Burbank v. USDC UT, et al

Filing 390

ORDER (continued from entry 389 ). Counterclaim defendant Dale Stevens is ENJOINED from filing any claims against the judges or legal counsel or record in this case, which arise out of or as a result of this action, or relate to the subject matter o f any claims that have, at any stage, been asserted by or against any present or former party to this action, without the representation of a licensed attorney admitted to practice in this court unless he first obtains permission to proceed pro se. For documents sought to be filed in this case, the magistrate judge will make the determination whether the documents should be filed, or forward them to the district judge with a recommendation, as appropriate. For documents such as a new complaint, the magistrate judge will determine whether the case lacks merit or is duplicative, or frivolous. If the magistrate so determines, he will forward the documents to the chief judge who will make the final determination. In making the determination wh ether to allow Mr. Stevens to proceed pro se, consideration shall be given to whether Mr. Stevens has fully complied with this order; whether his proposed filing complies with the Federal Rules of Civil Procedure and the Local Rules of Practice; whet her the proposed filing is frivolous, abusive, harassing, or malicious; and whether the claims have been previously raised and disposed of by a federal or state court. If the court enters an order granting the petition, the clerk of the court shall f ile the materials as of the date of the order. If the court does not approve the petition, the material submitted shall be returned via U.S. Mail to the address provided by Mr. Stevens. Please see order for further details re: this matter. Signed by Judge Stephen P. Friot on 4/20/2011. (ce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

JAMES W. BURBANK,

)
)
Plaintiff,
)
)
-vs)
)
UNITED STATES DISTRICT COURT )
OF UTAH, et al.,
)
)
Defendants.
)
_______________________________ )
UINTAH COUNTY, UTAH, et al.,
)
)
Counterclaim Plaintiffs,
)
)
v.
)
)
JAMES W. BURBANK, et al.,
)
)
Counterclaim Defendants. )

Case No. 2:04-CV-00742 SPF

ORDER
On March 22, 2011, United States Magistrate Judge David Nuffer issued a
Report and Recommendation, wherein he recommended that the motions to vacate
judgment and to disqualify judges filed by counterclaim defendant Dale Stevens be
denied. Magistrate Judge Nuffer additionally recommended that restrictions be
imposed on Mr. Stevens’ future filings.
Presently before the court is Mr. Stevens’ response to the Report and
Recommendation, which the court construes as an objection pursuant to 28 U.S.C.
636(b)(1). Uintah County has responded to the objection, and Mr. Stevens has

