Gabaldon v. Albuquerque Work Force Development et al

Filing 5

MEMORANDUM OPINION AND ORDER and Order to Show Cause by District Judge Judith C. Herrera dismissing this case without prejudice and ordering Plaintiff to show cause, within fourteen (14) days of the date of this Order, why the Court should not enter the proposed filing restrictions described herein. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

DAVID A. GABALDON,
Plaintiff,
v.

No. 18cv470 JCH/LF

ALBUQUERQUE WORK FORCE DEVELOPMENT, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
AND ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on pro se Plaintiff’s Complaint, Doc. 1, filed
May 21, 2018. For the reasons stated below, the Court will DISMISS this case without
prejudice. Plaintiff shall, within fourteen (14) days from entry of this Order, show cause why
the Court should not enter the proposed filing restrictions described below.
Dismissal
The Court has previously imposed filing restrictions on Plaintiff stating: “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.” Doc. 7 at 2, filed February 22, 2018, in Gabaldon v. Sedillo, No.
17cv1106 MV/JHR (D.N.M.) (describing steps Plaintiff must take to obtain permission to
proceed pro se in this Court). Plaintiff did not take the required steps to obtain permission to
proceed pro se in this Court and the Complaint is not signed by a licensed attorney who is
admitted to practice before this Court. The Court will, therefore, dismiss this case without
prejudice.

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
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
Plaintiff initiated ten cases in the District of New Mexico from July 2016 to November
2017. Those ten cases were dismissed for lack of jurisdiction or because Plaintiff did not file an
amended complaint. See Gabaldon v. Gabaldon, No. 16cv864 KG/SMV (dismissed for failure
to file amended complaint); Gabaldon v. Department of Justice, No. 16cv1035 WJ/WPL
(dismissed for failure to file amended complaint);

Gabaldon v. Income Support Division, No.

16cv1049 RB/SCY (dismissed for failure to file amended complaint);

Gabaldon v. New

Mexico, No. 17cv124 MCA/WPL (dismissed for lack of jurisdiction); Gabaldon v. Presbyterian
Hospital, No. 17cv128 JAP/KK (dismissed for lack of jurisdiction);

Gabaldon v. Wal-Mart

Supercenter, No. 17cv136 WJ/CG (dismissed for lack of jurisdiction); Gabaldon v. Bernalillo
2

County Sheriff’s Office, No. 17cv144 JCH/WPL (dismissed for lack of jurisdiction); Gabaldon
v. United Health Care, No. 17cv146 JAP/LF (dismissed for lack of jurisdiction); Gabaldon v.
New Mexico Coalition to End Homelessness, No. 17cv473 LH/KBM (dismissed for lack of
jurisdiction, remanded to state court); Gabaldon v. Sedillo, No. 17cv1106 MV/JHR (dismissed
for lack of jurisdiction).
On February 22, 2018, the Court imposed filing restrictions on Plaintiff. See Doc. 7,
Gabaldon v. Sedillo, No. 17cv1106 MV/JHR. Since then, Plaintiff has filed eight new cases,
none of which complied with the filing restrictions. See Gabaldon v. New Mexico Lottery, No.
18cv348 KG/JHR; Gabaldon v. Albuquerque Family Advocacy, No. 18cv373 JCH/KK;
Gabaldon v. New Mexico, 18cv395 MV/LF; Gabaldon v. Civilian Police Oversight Agency, No.
18cv447 JCH/LF; Gabaldon v. New Mexico Human Services Dep’t, No. 18cv460 JAP/LF;
Gabaldon v. Gonzales, No. 18cv465 JB/KBM; Gabaldon v. Albuquerque Work Force
Development, No. 18cv470 JCH/LF; Gabaldon v. City of Albuquerque Secirty [sic], No. 18cv484
KBM. In each case1 the Court has explained that it was dismissing the case because Plaintiff did
not comply with the filing restrictions. The Court finds that additional filing restrictions are
appropriate so that the Court does not expend valuable resources addressing future such cases.
Proposed Filing Restrictions
Plaintiff sought to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in all but two
of the 18 cases he has filed in this Court.2 Plaintiff has repeatedly abused the privilege of filing
civil actions without prepaying the filing fee by not complying with the filing restrictions.
1

Except for Gabaldon v. City of Albuquerque Secirty [sic], No. 18cv484 KBM, which is still
pending.
2
Gabaldon v. New Mexico Coalition to End Homelessness, No. 17cv473 LH/KBM, is a case that
Defendants removed from state court. Plaintiff did not pay the filing fee or file a motion to
proceed in forma pauperis in Gabaldon v. New Mexico Human Services Dep’t, No. 18cv460
JAP/LF.
3

“When a litigant abuses these privileges, filing restrictions are appropriate.” Werner v. Utah, 32
F.3d 1446, 1447 (10th Cir.1994) (per curiam).
The Court intends to stop allowing Plaintiff to file new cases without prepaying the
filing fee. Federal law orders the Clerk to require the parties instituting any civil action to pay a
filing fee. See 28 U.S.C. § 1914(a). The statute governing proceedings in forma pauperis
allows, but does not require, the Court to authorize commencement of an action without
prepayment of fees.3 See 28 U.S.C. § 1915(a)(1) (stating “any court of the United States may
authorize the commencement” of an action without prepayment of fees) (emphasis added).
Section 1915(a) does not permit litigants to avoid payment of fees; only prepayment of fees may
be excused. See Brown v. Eppler, 725 F.3d 1221, 1231 (10th Cir. 2013) (“all § 1915(a) does for
any litigant is excuse the pre-payment of fees”) (emphasis in original).

Accordingly,

“proceeding in forma pauperis in a civil case is a privilege, not a right—fundamental or
otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir.1998), cert. denied, 526 U.S.
1008 (1999). In some cases, federal law requires that the Court deny certain parties the privilege
of proceeding in forma pauperis. See 28 U.S.C. § 1915(g) (the three-strikes provision of the in
forma pauperis statute requires certain prisoners4 to prepay the entire filing fee before federal
courts may consider their civil actions and appeals); see also White v. Colorado, 157 F.3d at
1233 (the three-strikes provision “does not prevent a prisoner with three strikes from filing civil
actions; it merely prohibits him from enjoying [in forma pauperis ] status”); Abdul–Akbar v.
McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc) (Ҥ 1915(g) does not block a prisoner's
3

The fee for instituting any civil action, suit or proceeding in this Court is $400.00, which is
comprised of the $350.00 filing fee, see 28 U.S.C. 1914(a), and a $50.00 administrative fee.
4
Those prisoners who “on 3 or more prior occasions, while incarcerated . . . brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
4

access to the federal courts. It only denies the prisoner the privilege of filing before he has
acquired the necessary filing fee”).
The Court proposes to impose the following additional filing restrictions on Plaintiff:
(i) Plaintiff may not commence any civil actions without prepayment of fees; and (ii) The Clerk
of the Court shall not accept any documents initiating a new case unless Plaintiff prepays the
filing fee.
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.
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

the 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.

__________________________________
UNITED STATES DISTRICT JUDGE
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