Custard v. Allred et al

Filing 14

ORDER of Dismissal. ORDERED that the Complaint and action are dismissed without prejudice. FURTHER ORDERED that all pending motions 2 3 5 6 8 10 12 13 are denied as moot, by Judge Lewis T. Babcock on 12/8/11.(lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02839-BNB
BOB ALLEN CUSTARD,
Plaintiff,
v.
D. ALLRED, et al.,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Bob Allen Custard, is a prisoner in the custody of the United States
Bureau of Prisons and currently is incarcerated at ADX in Florence, Colorado. Mr.
Custard, acting pro se, initiated this action by filing a Prisoner Complaint and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. On
November 7, 2011, Magistrate Judge Boyd N. Boland entered an order finding that,
among other deficiencies, Mr. Custard’s Complaint was disjointed and repetitive and
failed to comply with the requirements of Fed. R. Civ. P. 8(a). Magistrate Judge Boland
also found that Mr. Custard is subject to 28 U.S.C. § 1915(g) filing restrictions. Mr.
Custard was ordered to file an amended complaint that complies with Rule 8(a) and to
show cause why he should not be denied leave to proceed in forma pauperis. On
November 18, 2011, Mr. Custard filed an amended complaint, but the pleading is
disjointed and repetitive and again fails to comply with Rule 8.
The last action Mr. Custard filed with this Court, Custard v. Lappin. et al., No. 07cv-00844-ZLW (D. Colo. July 26, 2007), was dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) as malicious. In Case No. 07-cv-00844, the court found that Mr.

Custard was more interested in refusing to comply with court directives than proceeding
with the claims he raised. Id. at Doc. No. 36. In this case, Mr. Custard has filed eight
motions that are unnecessary. The Motion for Recusal also is a baseless opposition to
Magistrate Judge Boland’s directive to show cause why he should not be denied leave
to proceed pursuant to § 1915 and to amend the Complaint. Here, as in Case No. 07cv-00844, Mr. Custard seeks to resist all Court directives.
Mr. Custard also claims he is unable to complete Section “E. Previous Lawsuits,”
in the complaint form because he does not have access to his closed case files. In the
Motion for Recusal filed in this case, however, he quoted the caption of a motion he filed
in Case No. 07-cv-00844-ZLW, indicating that he does have access to his paperwork in
previous cases. Mr. Custard’s alleged inability to complete Section E. is another refusal
to comply with this Court’s directives.
The caption Mr. Custard quotes in the Motion for Recusal contains the
threatening, profane, and abusive language that served in part as the basis for
dismissing Case No. 07-cv-00844-ZLW pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Mr.
Custard’s quoting of the caption in the Motion for Recusal is unnecessary,
inappropriate, and an attempt to use inappropriate language in this case without
incurring the consequences he was subjected to in Case No. 07-cv-00844-ZLW.
The Court finds Mr. Custard’s actions to be an abuse of the judicial process.
Federal courts have the inherent power under 28 U.S.C. § 1651(a) to regulate the
activities of abusive litigants by entering orders that are “necessary or appropriate in aid
of [the Court’s] jurisdiction.” See Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315
(10th Cir. 1994) (per curiam); Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989). If
Mr. Custard continues to abuse the judicial process, the Court will consider other

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sanctions in addition to his § 1915(g) filing restrictions. Accordingly, it is
ORDERED that the Complaint and action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 41(b) for failure to file an amended complaint that complies
with the November 7, 2011 Order. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 8th

day of

December

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2011.