Sevier et al v. Hickenlooper et al
ORDER on Pending Filings and Case Procedures. Each of Plaintiff Seviers and Plaintiff Gunter's Objections pursuant to Fed. R. Civ. P. 72 (ECF Nos. 32 , 40 , 50 , 53 ) is OVERRULED; Plaintiffs Sevier, Gunter, and Harley's pending Motions for Summary Judgment (ECF Nos. 51 , 52 , 56 ) are STRICKEN. ORDERED by Judge William J. Martinez on 09/29/2017. (angar, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1750-WJM-NYW
JOAN GRACE HARLEY,
JOHN GUNTER, JR., and
JOHN HICKENLOOPER, in his Official Capacity as Governor of Colorado,
CYNTHIA COFFMAN, in her Official Capacity as Attorney General,
MATT CRANE, in his Capacity as Supervisor Marriage License and County Recorder
of Arapahoe County,
STACY WORTHINGTON, in her Capacity as Assistant Attorney General in Colorado,
AUBREY ELENIS, Director of the Colorado Civil Rights Division,
ORDER ON PENDING FILINGS AND CASE PROCEDURES
Now before the Court are: (1) the Motion for Reconsideration Pursuant to Fed. R.
Civ. P. 72 filed by Plaintiff Chris Sevier (ECF No. 40 (“Plaintiff Sevier’s Objection”)); (2)
the pleading titled “Plaintiff Gunter Moving to Supplement the Record,” filed by Plaintiff
John Gunter, Jr. (ECF No. 32 (“Plaintiff Gunter’s Objection”));1 (3) Plaintiff Gunter’s
Joinder in Plaintiff Sevier’s Objection (ECF No. 50); (4) Plaintiff Sevier’s additional Fed.
Given its content, the Court construes ECF No. 32 as an Objection to the same Minute
Order entered by U.S. Magistrate Judge Nina Y. Wang to which Plaintiff Sevier objects (ECF
R. Civ. P. 72 Objection (ECF No. 53); 2 (5) Plaintiff Sevier’s now-pending Motion for
Summary Judgment (ECF No. 51); (6) Plaintiff Gunter’s now-pending Motion for
Summary Judgment (ECF No. 52); and (7) Plaintiff Joan Grace Harley’s now-pending
Motion for Summary Judgment (ECF No. 56).
This case was opened on July 19, 2017. (ECF No. 1.) Plaintiffs Sevier and
Gunter filed Motions for Summary Judgment, on August 16 and August 21, 2017
respectively. (ECF Nos. 19, 27 (Plaintiff’s “First Motions”).) The Court referred both
Motions to U.S. Magistrate Judge Nina Y. Wang, pursuant to Federal Rule of Civil
Procedure 72, D.C.COLO.LCivR 72.1, and 28 U.S.C. § 636(b)(1)(B). (ECF Nos. 17, 20,
On August 21, 2017, Judge Wang entered a Minute Order striking both Motions
for exceeding the page limits imposed by the undersigned’s Revised Practice
Standards. (ECF No. 29 at 2 (“Judge Wang’s Order” or “the Order”).) Plaintiff Gunter
and Plaintiff Sevier filed Objections to Judge Wang’s Order. (ECF Nos. 32, 40, 50, 53.)
Subsequently, Plaintiffs Sevier and Gunter re-filed Motions for Summary Judgment,
which are substantially identical to their First Motions (ECF Nos. 51, 52), and Plaintiff
Harley also filed a Motion for Summary Judgment (ECF No. 56) (collectively, the
“Pending Motions for Summary Judgment”).
The filing at ECF No. 53 was docketed as an objection to the same Minute Order (ECF
No. 29) to which the filings at ECF Nos. 32, 40 & 50 are directed. To the extent it addresses
that Order, it is subject to being stricken as duplicative and is overruled for the reasons stated
below. To the extent it objects to the requirement for in-person appearance at the Status
Conference held September 20, 2017, that Objection is overruled as moot.
