Tso v. Murray et al

Filing 227

ORDER by Chief Judge Philip A. Brimmer on 9/18/2019, re: 219 Recommendation of United States Magistrate Judge is ACCEPTED; 207 the Colorado Defendants' Amended Motion for Filing Sanctions and Request for Expedited Ruling is GRANTED. ORDERED that Plaintiff's Objections to Magistrate Judge's Recommendations [ECF #219] [Docket No. 225] are OVERRULED. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-02523-PAB-STV
GILBERT T. TSO, a natural person and an American,
Plaintiff,
v.
REBECCA MURRAY, a/k/a Tso, individually,
TANYA AKINS, individually,
SHERR PUTTMANN AKINS LAMB PC, law firm,
JEANNIE RIDINGS, individually,
KILILIS RIDINGS & VANAU PC, a law firm,
RUSSELL MURRAY, individually,
DENA MURRAY, individually,
JOANNE JENSEN, individually,
RICHARD F. SPIEGLE, PSY.D., individually,
ELIZABETH A. STARRS, individually,
DAVID P. BRODSKY, individually,
CHARLES D. JOHNSON, individually,
ROSS B.H. BUCHANAN, individually,
DAVID H. GOLDBERG, individually,
MONICA JACKSON, individual and official capacity,
LARA DELKA, individual and official capacity,
CHRISTIAN MADDY, individual and official capacity,
JENNIFER ADELMANN, individual and official capacity,
DON MARES, official capacity,
BARRY PARDUS, official capacity,
MICHAEL DIXON, official capacity,
CYNTHIA COFFMAN, official capacity,
19th JUDICIAL CIRCUIT COURT, LAKE CO., IL,
2nd DISTRICT COURT, DENVER COUNTY, CO,
DENVER DEPT. OF HUMAN SERVICES,
COLORADO DEPT. OF HUMAN SERVICES,
COLORADO DIVISION OF MOTOR VEHICLES, and
CITY AND COUNTY OF DENVER,
Defendants.

_____________________________________________________________________
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge Scott T. Varholak (“the recommendation”) filed on August 5, 2019
[Docket No. 219]. Magistrate Judge Varholak recommends that the Court grant the
Colorado Defendants’ Amended Motion for Filing Sanctions and Request for Expedited
Ruling [Docket No. 207] and impose filing restrictions against plaintiff Gilbert T. Tso.1
Plaintiff filed timely written objections. Docket No. 225.
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is proper if it
is specific enough to enable the Court “to focus attention on those issues – factual and
legal – that are at the heart of the parties’ dispute.” United States v. 2121 East 30th
Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In light of plaintiff’s pro se status, the
Court reviews his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

1

The “Colorado defendants” are Elizabeth A. Starrs, Ross B.H. Buchanan, David
H. Goldberg, Barry Pardus, Michael Dixon, Cynthia Coffman, the 2nd District Court,
Denver County, CO, Colorado Department of Human Services, and the Colorado
Division of Motor Vehicles. Docket No. 207 at 1. The motion is joined by defendants
the City and County of Denver, Denver Department of Human Services, Monica
Jackson, Lara Delka, Christian Maddy, Jennifer Adelmann, Don Mares, Dr. Richard F.
Spiegle, Rebecca Murray, Russell Murray, Dena Murray, Joanne Jensen, Tanya Akins,
Sherr Puttman Akins Lamb, P.C., and Kililis Ridings & Vanau, P.C. Id. at 8; Docket No.
208.
2

