Gilbert-Mitchell v. Allred et al

Filing 66

ORDER ON MOTION AND RECOMMENDATION OF DISMISSAL OF CASE. Granting 46 Federal Bureau of Prisons' Motion to Reconsider Granting In Forma Pauperis Status. Judge Boland's Order 4 granting IFP status is vacated. Recommended that plainti ff's Complaint 1 be dismissed as a sanction for his abuse of the judicial process and fraud on the court. Recommended that if Judge Arguello does not adopt this court's recommendation as to dismissal of plaintiff's Complaint, that plaintiff shall be ordered to pay the filing fee for this matter in full within fourteen (14) days of the date of Judge Arguello's order. By Magistrate Judge Michael J. Watanabe on 4/3/2013.(mjwcd) Modified on 4/4/2013 to change event (dkals, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01997-CMA-MJW
WALLACE GILBERT-MITCHELL, JR.,
Plaintiff,
v.
DAVID V. ALLRED, in his personal and professional capacities,
H. NEWCOMB, in his personal and professional capacities,
MS. INOUYE, in her personal and professional capacities,
J. RODRIGUES, in his personal and professional capacities,
ROBERT LEGGITT, in his personal and professional capacities,
THERESA MONTOYA, in her personal and professional capacities, and
MS. MCDERMOTT, in her personal and professional capacities,
Defendants.

ORDER ON
FEDERAL BUREAU OF PRISONS’ MOTION TO RECONSIDER GRANTING
PLAINTIFF IN FORMA PAUPERIS STATUS (Docket No.46)
and
RECOMMENDATION OF DISMISSAL OF CASE

MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this court pursuant to an Order Referring Case (Docket No.
27) issued by Judge Christine M. Arguello on January 25, 2013. This matter comes
before the court on the Federal Bureau of Prisons’ (“BOP”) Motion to Reconsider
Granting In Forma Pauperis Status (Docket No. 46).
The court notes that the BOP did not enter an appearance in this matter.
However, as an officer of the court, counsel for the BOP is essentially moving to
intervene in this matter for the purpose of preventing fraud on the court. The court

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notes that the named defendants are employees of the BOP, and further notes that if
and when the named defendants are served, counsel for the BOP, i.e, the U.S.
Attorneys’ Office, will likely represent the named defendants. Further, the BOP’s
intervention will not unduly delay or prejudice the adjudication of the original parties’
rights. Accordingly, the court will allow the permissive intervention of the BOP under
Fed. R. Civ. P. 24(b) for the limited purpose of presenting the subject motion. See Kane
Cnty., Utah v. U.S., 597 F.3d 1129, 1135 (10th Cir. 2010) (stating that the “grant of
permissive intervention lies within the discretion of the district court”).
Plaintiff is proceeding pro se. The court, therefore, reviews his pleadings and
other papers liberally and holds them to a less stringent standard than those drafted by
attorneys . Trackwell v. United States Government, 472 F.3d 1242, 1243 (10th Cir.
2007). See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro
se complaint to less stringent standards than formal pleadings drafted by lawyers).
However, a “plaintiff's pro se status does not entitle him to application of different rules.”
Wells v. Krebs, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010).
On February 26, 2013, the BOP filed the subject motion asking the court to
reconsider Judge Boland’s Order (Docket No. 4) granting plaintiff’s Motion for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (Docket No. 3). In its motion, the BOP asserts
that plaintiff is not permitted to proceed in forma pauperis (“IFP”) because he has
accumulated at least three strikes under 28 U.S.C. § 1915(g). On February 27, 2013,
the court held a telephonic status conference. During the conference, plaintiff was
handed a copy of the subject motion by BOP counsel present with plaintiff in the prison
facility. The court gave plaintiff up to and including March 18, 2013 to respond to the

