Green v. Seymour

59 F.3d 1073, 1995 WL 410167
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 11, 1995
DocketNo. 92-5207
StatusPublished
Cited by24 cases

This text of 59 F.3d 1073 (Green v. Seymour) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Seymour, 59 F.3d 1073, 1995 WL 410167 (10th Cir. 1995).

Opinion

FRIEDMAN, Senior Circuit Judge.

This is an appeal from an order of the United States District Court for the Northern District of Oklahoma dismissing under 28 U.S.C. § 1915(d) (1988) as frivolous the appellant Green’s civil suit against all of the active judges of this court and the husband of the chief judge. He alleges that they eon[1075]*1075spired to deny him his constitutional right of access to the courts. We affirm.

I.

The appellant Green has been incarcerated in the Oklahoma prison system since 1972, following his state conviction for armed robbery. Green v. Johnson, 977 F.2d 1383, 1385 (10th Cir.1992). He remained incarcerated since then “because of additional convictions that have been imposed as a result of his assaultive behavior.” Id. at 1385-6. “In 1975 [he] was placed in administrative segregation because of his aggressive and assaultive conduct, both for his protection and for the protection of others. He remained there continuously until 1984 and has been in administrative segregation for most of the time since.” Id. at 1386.

The present suit by Green stems from two prior federal court suits he filed. The first was a suit under 42 U.S.C. § 1983 against prison guards and officials, alleging they had violated his constitutional rights. Green v. Johnson, No. 85-647-C (E.D.Ok.). The appellee Mr. Seymour, the husband of the chief judge of this court, was his attorney in the case. Shortly before trial Green fired Mr. Seymour. In his present complaint Green alleges that Mr. Seymour became angry and threatened him, stating that Mr. Seymour would use his influence with his wife and three friends who were judges of the 10th Circuit, to bar him from court. Green asserts that Mr. Seymour concluded the conversation by stating that ‘You black boys don’t understand who controls the judicial system.”

In Johnson, we stated:

In 1975 [he] was placed in administrative segregation because of his aggressive and assaultive conduct, both for his protection and for the protection of others. He remained there continuously until 1984 and has been in administrative segregation for most of the time since.

Id. at 1386.

The record in that case showed that after Green repeatedly engaged in disruptive conduct and had several verbal altercations with prison officers, an officer knocked him to the floor of his cell, and three other officers

entered the cell and, using “unnecessary excess force,” restrained plaintiff. Id. at 10. “Plaintiff was pinned down by four large correction officers. Plaintiff was struck more than once on his face and head. His body was repeatedly kicked and his feet were twisted at the ankle” ... Plaintiff received a cut on his nose and under his eye. Id. ... Plaintiff was taken back to the infirmary where he was again attacked. “Johnson lectured plaintiff. Green and Morgan would strike plaintiff about the face and neck if he was unresponsive to Johnson’s commentary, and use other means of intimidation.”

Id. at 1386-7.

After a bench trial, the court awarded Green damages of $15,000 but denied him other relief. On appeal Green challenged the damages as inadequate. This court affirmed the award and the denial of punitive damages, but remanded the case to the district court for further proceedings on several of Green’s other claims. Green v. Johnson, 977 F.2d 1383 (1992).

The second case was another section 1983 suit, in which Green also was represented by counsel. Green v. Dorrell, 969 F.2d 915 (10th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993). Two months after filing suit, Green personally, not through his attorney, as FRCP 11 required, moved to substitute counsel. [Dorrell, 969 F.2d at 916; Add. A, Pet. for Cert. p. 2] He later personally moved to dismiss counsel and to proceed pro se. [Dorrell, 969 F.2d at 916; Add. A, Pet. for Cert. p. 2-4] The defendants moved to dismiss the action. [Dorrell, 969 F.2d at 916, Add. A, Pet. for Cert. p. 3] Green failed to respond within 10 days as Local Rule 14(a) of the Eastern District of Oklahoma required. [Dorrell, 969 F.2d at 916] Instead, almost a month later, Green’s counsel sought to withdraw and requested an extension of time to answer the motion to dismiss. [Dorrell, 969 F.2d at 916; Add A, Pet. for Cert. p. 3]

The district court denied Green’s motion to dismiss counsel, denied his counsel’s request for an extension of time and application to [1076]*1076withdraw, and granted the defendants’ motion to dismiss. [Dorrell, 969 F.2d at 916; Add A, Pet. for Cert. p. 4] On the same day, Green moved to recuse the district judge, a motion which the judge did not address. [Dorrell, 969 F.2d at 916; Add A, Pet. for Cert. p. 4]

On Green’s appeal, this court affirmed. Green v. Dorrell, 969 F.2d at 915. The court held that the dismissal was a proper sanction for filing several motions that did not comply with Rule 11 and that the district court was not required to address Green’s untimely and insufficient recusal motion. Id. at 918-19. Green petitioned for rehearing en banc, which was denied, and filed a petition for a writ of certiorari, which was denied.

Green then filed the present suit alleging that Mr. Seymour and the judges of this court, in retaliation for his dismissal of Mr. Seymour and because of racial animus, conspired to deny him access-to the courts by affirming the dismissal of Green v. Dorrell, and by denying rehearing en banc in that case. He seeks a declaratory judgment that his rights have been violated and a permanent injunction that prohibits the defendant judges, their successors in office, and their agents and employees from (1) “rendering nothing less than well-founded, logical, and impartial judicial decisions” in any of Green’s present or future appeals, and (2) retaliating against him for the present suit. He also seeks compensatory damages of $1 million and punitive damages of $1 million from Mr. Seymour, apparently based on the latter’s alleged participation in the conspiracy.

The only factual basis Green sets forth for this conspiracy claim are Mr. Seymour’s alleged threats and this court’s panel decision and denial of rehearing in Green v. Dorrell, which he asserts demonstrate that the judges of this court conspired with Mr. Seymour. He apparently accepts this court’s factual description in the panel opinion of the proceedings in that case, since he refers to his petition for writ of certiorari there, which tracked that factual description.

The district court granted Green permission to proceed in forma pauperis but dismissed his complaint without prejudice before service of process. The court ruled that the “complaint lacks an arguable basis in law and in fact, and should be dismissed as frivolous.” The court stated:

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Bluebook (online)
59 F.3d 1073, 1995 WL 410167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-seymour-ca10-1995.