Fay v. State of Colorado et al

Filing 5

ORDER dismissing this action, and denying leave to proceed in forma pampers on appeal, by Judge Lewis T. Babcock on 4/22/14. 3 MOTION and Affidavit for Leave to Proceed Under 28 U.S.C. 1915 is granted. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01090-BNB
J M (MARIA J) FAY,
Plaintiff,
v.
STATE OF COLORADO, and
CHERRY CREEK VALLEY W & S DISTRICT,
Defendants.

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
AND DISMISSING CASE

Plaintiff, J M (Maria J) Fay, who resides in Denver, filed pro se a Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3) and a
Complaint (ECF No. 1) pursuant to the Voting Rights Act of 1965, 42 U.S.C. § 1973, et
seq., for injunctive relief.
Ms. Fay will be granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams,
490 U.S. 319, 324 (1989).
The Court must construe Ms. Fay’s Complaint liberally because she is not

represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the complaint reasonably can be read
“to state a valid claim on which the plaintiff could prevail, [the Court] should do so
despite the plaintiff's failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110. However, the Court does not act as an
advocate for a pro se litigant. See id. For the reasons stated below, the Complaint and
the action will be dismissed as legally frivolous.
Ms. Fay generally alleges that Colorado’s permanent mail ballot list is
unconstitutional because the lists are different on the special district and county/state
levels. She fails to allege how she has been injured under the Voting Rights Act. The
act “was designed by Congress to banish the blight of racial discrimination in voting.”
Riley v. Kennedy, 553 U.S. 406, 411 (2008); see also Shelby County, Ala. v. Holder,
133 S. Ct. 2612, 2515, 2652 (2013). Nowhere in the Complaint does Ms. Fay allege the
Colorado ballot list perpetuates discrimination on the basis of race, or that she has been
subjected to racial discrimination in voting. The Complaint and the action will be
dismissed pursuant to § 1915(e)(2)(B) as legally frivolous.
Ms. Fay is warned that the Court can and will impose appropriate sanctions if she
persists in engaging in frivolous lawsuits. “[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.” Tripati v. Beaman, 878 F.2d 351, 353
(10th Cir. 1989) (citations omitted) (per curiam). “Federal courts have the inherent
power to regulate the activities of abusive litigants by imposing carefully tailored
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restrictions in appropriate circumstances.” Andrews v. Heaton, 483 F.3d 1070, 1077
(10th Cir. 2007) (citing Sieverding v. Colo. Bar. Ass’n, 469 F.3d 1340, 1343 (10th Cir.
2006); Tripati v. Beaman, 878 F.2d 351, 351 (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.
Id.
If a pro se party signs a pleading in violation of Fed. R. Civ. P. 11(b) a court “may
. . . impose an appropriate sanction” upon that party. See Fed. R. Civ. P. 11(c). Rule
11 serves several purposes, including, but not limited to, (1) deterring future litigation
abuse; (2) punishing present litigation abuse; and (3) streamlining court dockets and
facilitating case management. White v. General Motors Corp., Inc., 908 F.2d 675, 683
(10th Cir. 1990) (citing American Bar Association, Standards and Guidelines for
Practice Under Rule 11 of the Federal Rules of Civil Procedure (1988), reprinted in, 5 C.
Wright, A. Miller & M. Kane, Federal Practice and Procedure 212, 235-36 (Supp. 1989)).
Deterrence is the primary goal of a sanction. See Cooter & Gell v. Hartmarx Corp., 496
U.S. 384 (1990). In order to comply with Rule 11 and avoid sanctions thereunder, a pro
se party’s actions must be objectively reasonable. White v. Gen. Motors Corp., 908
F.2d 675, 683 (10th Cir. 1990). A pattern of groundless and vexatious litigation will
support an order enjoining a litigant from filing any claims without first seeking prior
leave of court. See Ketchum v. Cruz, 961 F.2d 916, 921 (10th Cir. 1992); Winslow v.
Romer, 759 F. Supp. 670, 677-78 (D. Colo. 1991); Colorado ex rel. Colo. Judicial Dep't
v. Fleming, 726 F. Supp. 1216, 1221 (D. Colo. 1989).
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The Court may, in its discretion, place reasonable restrictions on any litigant who
files non-meritorious actions and who generally abuses judicial process. Phillips v.
Carey, 638 F.2d 207, 209 (10th Cir. 1981). These restrictions may be directed to
provide limitations or conditions on the filing of future suits. Id. Injunctions restricting
further filings are appropriate where (1) the litigant's lengthy and abusive history is set
forth; (2) the court provides guidelines as to what the litigant may do to obtain its
permission to file an action; and (3) the litigant receives notice and an opportunity to
oppose the court’s order before it is implemented. Tripati, 878 F.2d at 353-54. Ms. Fay
has the right to notice and to oppose, in writing, the imposition of future restrictions.
See Tripati, 878 F.2d at 354.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Ms. Fay files a notice of appeal she also must pay the full $505.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 (ECF No. 3) is granted. It is
FURTHER ORDERED that the Complaint (ECF No. 1) and action are dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any other pending motions are denied as moot.
DATED at Denver, Colorado, this

22nd

day of

April

, 2014.

BY THE COURT:

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

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