Because Plaintiffs appear pro se, the Court gives liberal construction to their
pleadings. Ghailani v. Sessions, 859 F.3d 1295, 1303 (10th Cir. 2017). However, “pro
se litigants must follow the same procedural rules that govern other litigants.” Dodson
v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1240 (D. Colo. 2012) (citing Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). In addition, Plaintif fs Gunter and Sevier
represent that Plaintiff Sevier is “an immensely competent attorney,” albeit no longer
licensed. (ECF No. 50 at 15; see also ECF No. 19; ECF No. 32 at 4–5.) Therefore
Plaintiff Sevier’s filings are not entitled to the same liberal construction as pro se
litigants. Tatten v. Bank of Am. Corp., 562 F. App’x 718, 720 (10th Cir. 2014). 3
II. FED. R. CIV. P. 72 OBJECTIONS
Judge Wang’s Order was not a determination of Plaintiffs’ First Motions on the
merits, and was not dispositive of any claim or defense, and is thus subject to reversal
only if it was “clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C.
§ 636(b)(1)(A). This standard “requires that the reviewing court affirm unless it on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988).
The Court finds no clear error in Judge Wang’s Order. The undersigned’s
procedural requirements limit parties to “a single motion for summary judgment
customarily filed at the conclusion of pretrial discovery,” while also permitting “one early
motion for partial summary judgment which presents a substantial and well-supported
Whether Plaintiff Sevier is engaged in the unauthorized practice of law by representing
the other pro se Plaintiffs is a question raised by ongoing proceedings before Judge Wang but
not addressed here. (See ECF Nos. 72, 73, 76, 78.)
argument for significantly reducing the claims or issues in the case.” WJM Revised
Practice Standard III.E.2. Plaintiffs Sevier and Gunter argue that theirs were
“traditional” motions subject to a 40-page limit, rather than the 15-page limit for “early”
motions. (ECF Nos. 32, 40.) Plaintiffs’ First Motions were filed before any discovery
had commenced, indeed before most Defendants had been served, and thus before it
had even been established whether Defendants might pursue discovery, no matter how
vociferously Plaintiffs insist none is necessary. (See ECF Nos. 13, 19, 27.) In these
circumstances, Plaintiffs’ First Motions were clearly premature under Rule 56, and this
timing reflects no clear error in Judge Wang’s conclusion that these were “early”
motions and thus subject to the 15-page limit, which both Motions grossly exceeded.
See WJM Revised Practice Standard III.C.1.
Even if the Court were to engage in de novo review, it would sustain Judge
Wang’s Order to strike Plaintiff’s First Motions. As that Order noted, the undersigned’s
Revised Practice Standards specify the required format for all motions for summary
judgment. (ECF No. 29.) Plaintiffs’ First Motions did not meet these requirements. To
name two examples, among many, Plaintiff Sevier’s Motion alleges as “material facts”
that “[t]he governor and state officials are providing full marriage benefits and privileges
to . . . homosexuals but not to self-identified polygamists and machinists,” but with no
citation to any form of evidence. (ECF No. 19 at 24, ¶ 3.) Plaintiff Sevier also alleges
as a “fact” that “[f]ollowing Obergefell, the LGBTQ community has been entering public
schools to advocate its ideology,” citing only “See public record.” (Id. at 25, ¶ 12.) Such
recitals do not meet the Court’s procedural requirements; nor could they carry the
burden of a party seeking summary judgment. See Fed. R. Civ. P. 56(a); Fed. R. Civ.
P. 56(c)(1)(A) (“[a] party asserting that a fact cannot be or is genuinely disputed must
support the assertion by . . . citing to particular parts of materials in the record”); WJM
Revised Practice Standard III.E.3 (alleged material facts “must be accompanied by a
specific reference to admissible evidence in the record which establishes that fact”).
In addition, the “evidentiary” materials docketed with Plaintiffs’ First Motions do
not support a cognizable request for summary judgment. Most of these materials are
clippings or reproductions of online news or opinion pieces, while some are litigation
materials from other cases, and copies of proposed legislation supported by Plaintiff
Gunter. (See e.g., ECF Nos. 19-1 through 19-50, ECF Nos. 27-1 through 27-42.) Most
of these materials are facially inadmissible under the Federal Rules of Evidence. See,
e.g., Fed. R. Evid. 801–02. There is no indication that the authors of these materials
could be called as witnesses, and these materials cannot carry Plaintiffs’ burden of
proof under Rule 56. These submissions are thus both procedurally improper and
substantively inadequate to support Plaintiffs’ request for summary judgment. See Fed.
