
merit.

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filing history is limited to pleadings filed in relation to state, and then federal,

court proceedings regarding the care and custody of his child(ren), and against

state and federal government officials and private attorneys related to these

matters. This history does not (at least as yet) suggest that M r. Andrews is likely

to abuse the legal process in connection with other persons and subject matters

and thus does not support restricting M r. Andrews’s access to the courts in all

future pro se proceedings pertaining to any subject matter and any defendant.

See, e.g., Sieverding, 469 F.3d at 1345 (“[T]here is no apparent basis for

extending [a similar advance review of pro se filings] restriction to include any

subject matter and any party [because] M s. Sieverding has not filed litigation

against random persons or entities.”). The filing restrictions imposed on M r.

Andrews by the district court are therefore modified to cover only filings in these

or future matters related to the subject matter of M r. Andrews’s three federal

lawsuits. See id. (approving of similar restrictions as a first response to abusive

filings); see also generally Van Sickle v. Holloway, 791 F.2d 1431, 1437 (10th

Cir. 1986) (prohibiting the filing of complaints that “contain the same or similar

allegations as those set forth in his complaint in the case at bar”); Shuffman v.

Hartford Textile Corp. (In re Hartford Textile Corp.), 681 F.2d 895, 897-98 (2d

Cir. 1982) (barring further pleadings in that case or in future litigation with

regard to the same claims or subject matter); Judd v. Univ. of N.M ., 149 F.3d

1190, 1998 W L 314315, at * 5 (10th Cir. June 2, 1998) (unpub.) (“[T]his court

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will not accept any further appeals or original proceedings relating to the parties

and subject matter of this case filed by appellant.”). 8

In addition to the district court’s filing restrictions we modify and approve,

we believe that parallel filing restrictions in this court are warranted. 9 M r.

Andrews has abused the appellate process in a manner similar to his abuse of the

district court’s offices – filing five frivolous appeals in three separate cases, all

involving essentially the same claims, along w ith a raft of equally meritless

motions and objections. See supra at 9-10. Accordingly, subject to Rule 35 of

the Federal Rules of Appellate Procedure and Tenth Circuit Rule 35.1, we will not

accept any further pro se filings from M r. Andrews related to W estern District of

Oklahoma case Nos. CIV-05-110, CIV-06-510, or CIV-06-652; the Clerk of this

court shall return any such filings, unfiled, to M r. Andrews. Additionally, this

court will not accept any further pro se appeals or original proceedings filed by

M r. Andrews related to the subject matter of these cases. M r. Andrews shall have

8
In reaching our conclusion on this score we, of course, do not hold, or
remotely mean to suggest, that broader pro se filing restrictions can never be
justified even as an initial matter.
9
The district court’s order requiring advance review of pro se filings
suggests, at one point, that it applies to proposed appeals. Dist. Ct. Order of
July 26, 2006, at 9. The order elsewhere clarifies, however, that it pertains only
to filings in the W estern District of Oklahoma. Id. at 9, 11. In any event, it is
settled in this circuit that “[i]t is unreasonable for [a district court] to attempt to
limit access to this court or any other court of appeals. W e are capable of
deciding if filing restrictions are appropriate in this court.” Sieverding, 469 F.3d
at 1344.

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ten days from the date of this order to file written objections, limited to 15 pages,

to these proposed sanctions. See Werner v. Utah, 32 F.3d 1446, 1449 (10th Cir.

1994); Judd, 1998 W L 314315, *5; In re Hartford Textile Corp., 681 F.2d at 89.

If M r. Andrews does not file an objection, the sanctions shall take effect 20 days

from the date of this order. If M r. Andrews does file timely objections, these

sanctions shall not take effect until after this court has ruled on his objections; the

filing restrictions shall apply to any matter filed after that time. 10

* * *

The judgment of the United States District Court for the W estern District of

Oklahoma is affirmed, with the exception of that portion of the order placing

filing restrictions on M r. Andrew s; those restrictions are modified to cover pro se

filings in or related to the subject matter of W estern District of O klahoma case

Nos. CIV-05-110, CIV-06-510, or CIV-06-652. M r. Andrews is further enjoined

from additional pro se filings in this court in connection with W estern District of

Oklahoma case Nos. CIV-05-110, CIV-06-510, or CIV-06-652, or any further pro

se appeals related to the subject matter of these three cases, except as noted

herein. So ordered.

10
This court has the pow er to impose still further sanctions such as costs,
attorney fees, and double costs for the filing of frivolous appeals, as well as an
outright ban on certain appeals, whether pro se or counseled. See Fed. R. App. P.
38; Van Sickle, 791 F.2d at 1437. Although we have not chosen to impose such
sanctions here, we may do so if M r. Andrews’s abusive filings continue.

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