Cross, Jr. v. Leyba et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/20/15. 46 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is granted, and Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 2 and 20 are denied. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02948-GPG
ELMER L. CROSS, JR.,
SHERIFF’S DEPUTY LEYBA,
SHERIFF’S DEPUTY JONES,
SHERIFF’S DEPUTY ARELLANO,
SHERIFF’S DEPUTY MARTINEZ,
SHERIFF’S DEPUTY HARRIS,
SHERIFF’S DEPUTY SYKES,
SHERIFF’S DEPUTY NORCROSS,
SHERIFF’S DEPUTY SWAN, and
SHERIFF’S DEPUTY SPROCK,
ORDER OF DISMISSAL
Plaintiff, Elmer L. Cross, Jr., currently resides in Denver, Colorado. When he
initiated this action on October 30, 2014 by submitting pro se a Prisoner Complaint
(ECF No. 1) pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, he was an inmate
incarcerated at the Denver County Jail.
On November 4, 2014, Magistrate Judge Boyd N. Boland entered an order
directing Mr. Cross to submit a certified copy of his prison trust fund statement for the
six-month period immediately preceding the filing of the Complaint. After being granted
three extensions of time and filing numerous documents that did not comply with the
November 4 Order, Plaintiff filed, on January 27, 2015, a Prisoner’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 46), but stated that prison
officials would not provide him with a certified copy of his account statement. Shortly
thereafter, Mr. Cross notified the Court that he was released from custody on January
26, 2015 and currently resides at St. Francis Center, 2323 Curtis Street, Denver,
Colorado 80205. Although Mr. Cross is no longer a prisoner, the Court will not require
him to submit on the court-approved form an Application to Proceed in District Court
Without Prepaying Fees or Costs, the in forma pauperis form to be used by
nonprisoners. Instead, the Court grants the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 46) filed on January 27, 2015 based
on an inability to prepay fees or give security therefor.
The Court must construe the Complaint liberally because Mr. Cross 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 should not act as an
advocate for a pro se litigant. See id.
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 claim is frivolous if it “lacks an arguable
basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A legally
frivolous claim rests on “an indisputably meritless legal theory,” such as a claim that a
non-existent legal interest has been infringed. Id. at 327. For the reasons stated below,
the Complaint and the action will be dismissed as frivolous.
In the Complaint, Mr. Cross begins by providing a five-page narrative about how
he has been targeted for the past seven years by an “unknown-unnamed Federal
Agency” that has been “lacing/poisoning me with genetically modified chemicals” in
California, New Mexico, and Arizona. (See ECF No. 1 at 5-9). Mr. Cross then asserts
the following three claims: (1) “aggravated attempted murder in the first degree by
poisoning/lacing/cruel and unusual punishment” against Defendants Norcross and
Swan; (2) “aggravated attempted murder in the first degree by poisoning/lacing and
cruel and unusual punishment” against Defendants Harris, Sykes, Sprock, Jones,
Arellano, Martinez, Swan, Leyba, and Norcross; and (3) obstruction of justice. (Id. at
10-13). In support of these claims, Mr. Cross alleges that while incarcerated at the
Denver County Jail, Defendants Norcross and Swan “are part of such a sick, twisted,
diabolical campaign against me that they purposly [sic] and deliberaltly [sic] lace/poison
the toilet paper.” (Id. at 10). He further alleges that Defendants have provided him with
poisoned request forms, grievances, pencils, and other objects resulting in “a salty,
metallic taste in my mouth and then an instant migraine and burning skin.” (Id. at 1011). Mr. Cross also alleges that Defendants whistle at him “24/7" as an “aggitation [sic]
tactic.” (Id. at 11). He finally alleges that all fourth floor prison officers are “committing
obstruction of justice (as are everyone who works in this facility and as are the entire
legal establishment of Denver, Co) (the D.A.’s, The Judges, the public defenders) by
directly participating and through the code of silence.” (Id. at 12). He seeks money
damages as well as the “resignations/dismissals, their arrests, prosecutions and
jailing/prison” of Defendants. (Id. at 14).
The Court finds that the Complaint is deficient for the same reasons the Court
dismissed Plaintiff’s claims in Cross v. City of Denver, et al., No. 14-cv-02793-LTB (D.
Colo. Oct. 10, 2014) and in Cross v. Sargent Koch, et al., No. 14-cv-02923-LTB (D.