replied. Having conducted a de novo review of the matter in accordance with
636(b)(1), the court concurs with the recommendations of Magistrate Judge Nuffer
that the motions should be denied and filing restrictions imposed.
It appears to the court that Mr. Stevens seeks to vacate the judgment under
Rule 60(b)(4), Fed. R. Civ. P. That rule requires the court to grant relief if “the
judgment is void.” See, Rule 60(b)(4), Fed. R. Civ. P. Despite the language of Rule
60(c) that all motions for relief must be made “within a reasonable time,” a motion
under Rule 60(b)(4) may be made at any time. U.S. v. Buck, 281 F.3d 1336, 1344
(10th Cir. 2002). Nonetheless, “[i]n the interest of finality, the concept of setting aside
a judgment on voidness grounds is narrowly restricted.” V.T.A., Inc. v. AIRCO, Inc.,
597 F.2d 220, 225 (10th Cir. 1979). “A judgment is void only if the court which
rendered it lacked jurisdiction of the subject matter, or of the parties, or acted in a
manner inconsistent with due process of law.” Buck, 281 F.3d at 1344 (internal
quotations omitted).
In his papers, Mr. Stevens complains of a denial of due process. Under Rule
60(b)(4), a litigant was afforded due process if “fundamental procedural prerequisites
- particularly, adequate notice and opportunity to be heard - were fully satisfied.”
Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994). Contrary to Mr. Stevens’
arguments, the court concludes that Mr. Stevens was afforded due process. The court
finds that Mr. Stevens’ arguments as to denial of due process are without merit. Thus,
the court rejects Mr. Stevens’ assertion that the judgment is void because the court
acted in a manner inconsistent with due process.
Mr. Stevens additionally complains that the court lacked jurisdiction over this
matter. For a judgment to be void for lack of subject matter jurisdiction, it must be
determined that the court was powerless to render it. V.T.A., Inc., 597 F.2d at 224.
A judgment is not void simply because it is or may be erroneous. Buck, 281 F.3d at
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1344; V.T.A., Inc., 597 F.2d at 224. The court concludes that it had jurisdiction over
this matter and had the power to render the judgment. The court therefore rejects Mr.
Stevens’ argument that the judgment is void for lack of subject matter jurisdiction.
In his papers, Mr. Stevens asserts allegations of “fraud” and “fraud on the
court.” To the extent that Mr. Stevens seeks relief under Rule 60(b)(3), the court
agrees with Magistrate Judge Nuffer’s finding that such relief is untimely sought. See,
Rule 60(c) (“A motion under Rule 60(b) must be made within a reasonable time– and
for reason[] . . . (3) no more than a year after the entry of the judgment . . . .”) As to
the fraud on the court allegations, the court finds that the allegations, which are
conclusory at best, are insufficient to warrant vacating the judgment. See, Thomas v.
Parker, 609 F.3d 1114, 1120 (10th Cir. 2010) (clear and convincing evidence required
for proof of fraud on the court).
Turning to the motions to disqualify, the court agrees with Magistrate Judge
Nuffer that Mr. Stevens has not complied with the pertinent statutes. Mr. Stevens has
not filed an affidavit as required by 28 U.S.C. § 144. See, Glass v. Pfeffer, 849 F.2d
1261, 1267 (10th Cir. 1988) (“[Section] 144 requires an affidavit of bias and prejudice
. . . made by a party . . . .”) As to disqualification under 28 U.S.C. § 455, Mr. Stevens
has failed to show that “a reasonable person, knowing all the circumstances, would
harbor doubts about the judge’s impartiality.” Green v. Branson, 108 F.3d 1296, 1305
(10th Cir. 1997). Mr. Stevens has made no showing of personal bias or prejudice. In
his papers, Mr. Stevens essentially complains of rulings against him. However,
adverse rulings “cannot in themselves form the appropriate grounds for
disqualification.” Id. (quotation omitted). The court therefore concludes that the
motions to disqualify should be denied as recommended by Magistrate Judge Nuffer.
As previously stated, Magistrate Judge Nuffer recommends that restrictions be
placed on Mr. Stevens’ future filings. In the Report and Recommendation, Magistrate
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Judge Nuffer states that in his order of June 30, 2010, Mr. Stevens was warned that
filing “claims outside recognized legal procedure” would result in imposition of
sanctions. See, Order Re: Uintah County’s Motion for Order to Show Cause Re:
Criminal Contempt (doc. no. 360). Magistrate Judge Nuffer also states that because
it may have not been clear that this prohibition extended to filings in this court which
assert claims, he recommends that the court augment the final judgment to order that
Mr. Stevens be enjoined from filing any claims against judges or legal counsel of
record in this case, and from filing any additional motions in this case without first
obtaining the prior approval of the court unless he is represented by a licensed
attorney admitted to practice in this court.
“[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.” Sieverding v. Colorado Bar Ass’n, 469 F.3d 1340, 1343 (10th
Cir. 2006). Federal courts possess inherent authority “to regulate activities of abusive
litigants by imposing carefully tailored restrictions under the appropriate
circumstances.” Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989). Where a party
has engaged in a pattern of litigation activity which is manifestly abusive, restrictions
are appropriate, but only after notice and an opportunity to respond are given. Werner
v. State of Utah, 32 F.3d 1446, 1447-1448 (10th Cir. 1994).
The tenor of Mr. Stevens’ filings is manifestly abusive. Mr. Stevens has made
personal attacks on the undersigned as well as Magistrate Judge Nuffer. In the filings
related to his motions to vacate and to disqualify, Mr. Stevens has threatened criminal
complaints against the undersigned and Magistrate Judge Nuffer as well as legal
counsel for counterclaim plaintiffs. Even after Magistrate Judge Nuffer’s statement
regarding the filing of claims, Mr. Stevens has filed an Affidavit in Opposition to
Plaintiff’s Response to Dale Stevens’ “Motion to Vacate a Void Judgment” (doc. no.
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383) and Affidavit of Default (doc. no. 386) directed against the judges and legal
counsel in this case. In addition, in his objection to the Report and Recommendation,
Mr. Stevens has made claims against the judges and has accused Magistrate Judge
Nuffer of trademark violations and states that he hopes that Magistrate Judge Nuffer
has “deep pockets.” See, (doc. no. 385). In his reply, Mr. Stevens has accused the
court of “one act of treason.” See, (doc. no. 388).
Mr. Stevens has been given notice of the imposition of filing restrictions and
has been given an opportunity to object. The court concludes that Mr. Stevens’
objection is not sufficient to avoid the imposition of filing restrictions. Although the
court does not augment the final judgment in this case as recommended by Magistrate
Judge Nuffer, the court shall impose the filing restrictions recommended by
Magistrate Judge Nuffer.
The court notes that contemporaneous with his Affidavit in Opposition to
Plaintiff’s Response to Dale Stevens’ “Motion to Vacate a Void Judgment” (doc. no.
383), Mr. Stevens filed a Motion to Strike (doc. no. 382). The court finds that the
motion is without merit and should be denied. The court also finds that the Affidavit
in Opposition to Plaintiff’s Response to Dale Stevens’ “Motion to Vacate a Void
Judgment” (doc. no. 383) and Affidavit of Default (doc. no. 385) should be stricken
from the record and declared of no legal effect. Neither document is a memorandum
in support of any motion or a memorandum in reply in support of any motion.
DUCivR 7-1(b)(3)(B) provides that “no additional memoranda will be considered
without leave of court.” Mr. Stevens did not have leave of court to file his documents.
Moreover, the court finds that the documents are frivolous and irrelevant.
Accordingly, based on the foregoing,
IT IS HEREBY ORDERED that the Report and Recommendation issued by
United States Magistrate Judge David Nuffer, filed March 22, 2011 (doc. no. 384), is
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ACCEPTED, ADOPTED and AFFIRMED to the extent stated in this order.
Counterclaim defendant, Dale Nolan Stevens’ Motion to Vacate a Void Judgment
(doc. no. 369), Demand for Relief from a Void Judgment (doc. no. 378), Motion for
Judges to Disqualify Them Self’s (doc. no. 371), Motion for Judges to Disqualify
Them Self’s (doc. no. 373), Motion to Strike (doc. no. 382) are DENIED. The
Affidavit in Opposition to Plaintiff’s Response to Dale Stevens’ “Motion to Vacate
a Void Judgment” (doc. no. 383) and Affidavit of Default (doc. no. 385) are
STRICKEN and DECLARED of no legal effect.
IT IS FURTHER ORDERED that counterclaim defendant Dale Stevens is
ENJOINED from filing any claims against the judges or legal counsel of record in
this case, which arise out of or as a result of this action, or relate to the subject matter
of any claims that have, at any stage, been asserted by or against any present or former
party to this action, without the representation of a licensed attorney admitted to
practice in this court unless he first obtains permission to proceed pro se. To do so,
he must present the following documents:
1.

