Fay v. Roberts Jr

Filing 8

ORDER Dismissing Case and Imposing Sanctions. The Complaint (ECF No. 1 ) and action are dismissed. Plaintiff, J M (Maria J) Fay, also known as J M Fay, J.M. Fay, and Maria J. Fay, is enjoined from filing any civil action in the United States Distric t Court for the District of Colorado, in which she is the proponent of a claim, without representation of an attorney licensed to practice in the State of Colorado, unless she first obtains leave of Court by a judicial officer to proceed pro se in the action. Leave to proceed in forma pauperis on appeal is denied. Any pending motions are denied as moot. By Judge Lewis T. Babcock on 6/17/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01275-BNB
J M (MARIA J) FAY, also known as,
J M FAY, also known as,
J. M. Fay, also known as,
MARIA J. FAY,
Plaintiff,
v.
CHIEF JUSTICE JOHN ROBERTS, JR.,
Defendant.

ORDER DISMISSING CASE AND IMPOSING SANCTIONS

Plaintiff, J M (Maria J) Fay, also known as J M Fay, J. M. Fay, and Maria J. Fay,
resides in Denver. She 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 Americans with Disabilities Act (ADA) for injunctive and mandamus relief and money
damages.
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 [or her] confusion of
various legal theories, his [or her] poor syntax and sentence construction, or his [or her]
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. The Court may take judicial

notice of its own records and files that are part of the Court’s public records. See St.
Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979).
Ms. Fay has been 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). For the reasons stated below, the Complaint and the action
will be dismissed as legally frivolous and filing restrictions will be imposed against Ms.
Fay for her repetitive and abusive filings.
On May 8, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 5)
directing Ms. Fay to show cause within thirty days why the Complaint and action should
not be dismissed as legally frivolous and filing restrictions should not be imposed
against her for her repetitive and abusive filings. The May 8 order warned Ms. Fay that
an order enjoining her from filing future pro se pleadings and dismissing this action
would be entered by the Court if she failed to show cause within the time allowed. The
copy of the May 8 order mailed to Ms. Fay was returned to the Court as undeliverable
on May 20, 2014. Ms. Fay has failed to show cause as directed within the time allowed
or otherwise communicate with the Court in any way.
In the instant action, Ms. Fay is suing the Honorable John Roberts, Jr., Chief
Justice of the United States, because she contends she cannot get cases filed or

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papers served by the United States Marshals Service or service waived due to policies
and judges in the federal district and bankruptcy courts in Denver. She asks Chief
Justice Roberts to remove and replace all policies that – and judges who – discriminate
against plaintiffs in Denver federal courts, especially plaintiffs who are low income, pro
se, disabled, in jail, or any combination thereof. She also complains about problems
she has experienced for years in Arapahoe County with the Postal Service refusing to
deliver her mail, and numerous other issues. Plaintiff advises the Court that “due to the
PO refusing to deliver the mail to the plaintiff; this court has only the ability to notify the
plaintiff via email.” ECF No. 1 at 5. However, Ms. Fay failed to identify any Local Rule
of Practice or other authority for this Court to communicate with her via email, and the
Court is not aware of any. Therefore, the request to communicate with Ms. Fay by
email was denied.
The ADA’s applicability to the Complaint is not apparent. Title II of the ADA,
which prohibits discrimination based on disability in the availability of services,
programs, or activities of a public entity, is not applicable to the federal government.
Cellular Phone Taskforce V. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000); see also 42 U.S.C.
§ 12131(1) (“The term ‘public entity’ means . . . any State or local government” or “any

department, agency, special purpose district, or other instrumentality” thereof). The
ADA does not appear to be the proper jurisdictional basis for this lawsuit. Rather,
Plaintiff appears to be seeking relief in the nature of mandamus.
Pursuant to 28 U.S.C. § 1361, the district courts have original jurisdiction over
any action in the nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff. The common-law