R. Civ. P. 56(a), (c)(1), (c)(2); Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452
F.3d 1193, 1199 (10th Cir. 2006) (at the summary judgment phase, “courts should
disregard inadmissible hearsay statements,” and “may consider only the evidence that
would be available to the jury”).
More broadly, the Court finds that Plaintiffs’ First Motions fall short of the
standards required by D.C.COLO.LCivR. 7.1(i) (“Motions . . . shall be concise. A
verbose, redundant . . . or unintelligible motion . . . may be stricken . . . and . . . may be
grounds for sanctions . . . .”), and by D.C.COLO.LCivR 56.1(c) (“Voluminous exhibits
are discouraged. Parties shall limit exhibits to essential portions of documents.”).
Given these pervasive failures, Plaintiffs’ Motions for Summary Judgment did not
present a competent record on which the Court could have addressed the merits of
Plaintiffs’ claims. For all these reasons—in addition to the problem s with timing and
length—Judge Wang was correct to strike Plaintiffs’ First Motions. Accordingly
Plaintiffs’ Objections (ECF Nos. 32, 40, 50, 53) are OVERRULED.
III. PENDING MOTIONS FOR SUMMARY JUDGMENT
The Court also finds that the Pending Motions for Summary Judgment filed by
Plaintiffs’ Sevier and Gunter (ECF Nos. 51 & 52) are substantially identical to Plaintiffs’
First Motions and suffer all of the same defects identified above. Plaintiff Harley’s
Pending Motion for Summary Judgment (ECF No. 56) suffers the same errors, and also
contains no section stating allegedly undisputed material facts. Contra
D.C.COLO.LCivR 56.a(1); WJM Revised Practice Standard III.E.3.
Given these failures, the Pending Motions again fail to present a competent
record on which the Court could apply the standards required by Fed. R. Civ. P. 56 or
address the merits of Plaintiffs’ claims. If the Court were to take up these Motions as
filed, it is clear on face that they would fail to carry Plaintiffs burden of “showing beyond
a reasonable doubt that [they are] entitled to summary judgment.” Pelt v. Utah, 539
F.3d 1271, 1280 (10th Cir. 2008). If accepted, the Court would be compelled to deny
Plaintiffs’ Motions on their merits, with no opportunity for re-filing. WJM Revised
Practice Standard III.E.2. (“each party shall be limited to the filing of a single motion for
summary judgment”) (emphasis added). However, denying Plaintiffs’ Pending Motions
at this stage would unduly elevate procedure over substance and prejudice Plaintiffs’
opportunity to have their claims heard and adjudicated on the merits. The Court will
provide that opportunity, in the usual course, and when and if a proper record is
presented, but not before.
Accordingly, given their numerous procedural defects, Plaintiffs’ Pending Motions
for Summary Judgment (ECF Nos. 51, 52 & 56) are STRICKEN. Pursuant to Fed. R.
Civ. P. 56(b), Plaintiffs may file renewed Motions for Summary Judgment, if any, only
after any motions filed pursuant to Fed. R. Civ. P. 12 have been fully briefed and
resolved, and in no event before the entry of a scheduling order. Any Motions filed
earlier will be summarily stricken as premature.
IV. EXTRANEOUS FILINGS
Plaintiffs have rapidly cluttered the docket of this case with extraneous materials,
principally including declarations of non-parties which bear no identified connection
either to the material facts of this case or to any pending motion or pleading permitted
by the Federal Rules of Civil Procedure or the Rules of this Court. (See, e.g., ECF Nos.
3–11, 22–26, 60, 77.) These materials serve only to unnecessarily confuse and
congest the docket, thus obstructing the orderly advancement of this case. Pursuant to
the Court’s inherent power to control its docket, such extraneous filings are subject to
being summarily stricken. The Court’s docket is not a forum in which Plaintiffs may
freely re-publish documents unauthorized by the Federal Rules which bear no
connection to any pending pleading or motion.
Accordingly, Judge Wang is hereby DIRECTED and AUTHORIZED to review the
docket for such extraneous filings, and may strike any such extraneous filings, whether
already docketed or filed in the future.
