Vianez v. USA

Filing 7

Imposition of Filing Restrictions by Judge Lewis T. Babcock on 8/12/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01363-LTB
JUAN VIANEZ,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant.

IMPOSITION OF FILING RESTRICTIONS

On July 1, 2014, the Court ordered Plaintiff, Juan Vianez, to respond and show
cause within thirty days why he should not be enjoined from proceeding as a plaintiff in
an original proceeding, unless he submits a completed Court-approved prisoner
complaint form and either pays the $400 filing fee for a complaint or a $5 filing fee for a
habeas, or requests leave to proceed pursuant to 28 U.S.C. § 1915 on a form that is
approved by this Court and is applicable to the action being filed, and attaches a
certified account statement. On July 30, 2014, Plaintiff filed a twenty-five page pleading
titled “Objection to Dismissal Quod Permittent.” The pleading objects to the dismissal of
this case and includes a complaint and 28 U.S.C. § 1915 motion that are not on proper
Court-approved forms, and two filings that appear to address other cases Plaintiff has
filed in this Court. The Court construes the pleading in part as a Motion to Reconsider
the dismissal and in part as a Response to the July 1 Order to Show Cause.
The Court first will address Plaintiff’s Motion to Reconsider the dismissal. A
litigant subject to an adverse judgment who seeks reconsideration by the district court of

