Cross, Jr. v. Decker et al

Filing 36

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/4/15. 35 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is granted. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03391-GPG
ELMER L. CROSS, JR.,
Plaintiff,
v.
SHERIFF’S DEPUTY DECKER,
SHERIFF’S DEPUTY GARCIA,
SHERIFF’S DEPUTY MCDONALD, and
SARGENT SHANNON,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Elmer L. Cross, Jr., currently resides in Denver, Colorado. When he
initiated this action on December 16, 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 December 16, 2014, Magistrate Judge Gordon P. Gallagher entered an order
directing Mr. Cross to submit on the court-approved form a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a certified copy of his
prison trust fund statement for the six-month period immediately preceding the filing of
the Complaint. After being granted an extension of time and filing numerous documents
that did not comply with the December 16 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. 35), 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. 35)
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.
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In the Complaint, Mr. Cross asserts that “[t]his lawsuit #9 is in response to not
only the continued lacing/poisoning and Officers instigating and encouraging inmates to
harass/aggitate [sic] me but also the escalation of it all.” (ECF No. 1 at 1). He also
asserts that “[f]or 7 years some unknown Federal Agency has been lacing and
poisoning me with genetically modified chemicles [sic] designed to affect only my DNA”
and that “[t]he Feds have been supplying the poison to Sheriff’s Deputies, C.O.’s and
even to civillians [sic] (nurses, commissary employees) while I’m in jail to do their dirty
work for them to poison me.” (Id. at 3). In support of claim one (“aggravated attempted
murder in the 1st degree by lacing/poisoning and willfull [sic] intentional infliction of
psychological, emotional and physical suffering / cruel and unusual punishment”), Mr.
Cross alleges that Defendant Decker “stands right in front of my cell and purposly [sic]
starts ‘whistling’ in order to send a signal to 2 other inmates that it’s o.k. for them to
continue keeping me and other inmates up all night ‘whistling’ at the top of their lungs.”
(Id. at 4). He also alleges that Defendant Decker and Officer Jackman are “willingly
spreading poison all over this unit 3D.” (Id. at 5). In support of claim two (“willfull [sic]
intentional obstruction of justice complicity in lacing/poisoning through code of silence”),
Mr. Cross asserts that Defendant Garcia did not provide him with “complete § 1983
forms to cure deficiencies and to amend in my previous lawsuits.” (Id. at 6). He also
alleges that Defendant Shannon ignored Mr. Cross’ requests to mail copies of his legal
documents. (Id.). In support of claim three (“aggravated attempted murder in the 1st
degree by poisoning/lacing and cruel and unusual punishment and complicity in coverup”), Mr. Cross alleges that Defendant McDonald gave him “laced/poisoned” sack
lunches on four occasions. (Id. at 7). He seeks money damages and “the firing,
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resignations, arrests, prosecutions and jailing/prison of all defendants.” (Id. at 10).
As Mr. Cross acknowledges, this is the ninth lawsuit he has filed in this Court
concerning his belief that he is being poisoned by prison officials who allegedly are
acting at the direction of an “unknown/unnamed Federal Agency.” See Cross v. City of
Denver, et al., 14-cv-02793-LTB (D. Colo. Oct. 10, 2014) (dismissed with prejudice as
frivolous); Cross v. Dr. Crum, et al., No. 14-cv-02805-LTB (D. Colo. Oct. 14, 2014)
(dismissed for failure to comply with Court order to file an amended complaint and for
failure to prosecute); Cross v. City of Denver, et al., 14-cv-02872-LTB (D. Colo. Oct. 21,
2014) (dismissed for failure to comply with Court order to show cause why the action
should not be dismissed as duplicative of No. 14-cv-02793-LTB); Cross v. Aramark
Corp., et al., 14-cv-02902-GPG (D. Colo. Oct. 24, 2014) (currently pending); Cross v.
Sargent Koch, et al., No. 14-cv-02923-LTB (D. Colo. Oct. 28, 2014) (dismissed with
prejudice as frivolous); Cross v. Sheriff’s Deputy Leyba, et al., No. 14-cv-02948-LTB (D.
Colo. Oct. 30, 2014) (dismissed with prejudice as frivolous); Cross v. Sheriff’s Deputy
Leyshon, et al., No. 14-cv-03274-LTB (D. Colo. Dec. 2, 2014) (dismissed with prejudice
as frivolous); Cross v. Dr. Sachs, et al., No. 14-cv-3275-LTB (D. Colo. Dec. 2, 2014)
