Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court MEGAN KYTE,
Plaintiff - Appellant,
v. No. 23-1369 (D.C. No. 1:23-CV-02999-LTB) STATE OF COLORADO, (D. Colo.)
Defendant - Appellee. –––––––––––––––––––––––––––––––––––
MEGAN KYTE,
Plaintiff - Appellant, No. 23-1371 v. (D.C. No. 1:23-CV-02971-LTB) (D. Colo.) STATE OF OREGON,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BRISCOE, and EID, Circuit Judges.** _________________________________ * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the Appellant’s request for a decision on the briefs without oral argument (the Appellees have not filed briefs). See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 2
Megan Kyte appeals pro se the district court’s dismissals without prejudice of
two actions under Federal Rule of Civil Procedure 41(b).1 Ms. Kyte also requests
leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the district court’s dismissals and deny Ms. Kyte’s request to
proceed ifp.
We also warn Ms. Kyte that we may restrict her from appealing ifp the dismissal
of cases if she continues to disregard the filing restrictions the district court has placed
upon her.
I. BACKGROUND
In 2022, the United States District Court for the District of Colorado enjoined
Ms. Kyte from filing pro se civil actions in that court without (1) representation of an
attorney licensed to practice in Colorado or (2) leave of the court to proceed pro se.
Kyte v. Mayes, No. 22-cv-02392, slip op. at 5-9 (D. Colo. Oct. 31, 2022).2 Despite
these restrictions, Ms. Kyte filed two pro se actions without obtaining leave of the
court. In the first, she alleged that the State of Colorado discriminated against her by
failing to issue her a state identification card. In the second, she made the same
allegation against the State of Oregon.
1 Because Ms. Kyte appears pro se, “we liberally construe [her] filings, but we will not act as [her] advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 2 We may take judicial notice of publicly filed court records. United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
2 Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 3
The district court dismissed both actions because Ms. Kyte was not
represented by counsel and did not obtain permission to proceed pro se. It also
denied Ms. Kyte ifp status on appeal, certifying that any appeals would not be in
good faith under 28 U.S.C. § 1915(a)(3).
Ms. Kyte appeals the district court’s dismissals.
II. DISCUSSION
A. District Court Dismissals
We review a district court’s dismissal for failure to comply with a court order
for abuse of discretion. Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir. 2003).
A district court abuses its discretion when it “makes a clear error of judgment or
exceeds the bounds of permissible choice in the circumstances.” Ecclesiastes
9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007)
(quotations and alterations omitted).
Legal Background
a. Federal Rule of Civil Procedure 41(b)
Federal Rule of Civil Procedure 41(b) provides that “[i]f [a] plaintiff fails to
. . . comply with . . . a court order, a defendant may move to dismiss the action.”
“Rule [41(b)] has long been interpreted to permit courts to dismiss actions sua sponte
for a plaintiff’s failure to . . . comply with the . . . court’s orders.” Olsen v. Mapes,
333 F.3d 1199, 1204 n.3 (10th Cir. 2003).
3 Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 4
b. Filing restrictions
“Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under appropriate circumstances.”
Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Filing restrictions “are
appropriate where (1) the litigant’s lengthy and abusive history is set forth; (2) the
court provides guidelines as to what the litigant must do to obtain permission to file
an action; and (3) the litigant received notice and an opportunity to oppose the
court’s order [imposing filing restrictions] before it [was] instituted.” Id. (quotations
omitted).
Application
On appeal, Ms. Kyte does not challenge the filing restrictions or the district
court’s finding that she did not comply with them, and she does not identify any
efforts she made to comply. She instead reasserts her arguments against Colorado
and Oregon and says that she “do[es] not want an attorney.” Aplt. Br. at 2-4.
Ms. Kyte has waived any challenge to the district court’s dismissal orders by failing
to address the basis for its rulings on appeal. See Toevs v. Reid, 685 F.3d 903, 911
(10th Cir. 2012). She otherwise has failed to show that the district court’s dismissals
for failure to comply with filing restrictions was an abuse of discretion.
B. Warning
Although “litigiousness alone is not a sufficient reason to restrict access to the
court,” Ms. Kyte’s “abusive and repetitive filings have strained the resources of this
court.” In re Winslow, 17 F.3d 314, 315 (10th Cir. 1994). In the past two years, she
4 Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 5
has filed ten appeals, including the two we decide today. In all eight of her resolved
appeals, we have affirmed the district court’s dismissal or entered dismissal orders
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Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court MEGAN KYTE,
Plaintiff - Appellant,
v. No. 23-1369 (D.C. No. 1:23-CV-02999-LTB) STATE OF COLORADO, (D. Colo.)