This case arises from the dissolution of plaintiff’s marriage to defendant Rebecca
Murray and the resulting domestic proceedings in Illinois and Colorado. 2 The Court
dismissed all of plaintiff’s claims as barred by the Rooker-Feldman doctrine. Docket
No. 188.3 After the Court entered judgment, the Colorado defendants moved to restrict
plaintiff from filing additional pro se lawsuits in this Court related to the Illinois and
Colorado domestic proceedings. Docket No. 207 at 8. 4 The magistrate judge
recommends granting the motion. The recommendation summarizes plaintiff’s “long
history of filing repetitive claims” and “pursu[ing] numerous facially appropriate
motions.” Docket No. 219 at 20. The recommendation concludes that, “[b]ecause
[plaintiff’s] unwillingness to accept the validity of the [Illinois and Colorado domestic
proceedings] imposes an undue burden on the Court’s and [d]ef endants’ time and
resources . . . the imposition of filing restrictions is warranted.” Id. The
recommendation proposes that plaintiff be barred from filing new actions in this Court
related to the Illinois and Colorado domestic proceedings “without the representation of
a licensed attorney admitted to practice in the District of Colorado, unless [plaintiff]
obtains permission” to proceed pro se. Id. at 22-23. The recommendation further

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Because the recommendation contains a detailed statement of the case and its
procedural background, the Court discusses only the facts relevant to the resolution of
plaintiff’s objections.
3

Plaintiff has appealed the Court’s order dismissing the case to the Tenth
Circuit. Docket No. 192.
4

Defendants filed a substantially similar motion in another case filed by plaintiff.
See 19-cv-293-PAB-STV, Docket No. 29. The magistrate judge’s recommendation on
that motion is not before the Court at this time.
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outlines a process by which plaintiff can petition for permission to proceed pro se. Id. at
23.
Because “the right of access to the courts is neither absolute nor unconditional,”
federal courts may “regulate the activities of abusive litigants by imposing carefully
tailored restrictions under the appropriate circumstances.” Tripati v. Beaman, 878 F.2d
351, 352-53 (10th Cir. 1989). Filing restrictions are proper where (1) a “litigant’s
abusive and lengthy history is properly set forth,” (2) the court provides guidelines as to
what the litigant “must do to obtain the court’s permission to file an action,” and (3) the
litigant receives “notice and an opportunity to oppose the court’s order before it is
instituted.” Id. at 353-54; United States v. Coleman, 707 F. App’x 563 (10th Cir. 2017)
(unpublished).
The Court understands plaintiff to be making four objections to the
recommendation: (1) there is no merit to the contention that plaintiff is an abusive
litigant; (2) the magistrate judge improperly relied upon plaintiff’s history in the state
court to establish his litigation history; (3) it is premature to conclude that RookerFeldman bars all of plaintiff’s claims; and (4) the proposed filing restrictions are not the
least-restrictive means of enjoining plaintiff’s behavior. Docket No. 225.
Plaintiff’s objection that the magistrate judge failed to establish that plaintiff is an
abusive litigant is without merit. The magistrate judge’s recommendation carefully sets
out plaintiff’s extensive litigation history, both in the Illinois and Colorado domestic
proceedings and in federal court. See Docket No. 219 at 4-20. The recommendation
describes all four of plaintiff’s federal cases in this District, in which plaintiff has

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repeatedly pursued both “facially inappropriate motions” – e.g. repeatedly moving for
temporary restraining orders against defendants and Fed. R. Civ. P. 11 sanctions
against defendants’ counsel – and claims for which both this Court and the Tenth
Circuit have made clear that plaintiff is “not entitled to any relief.” See id. at 20.
Plaintiff contends that his filing history is not “abusive and lengthy” under Tripati
because he has only brought four actions in this Court. See Docket No. 225 at 6-9
(noting that the abusive litigants in the cases cited in Tripati entered between thirtyseven and 700 complaints). However, there is no support in the post-Tripati case law
for the proposition that a litigant must file a certain number of abusive actions before a
court may impose filing restrictions. See, e.g., Coleman, 707 F. App’x 563 (affirming
filing restrictions against litigant who filed “six motions and two civil lawsuits”); Calvin v.
Lyons, 770 F. App’x 433, 434 (10th Cir. 2019) (unpublished) (affirming filing restrictions
against litigant after filing four civil actions). The Tenth Circuit has, for example,
affirmed filing restrictions placed on a litigant who “filed multiple lawsuits in federal
court, all but one related to the same state divorce and custody proceedings.” See
Blaylock v. Tinner, 543 F. App’x 834, 836 (10th Cir. 2013) (unpublished). The litigant
continued to file lawsuits despite being informed that his claims are barred by the
Rooker-Feldman doctrine, which the Court described as “painting new veneers on
essentially the same claim.” See id. The Court has no difficulty finding that, like the
litigant in Blaylock, plaintiff’s repetitive attempts to relitigate the Illinois and Colorado
domestic proceedings in federal court in Colorado are sufficiently numerous as to merit
filing restrictions.