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writ of mandamus, as codified in § 1361, is intended to provide a remedy for a plaintiff
only if he or she has exhausted all other avenues of relief and only if the defendant
owes him or her a clear nondiscretionary duty. Heckler v. Ringer, 466 U.S. 602, 616
(1984); see also Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (mandamus
will “issue only to compel the performance of a clear nondiscretionary duty.”)
“Mandamus is a drastic remedy, available only in extraordinary circumstances.
Furthermore, the writ is not available when review by other means is possible.” W.
Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1059 (10th Cir. 1993) (citations
omitted). “To grant mandamus relief, the court must find (1) a clear right in the plaintiff
to the relief sought; (2) a plainly defined and preemptory duty on the part of the
defendant to do the action in question; and (3) no other adequate remedy is available.”
Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988).
In the instant action, Ms. Fay has not presented the Court with an extraordinary
situation mandating mandamus relief. She has no clear right to the relief sought, the
named Defendant does not owe her a clear nondiscretionary duty, and she does not
allege that no other adequate remedy is available. Therefore, the Complaint and the
action will be dismissed pursuant to § 1915(e)(2)(B) as legally frivolous.
Ms. Fay is no stranger to this Court. She has initiated twenty-two civil actions in
this Court since 1997, including the instant action, as follows:
1.
Fay v. Equal Emp’t Opportunity Comm’n [EEOC], No. 97-cv-00819-ABJ
(D. Colo. June 25, 1998), ADA lawsuit dismissed on motion to dismiss.
2.
Fay v. Denver Dist. Court, No. 97-cv-00940-ABJ-BNB (D. Colo. June 25,
1998), ADA lawsuit dismissed without prejudice for failure to prosecute.
3.
Fay v. Denver Police Dep’t, No. 97-cv-01650- ABJ (D. Colo. Oct. 8, 1998),
ADA lawsuit dismissed.
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4.
Fay v. Colo. Admin. Law Offices, Exec. Dep’t, No. 00-cv-01358-ZLW (D.
Colo. June 13, 2001), ADA lawsuit dismissed without prejudice for failure to
prosecute.
5.
Fay v. U.S. Postal Serv., No. 00-cv-02323-REB-PAC (D. Colo. June 25,
2002), 42 U.S.C. § 1983 dismissed on motion to dismiss.
6.
Fay v. United Parcel Serv., No. 01-cv-00251-ZLW-PAC (D. Colo. Sept. 4,
2001), EEOC lawsuit dismissed for failure to prosecute.
7.
Fay v. United Parcel Serv., No. 02-cv-01245-ZLW-PAC (D. Colo. May 6,
2003), appeal dismissed for lack of prosecution, No. 03-1238 (10th Cir. Nov. 3,
2003). ADA lawsuit dismissed for failure to comply with order to show cause.
8.
Fay v. Denver Newspaper Agency, No. 03-cv-01685-REB-BNB (D. Colo.
July 16, 2004), ADA lawsuit dismissed for lack of prosecution.
9.
Fay v. Hunter’s Run Condominium Assoc., No. 03-cv-01686-REB-PAC (D.
Colo. May 13, 2004), 28 U.S.C. § 1331 federal question lawsuit dismissed
without prejudice.
10.
Fay v. U.S. Dep’t of Justice, No. 04-cv-00952-ZLW (D. Colo. Sept. 21,
2004), ADA lawsuit dismissed without prejudice for Plaintiff’s failure to prosecute.
11.
Fay v. Dep’t of Housing & Urban Dev., No. 04-cv-00953-ZLW (D.
Colo. Sept. 21, 2004), ADA lawsuit dismissed without prejudice for failure
to prosecute.
12.
Fay v. Arapahoe Cnty., No. 06-cv-02592-WDM-MEH (D. Colo. Oct. 29,
2007), lawsuit pursuant to the ADA and possibly 42 U.S.C. § 1983 dismissed on
motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim.
13.
Fay v. Hunter’s Run Condominium Assoc., No. 06-cv-02593-DME-MEH
(D. Colo. June 25, 2007), ADA lawsuit dismissed without prejudice.
14.
Fay v. Colorado, No. 12-cv-03051-LTB (D. Colo. Jan. 22, 2013), ADA
lawsuit dismissed without prejudice for failure to cure and to prosecute.
15.
Fay v. Colorado, No. 12-cv-03334-LTB (D. Colo. Feb. 7, 2013), ADA
lawsuit dismissed without prejudice for failure to cure deficiencies.
16.
Fay v. Colorado, No. 13-cv-01164-LTB (D. Colo. June 13, 2013), ADA
lawsuit dismissed without prejudice for failure to file an amended Complaint that
complied with Fed. R. Civ. P. 8 and for failure to prosecute.

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17.
Fay v. Colorado, No. 13-cv-01165-LTB (D. Colo. July 19, 2013), ADA
lawsuit dismissed without prejudice for failure to file an amended Complaint that
complied with Fed. R. Civ. P. 8 and for failure to prosecute.
18.
Fay v. U.S. Dist. Court, No. 13-cv-03115-LTB (D. Colo. Nov. 20, 2013),
ADA lawsuit dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous
and for seeking monetary relief against Defendants immune from such relief.
19.
Fay v. U.S. Dist. Court, No. 14-cv-01089-LTB (D. Colo. Apr. 18, 2014),
ADA lawsuit dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous
and for seeking monetary relief against Defendants immune from such relief.
Plaintiff is warned the Court may impose appropriate sanctions if she persists in
engaging in frivolous lawsuits against individuals and entities immune from suit.
20.
Fay v. Colorado, No. 14-cv-01090-LTB (D. Colo. Apr. 18, 2014 (D. Colo.
Apr. 22, 2014), Voting Rights Act lawsuit dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) as legally frivolous. Plaintiff is warned the Court may impose
appropriate sanctions if she persists in engaging in frivolous lawsuits.
21.
Fay v. U.S. Postal Serv., No. 14-cv-01093-LTB (D. Colo. Apr. 22, 2014),
ADA lawsuit dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous.
Plaintiff is warned the Court may impose appropriate sanctions if she persists in
engaging in frivolous lawsuits.
22.
Fay v. Roberts, No. 14-cv-01275-BNB (D. Colo. filed May 6, 2014),
pending ADA lawsuit. Plaintiff is warned the Court may impose appropriate
sanctions if she persists in engaging in frivolous lawsuits.
In nine of these actions, Ms. Fay failed to prosecute. One of the nine actions
also was dismissed for failure to cure. In two of the nine actions, Ms. Fay was unable to
file a complaint that complied with the pleading requirements of Fed. R. Civ. P. 8.
Another action was dismissed for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6). Four actions have been dismissed pursuant to 28 U.S.C. § 1915 as legally
frivolous, two of which also were dismissed for seeking monetary relief against
defendants immune from such relief. In three of the actions dismissed as legally
frivolous and again in the instant action, Ms. Fay was warned that the Court may
impose appropriate sanctions if she persists in engaging in frivolous lawsuits. In her