(dismissed with prejudice as frivolous). Plaintiff persists in bringing multiple lawsuits
arising out of the same set of circumstances. While Plaintiff’s claims have to some
extent evolved with each new lawsuit, his cases all stem from the underlying belief that
he is the target of a seven-year campaign of “poisoning” and “harassment / aggitation /
defaming / isolating and ostracizing.”
After reviewing the Complaint in the instant action, the Court finds that this case
is repetitive of the other cases Mr. Cross has filed because the claims, parties, and
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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).
However, the Complaint and action will not be dismissed for that reason.
The Court further finds that Plaintiff’s claims do not comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and are vague,
conclusory, and rambling. 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. Thus, even construing the
Complaint liberally, Mr. Cross fails to provide a short and plain statement of any
cognizable § 1983 claim for the alleged “lacing/poisoning.”
Moreover, to the extent Mr. Cross is asserting a claim for retaliation against
certain prison officials, this claim also fails. Prison officials may not retaliate against an
inmate for exercising his constitutional rights. See Peterson v. Shanks, 149 F.3d 1140,
1144 (10th Cir. 1998). To state a retaliation claim, Mr. Cross must demonstrate that:
(1) he was engaged in constitutionally protected activity, (2) Defendant’s actions caused
him to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity, and (3) Defendant’s adverse action was substantially motivated
as a response to Plaintiff’s constitutionally protected activity. See Allen v. Avance, 491
Fed. App’x 1, 6 (10th Cir. 2012). Under the third prong, Mr. Cross must demonstrate
that the “alleged retaliatory motives were the ‘but for’ cause of the defendants’ actions.”
Peterson, 149 F.3d at 1144. “Mere allegations of constitutional retaliation will not
suffice; plaintiffs must rather allege specific facts showing retaliation because of the
exercise of the prisoner’s constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562
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n.1 (10th Cir. 1991).
Mr. Cross’ vague and conclusory assertions that Defendants are retaliating
against him for filing lawsuits by “whistling” at him do not allege a plausible retaliation
claim because they do not allege that (I) Defendants’ actions would chill a person of
ordinary firmness from continuing to engage in that activity; and (ii) Defendant’s motives
were the “but for” cause of their actions. As a result, Mr. Cross fails to provide a short
and plain statement of his claims that demonstrate he is entitled to relief in this action as
required by Rule 8.
The general rule that pro se pleadings must be construed liberally has limits and
“the court cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005); see also United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”);
Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory
allegations that his rights have been violated does not entitle a pro se pleader to a day
in court regardless of how liberally the pleadings are construed), aff’d, 961 F.2d 916
(10th Cir. 1992). “[I]n analyzing the sufficiency of the plaintiff’s complaint, the court
need accept as true only the plaintiff’s well-pleaded factual contentions, not [her]
conclusory allegations.” Hall, 935 F.2d at 1110. Because Mr. Cross fails to provide a
clear and concise statement of the claims he is asserting, the Court finds that the
Complaint fails to comply with Rule 8.
Moreover, the Court further finds that the claims are factually frivolous. A claim is
factually frivolous if it depicts “fantastic or delusional scenarios,” Neitzke, 490 U.S. at
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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 §
1915(e)(2)(B).
The Court also warns Mr. Cross for a fifth 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©. 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
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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
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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. 35) is granted. It is
FURTHER ORDERED that all other pending motions are denied as moot.
DATED at Denver, Colorado, this 4th

day of

March

, 2015.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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