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Moreover, this case is unlike Tripati and the other cases plaintiff relies upon
involving the filing of a large number of cases in that those cases involve plaintiffs who
file a large volume of cases on different subjects against different defendants. By
contrast, plaintiff continues to file cases against mostly the same defendants based on
the same dispute. Plaintiff’s conduct merits filing restrictions, despite plaintiff filing
fewer cases than the plaintiff in Tripati, because plaintiff is ignoring the jurisdictional
defect common to each of his cases and shows no sign of abating his practice of filing
new cases (with the same jurisdictional defect) after one of his current cases is
dismissed. The magistrate judge’s proposed filing restrictions take this distinction into
account by tailoring the restrictions to the subject matter of plaintiff’s past filings in the
District of Colorado.
The Court also agrees with the magistrate judge, contrary to plaintiff’s assertions,
that plaintiff’s litigation history is “abusive.” See Docket No. 219 at 20 (noting that
plaintiff’s litigation history has “impose[d] an undue burden” on defendants’ time and
resources); Calvin, 770 F. App’x at 435 (noting that a plaintiff’s “relentless pursuit of an
order that a federal court cannot issue” can become abusive even though his or her
“intentions may be innocent”). Thus, the Court will overrule plaintiff’s first objection.
Plaintiff’s second objection appears to argue the magistrate judge improperly
relied upon plaintiff’s actions in the Illinois and Colorado domestic proceedings to
establish his litigation history. See Docket No. 225 at 10-13. W hile the Court agrees
that plaintiff’s litigation history in state court is not a basis to impose filing restrictions
here, the recommendation to impose filing restrictions is justified based on plaintiff’s

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behavior in federal court. See Docket No. 219 at 20 (“Despite this Court and the T enth
Circuit making clear that [plaintiff] is not entitled to any relief from the federal courts with
regard to the [Illinois and Colorado domestic proceedings] and denying [plaintiff] leave
to amend, [plaintiff] continues to pursue relief from this Court by filing new lawsuits.”).
Thus, the Court will overrule plaintiff’s second objection.
Plaintiff’s third objection argues that it is “premature” to argue that his claims are
barred by Rooker-Feldman, contending that “the Tenth Circuit will need to provide
guidance and clarification as to whether [plaintiff] properly navigated the Tenth Circuit’s
interpretation of Rooker-Feldman.” Docket No. 225 at 13-15. As an initial matter,
plaintiff’s right to appellate review in both this case and other pending actions is not
affected by the proposed filing restrictions. If the Tenth Circuit disagrees with the
Court’s disposition of this action, this case will continue. However, the Tenth Circuit has
already held that plaintiff’s claims arising out of the Illinois and Colorado domestic
proceedings in 16-cv-02480-WJM-STV were barred by Rooker-Feldman. See Tso v.
Murray, 760 F. App’x 564, 567-68 (10th Cir. 2019) (unpublished) (noting that, except for
“one insignificant exception,” “the harms for which [plaintiff] seeks relief . . . all result
from state-court judgments”). Plaintiff has not articulated a persuasive reason why his
claims would fare any better were he permitted to file more lawsuits arising out of the
same set of facts. See Docket No. 225 at 13. It is evident from plaintiff’s objection he
continues to ignore that the Rooker-Feldman doctrine deprives the Court of jurisdiction
over his challenges to the Illinois and Colorado domestic judgments. See Docket No.
225 at 14; see also Docket No. 188 at 20 (“The problem with plaintiff’s claims is not that

7

his pleadings are less skillful. It is that they allege conduct that Congress has barred
this Court from reviewing.”).5 Thus, the Court will overrule plaintiff’s third objection.
Finally, plaintiff objects that the proposed filing sanctions are not the leastrestrictive means of addressing his filing behavior. Docket No. 225 at 15-17. Plaintiff
suggests that the Court should allow plaintiff to continue “unencumbered” as a pro se
litigant with the assistance of a “second chair” attorney who “serves at the pleasure of”
plaintiff. Id. at 17. The Court disagrees. Plaintiff does not cite – and the Court has not
found – any Tenth Circuit authority applying a least-restrictive means analysis in
crafting filing restrictions.6 Moreover, there is no basis for allowing plaintiff to continue
pro se with “assistance” from a second-chair attorney. Plaintiff fails to explain why this
option is superior to the restriction proposed in the recom mendation, which requires
plaintiff to obtain representation from a licensed attorney admitted to practice in this
District in order to file a new action related to the subject matter identified herein. The
Court does not believe that allowing plaintiff to continue with “assistance” from an

5

Plaintiff asserts that “[e]very time a state actor . . . acts on any matter relating to
[p]laintiff’s existing claims,” plaintiff is allowed “an opportunity to refile his claims under a
new lawsuit, and an opportunity to cure a prior jurisdictional defect.” Docket No. 225 at
13. There is no basis for this pronouncement in the case law. Plaintiff’s assertion that
he has a nearly unlimited right to continue to file actions against the same defendants,
even when it has been made clear to him that the jurisdictional defects cannot be
cured, confirms to the Court that filing restrictions are appropriate. See Ute Indian Tribe
of the Uintah and Ouray Reservation v. Utah, 790 F.3d 1000, 1003 (10th Cir. 2015)
(noting that the legal system depends on the principle that “both sides m ust accept – or,
if need be, they must be made to respect – the judgments it generates”).
6

Plaintiff suggests that the effect of the filing sanctions is to make him a “‘person
of unsound mind’ and a ward of the court.” Docket No. 225 at 16. This contention is
meritless.
8

attorney is adequate to ensure that plaintiff’s pattern of abusive and lengthy filings on
this subject matter will cease.
The Court is satisfied that filing restrictions against plaintiff are appropriate. For
the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 219] is accepted. It is further
ORDERED that Plaintiff’s Objections to Magistrate Judge’s Recommendations
[ECF #219] [Docket No. 225] are overruled. It is further
ORDERED that the Colorado Defendants’ Amended Motion for Filing Sanctions
and Request for Expedited Ruling [Docket No. 207] is granted. It is further
ORDERED that the following filing restrictions are imposed on plaintiff Gilbert T.
Tso: Mr. Tso will not be permitted to file new actions in this Court raising claims related
to his divorce, child custody, or child support obligations (or the enforcement of those
orders and obligations) without the representation of a licensed attorney admitted to
practice in the District of Colorado, unless Mr. Tso obtains permission from the District
of Colorado to proceed pro se. In order to proceed pro se, Mr. Tso must take the
following steps:
(1) File a motion with the Clerk of Court for the District of Colorado requesting
leave to file a pro se case and attaching as exhibits the proposed complaint or
pleading and a copy of the Order imposing filing restrictions;
(2) The motion for leave to proceed pro se must include a list, by case name,
number, and citation where applicable, of all proceedings currently pending or

9

previously filed, in this or any other court, related to Mr. Tso’s divorce, child
custody, or child support obligations (or the enforcement of those orders and
obligations) with a statement indicating the status or disposition of each
proceeding; and
(3) The motion for leave to proceed pro se must identify the legal issues that the
proposed new complaint raises and whether he has raised these issues in other
proceedings, and, if so, the motion must cite the case number and docket
number where such legal issues have been previously raised.
Any pro se action raising claims related to his divorce, child custody, or child support
obligations (or the enforcement of those orders and obligations) filed by Mr. Tso in the
District of Colorado without the permission of the Court will be summarily dismissed.

DATED September 18, 2019.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge

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