Colo. Oct. 28, 2014) as frivolous under § 1915(e)(2)(B). In both No. 14-cv-2793-LTB
and No. 14-cv-2923-LTB, Mr. Cross made virtually identical allegations and claims
against Defendant City and County of Denver and individual prison officials at the
Denver County Jail and sought the same relief. For example, Mr. Cross alleged in the
other two cases that:
for the past seven years an “unknown-unnamed Federal Agency”
has “laced/poisoned” his personal property in California, New
Mexico, and Arizona;
while incarcerated at the Denver County Jail from May 2014 until
January 2015, his indigent packages, personal belongings, and
medications were laced with poison that caused migraines, burning
skin, numbness, loss of circulation in arms and hands, jaw pain, and
a “metallic, salty taste in my mouth;”
Defendants “purposly [sic] and knowingly created a very dangerous
and life-threatening environment for me by constantly aggitating [sic]
and harassing me and using inmate informants/rats against me in
every pod/unit that I moved to leaving me no choice but to isolate
Defendants spread the “diabolical poison over my jumpsuits and
“Everyone who works at the [Denver County Jail] is committing
intentional obstruction of justice through willful, intentional complicity
through the code of silence;” and
“the unit officers are lacing request forms, pencils, medical kites,
(See No. 14-cv-02793-LTB, ECF No. 88 at 3-13; No. 14-cv-02923-LTB, ECF No.
1 at 5-17).
In No. 14-cv-2793-LTB, the Court provided Mr. Cross with an opportunity to
amend his complaint and found that the Amended Complaint still failed to comply with
Rule 8 of the Federal Rules of Civil Procedure, lacked any allegations that any alleged
constitutional violations were taken pursuant to an official municipal policy or custom,
and that the claims were factually frivolous because they rested on “fantastic or
delusional scenarios” whose factual contentions “rise to the level of the irrational or the
wholly incredible.” (See No. 14-cv-02793-LTB, ECF No. 90).
In No. 14-cv-2923-LTB, the Court found that the case was duplicative of No. 14cv-2793-LTB because the claims, parties, and available relief did not significantly differ
between the two actions. The Court further found that the claims did not comply with
the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, did not
allege facts that demonstrated how each named defendant personally participated in
the asserted constitutional violations, and were factually frivolous because they rested
on “fantastic or delusional scenarios” whose factual contentions “rise to the level of the
irrational or the wholly incredible.” (See No. 14-cv-02923-LTB, ECF No. 47).
After reviewing the Complaint in the instant action, the Court finds that this case
also appears to be duplicative of No. 14-cv-2793-LTB and No. 14-cv-2923-LTB because
the claims, parties, and available relief do not significantly differ between the two
actions. See Park v. TD Ameritrade Trust Co., Inc.,, 461 Fed. App’x. 753, 755 (10th Cir.
Feb. 14, 2012). The Court further finds that Plaintiff’s claims (1) are vague, conclusory,
and rambling; (2) do not comply with the pleading requirements of Rule 8 of the Federal
Rules of Civil Procedure; and (3) do not allege facts that demonstrate how each named
defendant personally participated in the asserted constitutional violations. At best, the
Complaint is a verbose diatribe that makes little sense, fails to articulate the specific
claims Mr. Cross is asserting, and fails to allege what each Defendant did that allegedly
violated his rights.
Moreover, the Court finds that the claims are factually frivolous. A claim is
factually frivolous if it depicts “fantastic or delusional scenarios,” Neitzke, 490 U.S. at
328, or where “the facts alleged rise to the level of the irrational or the wholly incredible.”
Denton v. Hernandez, 504 U.S. 25, 33 (1992). The Court finds that Plaintiff’s claims
rest on “fantastic or delusional scenarios” whose factual contentions “rise to the level of
the irrational or the wholly incredible.” See Neitzke, 490 U.S. at 327-28; Denton, 504
U.S. at 33. Thus, the claims are baseless and Mr. Cross is not entitled to relief in this
action. The Complaint and the action will be dismissed as frivolous under §
The Court also warns Mr. Cross for a second time that “the 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 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 at 352).
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.
Andrews, 483 F.3d at 1077.
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).
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. Mr.
Cross 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 28 U.S.C. § 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 Mr. Cross files a notice of appeal he must also pay the full $505 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 the action are dismissed as
frivolous under § 1915(e)(2)(B). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 46) is granted and the Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF Nos. 2
and 20) are denied. It is
FURTHER ORDERED that all other pending motions are denied as moot.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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