V. AD HOMINEM ATTACKS ON JUDGE WANG
Lastly, the most pervasive feature of Plaintiffs’ filings to date has been their
resort to histrionic and absurd ad hominem attacks, insults, and threats against Judge
Wang.4 Such filings are entirely unacceptable. This case is subject to an All-Motions
Reference Order entered by the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) &
(B), and Fed. R. Civ. P. 72(a) & (b). (ECF No. 17.) Plaintiffs can expect that Judge
Wang—for whom the undersigned has the utmost respect—will act on all matters in the
first instance, to enter rulings, orders, and/or recommendations. Plaintiffs’ oft-espoused
respect for the courts and the “Rule of Law” must manifest itself in demonstrated and
appropriate respect for Judge Wang.
Plaintiffs are hereby ORDERED to immediately cease all ad hominem attacks
on Judge Wang. This Court can only adjudicate Plaintiffs’ claims on their merits if
See, e.g., ECF No 53 at 9 (accusing Judge Wang of “an intellectually dishonest
agenda”); ECF No. 73 at 2 “Magistrate Wang is the poster child for judicial activism . . . [and]
continues to beg that Federal oversight make an example out of her . . . .”); id. (“Magistrate
Wang is a de facto brainwashed ideology [sic]”); ECF No. 40 at 6 (“Magistrate Wang is merely
a Black Robed Priest of the largest denomination of secular humanism . . . .”); ECF No. 32 at 2
(“Plaintiffs are recommending to oversight that Judge Wang is unfit . . . .”); id. at 4 (“Plaintiffs
pray every night to compel oversight punt any Justice that has the nerve to abuse the powers of
their office in the Plaintiffs’ lawsuits off the bench . . . . ”); ECF No. 73 at 2 (accusing Judge
Wang of “full blown contempt for the rule of law, the evidence, and the Constitution” and of
“lack[ing] the character and fitness to even be on the bench,” and pontificating that she “is
without a doubt lead [sic] around by the nose ring by emotion”); id. at 8 (opining that Judge
Wang is “completely incapable of doing her job”); ECF No. 76 at 2 (“Magistrate Wang’s
self-entitlement syndrome is so out of control that she feels that it is proper for her to continually
scheme to obstruct justice . . . .”).
Plaintiffs address their filings to those merits, without resort to baseless ad
hominem attacks. Further insults and attacks of this kind will not be tolerated. Any
pleadings—whether already docketed or filed in the future— which contain ad
hominem attacks on any other judicial officer of this Court may be summarily stricken.
ANY future violations of this Order may also subject Plaintiffs to sanctions, including
being held in contempt of Court. Plaintiffs are hereby specifically put on notice that
such possible sanctions may include this Court ordering that all of Plaintiff’s claims be
dismissed with prejudice and attorney’s fees and costs being awarded to one or
more Defendants. Plaintiffs will proceed by showing appropriate and due respect to all
judicial officers of this Court, or they will not proceed at all.
For the reasons stated, and pursuant to the Court’s inherent authority to control
its docket and the cases before it, the Court ORDERS as follows:
Each of Plaintiff Sevier’s and Plaintiff Gunter’s Objections pursuant to Fed. R.
Civ. P. 72 (ECF Nos. 32, 40, 50, 53) is OVERRULED;
Plaintiffs Sevier, Gunter, and Harley’s pending Motions for Summary Judgment
(ECF Nos. 51, 52, 56) are STRICKEN;
Pursuant to Fed. R. Civ. P. 56(b), no Motions for Summary Judgment may be
filed earlier than such time as any Motions that may be filed pursuant to Fed. R.
Civ. P. 12 have been resolved, and in no event before a scheduling order is
entered pursuant to Fed. R. Civ. P. 16(b)(1) or the Court enters an Order finding
that no scheduling Order is required;
U.S. Magistrate Judge Nina Y. Wang is DIRECTED and AUTHORIZED to
summarily strike any current or future filings which are extraneous to this case,
are unauthorized by the Federal Rules of Civil Procedure, and/or are not clearly
connected to a pending motion or pleading authorizied by the Federal Rules of
Civil Procedure, see Part IV, supra; and,
Plaintiffs are ORDERED to immediately desist from any further ad hominem
attacks, insults or threats against any judicial officer of this Court. Plaintiffs must
direct their filings exclusively to the facts and the merits of their pending claims
and must comply in all respects with D.C.COLO.LCivR 7.1(i) and Fed. R. Civ. P.
11(b)(1), see Part V., supra.
Dated this 29th day of September, 2017.
BY THE COURT:
William J. Martínez
United States District Judge
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