Petition Pursuant to Court Order Seeking Leave to Proceed Pro Se. Mr.
Stevens shall attach a copy of this order to the petition. The petition shall
include a list of all lawsuits in the United States District Court for the District
of Utah, the Tenth Circuit Court of Appeals, and state courts in which Mr.
Stevens is or was a party; name and case number of each case; and status or
disposition of each case. The petition shall also contain Mr. Stevens’ mailing
address and his physical residence address – e.g., the address where he resides
and may be found.

2.

A copy of the motion, complaint or other papers sought to be filed with the
court. The motion, complaint, or other papers must comply with the Federal
Rules of Civil Procedure and all Local Rules of Practice.

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These documents shall be submitted to the clerk of the court who will forward them
to the magistrate judge for review. Any submission that does not fully comply with
the requirements of paragraphs 1 and 2, above, may be returned to Mr. Stevens with
no further action by the court or court personnel. For documents sought to be filed in
this case, the magistrate judge will make the determination whether the documents
should be filed, or forward them to the district judge with a recommendation, as
appropriate. For documents such as a new complaint, the magistrate judge will
determine whether the case lacks merit or is duplicative, or frivolous. If the magistrate
so determines, he will forward the documents to the chief judge who will make the
final determination. In making the determination whether to allow Mr. Stevens to
proceed pro se, consideration shall be given to whether Mr. Stevens has fully
complied with this order; whether his proposed filing complies with the Federal Rules
of Civil Procedure and the Local Rules of Practice; whether the proposed filing is
frivolous, abusive, harassing, or malicious; and whether the claims have been
previously raised and disposed of by a federal or state court. If the court enters an
order granting the petition, the clerk of the court shall file the materials as of the date
of the order. If the court does not approve the petition, the material submitted shall
be returned via U.S. Mail to the address provided by Mr. Stevens.
DATED April 20, 2011.

04-0742p018.wpd

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