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lawsuits, Ms. Fay has used several different names, each of which is listed in the
caption to this order.
Despite the Court's repeated efforts to allow Ms. Fay to proceed pro se, she is
unable to represent herself properly. Ms. Fay previously was warned that the Court has
the power to enjoin litigants who abuse the judicial system. See Tripati v. Beaman, 878
F.2d 351 (10th Cir. 1989) (per curiam). The Court will not tolerate abuse of its limited
judicial resources by pro se litigants.
“[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.” Id. at 353 (citation omitted). “Federal courts have the inherent
power to regulate the activities of abusive litigants by imposing carefully tailored
restrictions in appropriate circumstances.” Andrews v. Heaton, 483 F.3d 1070, 1077
(10th Cir. 2007); Tripati, 878 F.2d at 351.
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.
Sanctions may be imposed under Fed. R. Civ. P. 11(c), even against a pro se
plaintiff, if a pleading or other paper lacks “claims, defenses, and other legal contentions
. . . warranted by existing law” and the “factual contentions” lack “evidentiary support.”
See Fed. R. Civ. P. 11(b) (imposing same standard on both attorneys and
“unrepresented part[ies]).” Rule 11 serves several purposes, including, but not limited

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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, 908 F.2d at 683. A pattern of
groundless and vexatious litigation will justify 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).
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
was provided with notice and the opportunity to oppose, in writing, the imposition of

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future restrictions. See Tripati, 878 F.2d at 354.
The Court has reviewed all the cases Ms. Fay has filed in this Court, and finds
that Ms. Fay is not capable of proceeding pro se in litigation in this Court. While this
Court has an obligation to give pro se litigants wide latitude, see Haines, 404 U.S. at
519, the Court cannot accept the filing of repetitious, meritless lawsuits. As noted
above, Ms. Fay was given an opportunity to oppose imposition of filing restrictions
before they may be implemented. She was warned that if she failed to show good
cause within the time allowed, the filing restrictions would be imposed. Ms. Fay has
failed to show cause as directed or otherwise communicate with the Court in any way.
The Court finds that Ms. Fay's abusive history of filing actions demonstrates that
imposition of filing restrictions is appropriate. The Court will prohibit Ms. Fay from filing
new actions in the United States District Court for the District of Colorado without the
representation of a licensed attorney admitted to practice in the United States District
Court for the District of Colorado unless she obtains permission to proceed pro se. In
order to obtain permission to proceed pro se, Ms. Fay will be directed to take the
following steps:
1.
File with the clerk of this Court a motion requesting leave to file a
pro se action.
2.
Include in the motion requesting leave to file a pro se action the
following information:
A.
A list of all lawsuits currently pending or filed previously in
the District of Colorado, including the name, number, and citation, if
applicable, of each case, and the current status or disposition of each
case; and
B.
A statement of the legal issues to be raised in the proposed
new pleading and whether she has raised the same issues in other
proceedings in the District of Colorado. If so, she must cite the
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case number and docket number where the legal issues previously
have been raised.
3.

Submit the proposed new pleading to be filed in the pro se action.

The motion requesting leave to file a pro se action and the proposed new
pleading shall be submitted to the clerk of the Court, who shall forward them to the
judicial officer designated by the Chief Judge pursuant to D.C.COLO.CivR 8.1(a) for
review. If the motion requesting leave to file a pro se action is denied, the matter will be
dismissed. If the motion requesting leave to file a pro se action is granted, the case will
proceed in accordance with the Federal Rules of Civil Procedure and the Local Rules of
Practice of the United States District Court for the District of Colorado-Civil.
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 Complaint (ECF No. 1) and action are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B) as legally frivolous. It is
FURTHER ORDERED that Plaintiff, J M (Maria J) Fay, also known as J M Fay, J.
M. Fay, and Maria J. Fay, is enjoined from filing any civil action in the United States
District Court for the District of Colorado, in which she is the proponent of a claim,
without representation of an attorney licensed to practice in the State of Colorado,
unless she first obtains leave of Court by a judicial officer to proceed pro se in the action
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as discussed in this order. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 17th

day of

June

, 2014.

BY THE COURT:

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

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