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motion. On March 14, 2013, plaintiff filed a motion (Docket No. 52) seeking thirty
additional days to respond to the BOP’s motion. The next day, the court entered an
order (Docket No. 60) granting plaintiff’s motion in part, giving plaintiff up to and
including April 1, 2013 to file a response. Ultimately, plaintiff did not file a timely
response to the subject motion.
The BOP’s motion and the attached exhibits not only convincingly establish
plaintiff’s three-strikes status, but also detail plaintiff’s deliberate attempts to circumvent
his status through the use of false names. The court notes that plaintiff filed this case
using the name “Wallace Gilbert-Mitchell, Jr.” Neither plaintiff’s Complaint (Docket No.
1) nor his Motion for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (Docket No. 3)
make reference to his federal register number, i.e, his inmate number. However,
plaintiff’s trust fund statement, attached to Docket No. 3, shows his correct name is
Wallace Mitchell and his inmate number is 51443-060.
The declaration of Kara Lundy (Docket No. 46-3), states that she searched the
BOP’s national SENTRY database based on plaintiff’s inmate number. The database
shows six aliases associated with plaintiff’s name and inmate number: (1) Richard
Marvin Dale; (2) Wallace G. Mitchell; (3) Wallace Gilbert Mitchell; (4) Wallace Gilbert
Mitchell, Jr.; (5) Martin Richmond; and (6) Charles Taylor. In addition, a search of the
BOP’s litigation database shows that plaintiff has filed cases under the following last
names: (1) Mitchell; (2) Carter-Mitchell; (3) Dean-Mitchell; (4) Deen-Mitchell; and (5)
Gilbert-Mitchell.
The United State District Court of the Middle District of Florida has previously
dealt with plaintiff and his use of aliases. That court noted:

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A review of the Bureau of Prison’s inmate locator reflect that Plaintiff’s
correct BOP inmate name is ‘Wallace Mitchell.’ Plaintiff has also filed a
Motion for Order to Direct the Clerk to Use Correct Address and Enter
Same on Record,’ (Doc. 6) seeking to have his correct federal prisoner
number deleted from his address. The Motion is DENIED. The Court will
address Plaintiff’s mail using the correct name, address, and federal
prisoner number reflected on the Bureau of Prison’s inmate locator. The
Court finds that Plaintiff’s attempt to prosecute this case under a variation
of his correct name was meant to thwart the Court’s investigation of his
prior case filing history.
See Docket No. 46-2. The court further noted that plaintiff’s prior cases were numerous
and plaintiff, as a frequent litigator, was “plainly aware of the requirement to disclose all
past civil cases filed while incarcerated.” Id. This order, and several others,
demonstrate that plaintiff has been informed of his three-strikes status by several
courts. See Docket Nos. 46-2, 46-4, 46-5, & 46-6. However, plaintiff failed to inform
this court of his status and only listed one prior case he has filed. See Docket No. 1, at
17.
28 U.S.C. § 1915(g) prohibits a prisoner from obtaining IFP status if “on 3 or
more prior occasions, while incarcerated or detained in any facility, [he] brought an
action or appeal in a court of the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be granted.” The
court finds that plaintiff has accumulated more that three strikes and for that reason
does not qualify for IFP status.

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Further, the court finds that plaintiff’s failure to fully disclose his previous lawsuits
and three-strikes status, under penalty of perjury, and his attempt to prosecute this case
under a variation of his real name, constitutes an abuse of the judicial process and fraud
on the court. See Rivera v. Allen, 144 F.3d 719, 731 (11th Cir. 1998) (abrogated on
other grounds, Jones v. Bock, 549 U.S. 199, 215 (2007)). An appropriate sanction for
plaintiff’s abuse of judicial process and fraud on the court is the dismissal of his
complaint. See id.; see also Chavez v. City of Albuquerque, 402 F.3d 1039, 1043-44
(10th Cir. 2005) (stating a court has the inherent power to dismiss a case because of
fraud on the court).

WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Federal Bureau of Prisons’ (“BOP”) Motion to Reconsider
Granting In Forma Pauperis Status (Docket No. 46) is GRANTED. Judge Boland’s
Order (Docket No. 4) granting IFP status is VACATED. It is further
RECOMMENDED that plaintiff’s Complaint be DISMISSED as a sanction for his
abuse of the judicial process and fraud on the court. It is further
RECOMMENDED that if Judge Arguello does not adopt this court’s
recommendation as to dismissal of plaintiff’s Complaint, that plaintiff shall be ordered to
pay the filing fee for this matter in full within fourteen (14) days of the date of Judge
Arguello’s order.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),

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the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).

Date: April 3, 2013
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge