Kucera v. Lawrence Livermore National Laboratories
Filing
4
MEMORANDUM OPINION AND ORDER OF DISMISSAL AND ORDER TO SHOW CAUSE by Chief District Judge William P. Johnson, the Court DISMISSES this case without prejudice. Plaintiff shall, within 14 days of entry of this Order, show cause why the Court should not impose filing restrictions. The Clerk of Court shall UNSEAL this case. (meq)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GREGORY EDWARD KUCERA,
Plaintiff,
v.
No. 18cv250 WJ/LF
LAWRENCE LIVERMORE NATIONAL LABORATORIES,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
AND ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on Plaintiff’s Civil Rights Complaint Pursuant
to 42 U.S.C. § 1983, Doc. 1, filed March 15, 2018 (“Complaint”). For the reasons stated below,
the Court DISMISSES this case without prejudice. Plaintiff shall, within 14 days of entry of
this Order, show cause why the Court should not impose filing restrictions. The Clerk of Court
shall UNSEAL this case.
Dismissal for Lack of Subject Matter Jurisdiction
Plaintiff used the form “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983” to initiate
this case. The only allegation that Plaintiff wrote in the form Complaint states in its entirety:
“Character Defamation.” Complaint at 2. Plaintiff attached a note to the Complaint which
states: “Please seal with national security issues.” Complaint at 7.
As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”); Evitt v. Durland, 243
F.3d 388 *2 (10th Cir. 2000) (“even if the parties do not raise the question themselves, it is our
duty to address the apparent lack of jurisdiction sua sponte”). While the form Complaint states
“Jurisdiction in invoked pursuant to 28 U.S.C. § 1343[a](3), 42 U.S.C. § 1983,” there are no
allegations that Defendant deprived Plaintiff of any right, privilege or immunity secured by the
Constitution or any federal law. Plaintiff’s Complaint does not otherwise contain “a short and
plain statement of the grounds for the court’s jurisdiction” as required by Rule 8(a)(1) of the
Federal Rules of Civil Procedure.
The Court will dismiss the Complaint without prejudice for lack of jurisdiction. See Fed.
R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action”); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th
Cir. 2006) (“[D]ismissals for lack of jurisdiction should be without prejudice because the court,
having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition
on the merits of the underlying claims.”).
Court’s Power to Impose Filing Restrictions
The Court of Appeals for the Tenth Circuit has discussed the Court’s power to impose
filing restrictions and the procedure for imposing filing restrictions:
“[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)
(per curiam) (citation omitted). “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). “Even onerous conditions
may be imposed upon a litigant as long as they are designed to assist the ... court
in curbing the particular abusive behavior involved,” except that they “cannot be
so burdensome ... as to deny a litigant meaningful access to the courts.” Id.
(brackets and internal quotation marks omitted). “Litigiousness alone will not
support an injunction restricting filing activities. However, injunctions are proper
where the litigant's abusive and lengthy history is properly set forth.” Tripati, 878
F.2d at 353 (citations omitted). “[T]here must be some guidelines as to what [a
party] must do to obtain the court's permission to file an action.” Id. at 354. “In
addition, [the party] is entitled to notice and an opportunity to oppose the court's
2
order before it is instituted.” Id. A hearing is not required; a written opportunity to
respond is sufficient. See id.
Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013).
Litigant’s Abusive History
This is the sixth civil case Plaintiff has initiated in the District of New Mexico since
August, 2017. See Kucera v. Choi, No. 17cv789 KG/SCY (dismissed for failure to state a
claim); Kucera v. United States, No. 17cv1228 JB/KK (dismissed for lack of subject-matter
jurisdiction); Sealed Case, No. 18cv94 JB/GJF (pending); Kucera v. Los Alamos National Labs,
No. 18cv95 JCH/SCY (dismissed for lack of subject-matter jurisdiction); and Kucera v. Sandia
Corp., No. 18cv166 WJ/LF (dismissed for lack of subject-matter jurisdiction). Despite the
Court’s previous notices that Plaintiff has the burden of alleging facts to support jurisdiction,
Plaintiff filed a Complaint in this case that does not contain “a short and plain statement of the
grounds for the court’s jurisdiction” as required by Rule 8(a)(1) of the Federal Rules of Civil
Procedure. Furthermore, the Complaint Plaintiff filed in his previous case, like his Complaint in
this case, contains very few factual allegations. See Doc. 1 at 4-5 in Kucera v. Sandia Corp., No.
18cv166 WJ/LF (the only allegations Plaintiff wrote in the form Complaint are “Classified,”
“Speech/[illegible],” “Manslaughter,” and “Settle out of court”). The Court finds that filing
restrictions are appropriate so that the Court does not expend valuable resources addressing
future such cases.
Proposed Filing Restrictions
The Court proposes to impose the following filing restrictions on Plaintiff.
Plaintiff will be enjoined from making further filings in this case except objections to this
order, a notice of appeal and a motion for leave to proceed on appeal in forma pauperis; and the
Clerk will be directed to return without filing any additional submissions by Plaintiff in this case
3
other than objections to this order, a notice of appeal, or a motion for leave to proceed on appeal
in forma pauperis, unless:
1. a licensed attorney who is admitted to practice before this Court and has appeared in
this action signs the proposed filing; or
2. the Plaintiff has obtained permission to proceed pro se in this action in accordance
with the procedures for new pleadings set forth below.
Plaintiff also will be enjoined from initiating further litigation in this Court unless either a
licensed attorney who is admitted to practice before this Court signs the pleading or Plaintiff first
obtains permission to proceed pro se. See DePineda v. Hemphill, 34 F.3d 946, 948-49 (10th Cir.
1994). To obtain permission to proceed pro se in this Court, Plaintiff must take the following
steps:
1. File with the Clerk of Court a petition requesting leave to file a pro se initial pleading,
a notarized affidavit, the proposed initial pleading, and a copy of these filing restrictions;
2. The affidavit must be notarized, be in proper legal form and recite the claims that
Plaintiff seeks to present, including a short discussion of the legal bases for the claims, and the
basis of the Court’s jurisdiction of the subject matter and parties. The affidavit must certify that,
to the best of Plaintiff’s knowledge, his claims are not frivolous or made in bad faith; that they
are warranted by existing law or a good faith argument for the extension, modification, or
reversal of existing law; that the new suit is not initiated for any improper purpose such as delay
or needless increase in the cost of litigation; and that he will comply with all Federal Rules of
Civil Procedure and the District of New Mexico’s Local Rules of Civil Procedure. If Plaintiff’s
claims have previously been raised or the defendants have previously been sued, the affidavit
4
must certify that the proposed new suit does not present the same claims that this or other court
has decided and explain why the new suit would not be an abuse of the system;
3. The Clerk of the Court shall open a new civil case, file the petition, the affidavit, the
proposed pleading and the copy of these restrictions in the new civil case, and randomly assign a
Magistrate Judge to determine whether to grant Plaintiff’s petition to proceed pro se in the new
civil case. See Mem. Op. and Order, Doc. 5 in In re Billy L. Edwards, No. 15cv631 MCA/SMV
(D.N.M. November 13, 2015) (adopting procedure, similar to that of the Tenth Circuit, of
opening a new case and filing the restricted filer’s petition to proceed pro se). If the Magistrate
Judge approves Plaintiff’s petition to proceed pro se, the Magistrate Judge shall enter an order
indicating that the matter shall proceed in accordance with the Federal Rules of Civil Procedure
and the District of New Mexico’s Local Rules of Civil Procedure. If the Magistrate Judge does
not approve Plaintiff’s petition to proceed pro se, the Magistrate Judge shall instruct the Clerk to
assign a District Judge to the new case.
Opportunity to Be Heard
Plaintiff is ordered to show cause within fourteen (14) days from the date of this order
why this court should not enter the proposed filing restrictions. Plaintiff’s written objections to
the proposed filing restrictions shall be limited to 10 pages. Absent a timely response to this
Order to Show Cause, the proposed filing restrictions will enter fourteen (14) days from the date
of this order and will apply to any matter filed after that time. If Plaintiff does file a timely
response, the proposed filing restrictions will not enter unless the Court so orders, after it has
considered the response and ruled on Plaintiff’s objections.
Sealed Case
5
Plaintiff attached a note to the Complaint which states: “Please seal with national
security issues.” Complaint at 7. The Clerk sealed the case. Courts have discretion to allow the
sealing of documents if the public's right of access is outweighed by other interests. See JetAway
Aviation, LLC v. Bd. of Cnty. Comm'rs, 754 F.3d 824, 826 (10th Cir.2014) (per curiam). “To
overcome [the] presumption against sealing, the party seeking to seal records must articulate a
real and substantial interest that justifies depriving the public of access to the records that inform
our decision-making process.” Id. (internal quotation marks omitted). While Plaintiff makes the
conclusory allegations that this case should be sealed due to national security issues, he has not
set forth any factual allegations to support his contention that the case should be sealed.
IT IS ORDERED that:
(i)
This case is DISMISSED without prejudice.
(ii)
Within fourteen (14) days from entry of this Order, Plaintiff shall show cause why
this Court should not enter the proposed filing restrictions described above. If Plaintiff does not
timely file objections, the proposed filing restrictions shall take effect fourteen (14) days from
the date of this order and will apply to any matter filed after that time. If Plaintiff timely files
objections, restrictions will take effect only upon entry of a subsequent order.
(iii)
The Clerk of Court UNSEAL this case.
______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?