that adverse judgment may “file either a motion to alter or amend the judgment pursuant
to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment pursuant to Fed. R.
Civ. P. 60(b).” Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991). A
motion to alter or amend the judgment must be filed within twenty-eight days after the
judgment is entered. See Fed. R. Civ. P. 59(e). The Court will consider Plaintiff’s
Motion pursuant to Rule 59(e) because it was filed within twenty-eight days after the
dismissal was entered in this action on July 1, 2014. See Van Skiver, 952 F.2d at 1243
(stating that a motion to reconsider should be construed as filed pursuant to Rule 59(e)
when it is filed within the ten-day limit (limit effective prior to December 1, 2009) set forth
under Rule 59(e)).
The three major grounds that justify reconsideration are: (1) an intervening
change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. Id. (citing
Van Skiver, 952 F.2d at 1243).
In the Motion, Plaintiff contends that (1) he was not provided with the Court’s
documentation; (2) he does not have any law books; (3) he does not waive his right to
use the prison computer; (4) he is a victim of many kidnappings; and (5) prison staff has
a history of “not providing inmates with proper facility,” e.g. access to the law library.
Plaintiff further contends that the Court has not determined his cases are frivolous and
refuses to recognize his “Declaration of forma pauperis statuse [sic],” so that he may
proceed pursuant to § 1915. Finally, Plaintiff asserts that he did not file a civil suit in this
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case and has provided all the information the Court needs to proceed with his 28 U.S.C.
§ 2241.
Nothing Plaintiff asserts supports a finding by this Court that the July 1, 2014
dismissal should be reconsidered. First, Plaintiff’s claim that the Court failed to provide
documents to him, apparently Court-approved forms, is meritless. In the May 20, 2014
Order to Cure Deficiencies, Plaintiff was directed to obtain Court-approved forms, with
the assistance of his case manager or a prison legal assistant, from this Court’s website
at www.cod.wusourts.gov. Plaintiff does not assert that he requested the forms from
prison staff that he needs to file an action in this Court and his request was denied. The
only claim he asserts in the Motion to Reconsider is that he is denied access to the law
library. Furthermore, only after the Court has entered an order dismissing this action
and directing Plaintiff to show cause why he should not be sanctioned does he claim he
does not have access to court-approved forms.
Plaintiff has had sufficient opportunity in this case, and in the other cases he filed
in this Court that he also failed to submit his claims and a request to proceed pursuant
to 28 U.S.C. § 1915 on Court-approved forms, to inform the Court he was unable to
obtain the forms he needs to comply with the Court’s orders. Plaintiff’s claims are
incredible and do not support a finding that the dismissal order should be reconsidered.
Second, Plaintiff has failed to file any document in any of his cases in this Court
that address his inability to pay. Plaintiff’s claim that the Court fails to recognize his
declaration of forma pauperis status is meritless. Plaintiff, however, did not file a
declaration in this action. Nonetheless, Plaintiff’s declaration would not have been
considered by the Court unless it was presented to the Court on a Court-approved form.
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Pursuant to D.C.COLO.L.CivR 5.1(c), a pro se party shall use the forms established by
the Court to file a pleading. Federal Rule Civil Procedure 83(a)(2) allows a federal
district court’s local rules to be enforced.
Third, the complaint form and the § 1915 form Plaintiff has included with the
Motion to Reconsider are not on Court-approved forms. They also are not submitted
within the time allowed, and the claims stated in the complaint are prolix, vague, and
unintelligible.
A pro se pleading is held to a less stringent standard than those drafted by
attorneys," Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but, a plaintiff’s pro
se status does not entitle him to an application of different rules, see Montoya v. Chao ,
296 F.3d 952, 958 (10th Cir. 2002). Plaintiff is responsible for the management of his
cases and proper processing of his filings. The Court, therefore, will deny Plaintiff’s
Motion because he fails to demonstrate that the Court misapprehended the facts, his
position, or the controlling law and that reinstatement of this action is deserving.
The Court also has reviewed the Response. Plaintiff’s Response is conclusory
and vague. Nothing he asserts addresses why he should not be subject to filing
restrictions based on the findings in the July 1, 2014 Order. This Court agrees with
Magistrate Judge Boland that because Plaintiff has been directed in each of the six
actions he now has filed in this Court that he must file his complaint on a Courtapproved form and submit either a request to proceed pursuant to 28 U.S.C. § 1915 or
pay the filing fee in full, but yet has failed to comply, he either is incapable of complying
with this Court’s order or is maliciously and purposely filing nonsensical pleadings in an
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attempt to abuse the federal judiciary system. Whether he is incapable or malicious,
Plaintiff’s refusal to comply with Court directives to utilize Court-approved forms is
abusive.
“[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 under 28 U.S.C.
§ 1651(a) to regulate the activities of abusive litigants by imposing carefully tailored
restrictions in appropriate circumstances.” See 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, 878 F.2d at 351. “There is strong precedent establishing the inherent
power of federal courts to regulate the activities of abusive litigants by imposing
carefully tailored restrictions under the appropriate circumstances,” Cotner v. Hopkins,
795 F.2d 900, 902 (10th Cir. 1986), and “where, as here, a party has engaged in a
pattern of litigation activity which is manifestly abusive, restrictions are appropriate,” In
re Winslow, 17 F.3d 314, 315 (10th Cir. 1994).
Filing restrictions, therefore, are appropriate in this case, as provided for in
Tripati, 878 F.2d at 351. Plaintiff has a lengthy and abusive history, and the Court has
provided a guideline to him to obtain permission to file civil actions in this Court, of
which he received notice and an opportunity to oppose before it is implemented. Tripati,
878 F.2d at 353-54.
Therefore, it is ORDERED that to obtain permission to proceed pro se, Plaintiff
must take the following steps:
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1. File a motion titled, “Motion Pursuant to Court Order Seeking Leave to
File a Pro Se Action;”
2. Attach to the Motion a copy of the injunction that imposes these
recommended filing restrictions;
3. Attach to the Motion a completed Court-approved prisoner complaint or
habeas form and either pay the $400 filing fee for a complaint or a $5 filing
fee for a habeas, or in the alternative submit a request to proceed
pursuant to 28 U.S.C. § 1915 on a form that is approved by this Court and
applicable to the action being filed, and attach a certified inmate account
statement as required;
4. Attach a list of all prisoner complaints and 28 U.S.C. § 2241 actions
Plaintiff currently has pending or has filed in all federal district courts;
5. Attach a notarized affidavit that certifies Plaintiff has not presented the
same claims in another federal district court, that the claims are not
frivolous or taken in bad faith, that the lawsuit is not interposed for any
improper purpose to harass or cause unnecessary delay, and that the
filling complies with this injunction, the Fed. R. Civ. P. 8, all other
provisions of the Federal Rules of Civil, and the Local Rules of Practice of
the United States District Court for the District of Colorado.
It is FURTHER ORDERED that this Court has the power to impose still further
sanctions such as costs, attorney fees, and double costs for the filing of frivolous
actions, as well as an outright ban on certain proceedings, whether pro se or counseled.
Fed. R. Civ. P. 11. Based on Plaintiff’s continuing vexatious litigation, and the Court’s
need to deter repetition of his conduct, see Rule 11(c)(4), the Court will assess Plaintiff
a $400 monetary sanction and strike the filings if he submits any future filings that do
not comply with these restrictions. It is

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FURTHER ORDERED that any case transferred to this Court from another
federal court because venue is proper in this Court also will be ordered stricken and a
monetary sanction of $400 assessed against Plaintiff. It is
FURTHER ORDERED that Plaintiff’s construed Motion to Reconsider, ECF No.
6, is denied.
DATED at Denver, Colorado, this 12th

day of

August

, 2014.

BY THE COURT:

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

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