Defendant - Appellee. –––––––––––––––––––––––––––––––––––
MEGAN KYTE,
Plaintiff - Appellant, No. 23-1371 v. (D.C. No. 1:23-CV-02971-LTB) (D. Colo.) STATE OF OREGON,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BRISCOE, and EID, Circuit Judges.** _________________________________ * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the Appellant’s request for a decision on the briefs without oral argument (the Appellees have not filed briefs). See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 2
Megan Kyte appeals pro se the district court’s dismissals without prejudice of
two actions under Federal Rule of Civil Procedure 41(b).1 Ms. Kyte also requests
leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the district court’s dismissals and deny Ms. Kyte’s request to
proceed ifp.
We also warn Ms. Kyte that we may restrict her from appealing ifp the dismissal
of cases if she continues to disregard the filing restrictions the district court has placed
upon her.
I. BACKGROUND
In 2022, the United States District Court for the District of Colorado enjoined
Ms. Kyte from filing pro se civil actions in that court without (1) representation of an
attorney licensed to practice in Colorado or (2) leave of the court to proceed pro se.
Kyte v. Mayes, No. 22-cv-02392, slip op. at 5-9 (D. Colo. Oct. 31, 2022).2 Despite
these restrictions, Ms. Kyte filed two pro se actions without obtaining leave of the
court. In the first, she alleged that the State of Colorado discriminated against her by
failing to issue her a state identification card. In the second, she made the same
allegation against the State of Oregon.
1 Because Ms. Kyte appears pro se, “we liberally construe [her] filings, but we will not act as [her] advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 2 We may take judicial notice of publicly filed court records. United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
2 Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 3
The district court dismissed both actions because Ms. Kyte was not
represented by counsel and did not obtain permission to proceed pro se. It also
denied Ms. Kyte ifp status on appeal, certifying that any appeals would not be in
good faith under 28 U.S.C. § 1915(a)(3).
Ms. Kyte appeals the district court’s dismissals.
II. DISCUSSION
A. District Court Dismissals
We review a district court’s dismissal for failure to comply with a court order
for abuse of discretion. Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir. 2003).
A district court abuses its discretion when it “makes a clear error of judgment or
exceeds the bounds of permissible choice in the circumstances.” Ecclesiastes
9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007)
(quotations and alterations omitted).
Legal Background
a. Federal Rule of Civil Procedure 41(b)
Federal Rule of Civil Procedure 41(b) provides that “[i]f [a] plaintiff fails to
. . . comply with . . . a court order, a defendant may move to dismiss the action.”
“Rule [41(b)] has long been interpreted to permit courts to dismiss actions sua sponte
for a plaintiff’s failure to . . . comply with the . . . court’s orders.” Olsen v. Mapes,
333 F.3d 1199, 1204 n.3 (10th Cir. 2003).
3 Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 4
b. Filing restrictions
“Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under appropriate circumstances.”
Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Filing restrictions “are
appropriate where (1) the litigant’s lengthy and abusive history is set forth; (2) the
court provides guidelines as to what the litigant must do to obtain permission to file
an action; and (3) the litigant received notice and an opportunity to oppose the
court’s order [imposing filing restrictions] before it [was] instituted.” Id. (quotations
omitted).
Application
On appeal, Ms. Kyte does not challenge the filing restrictions or the district
court’s finding that she did not comply with them, and she does not identify any
efforts she made to comply. She instead reasserts her arguments against Colorado
and Oregon and says that she “do[es] not want an attorney.” Aplt. Br. at 2-4.
Ms. Kyte has waived any challenge to the district court’s dismissal orders by failing
to address the basis for its rulings on appeal. See Toevs v. Reid, 685 F.3d 903, 911
(10th Cir. 2012). She otherwise has failed to show that the district court’s dismissals
for failure to comply with filing restrictions was an abuse of discretion.
B. Warning
Although “litigiousness alone is not a sufficient reason to restrict access to the
court,” Ms. Kyte’s “abusive and repetitive filings have strained the resources of this
court.” In re Winslow, 17 F.3d 314, 315 (10th Cir. 1994). In the past two years, she
4 Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 5
has filed ten appeals, including the two we decide today. In all eight of her resolved
appeals, we have affirmed the district court’s dismissal or entered dismissal orders
without reaching the merits of her appeal.3 Three of the resolved appeals challenged
the district court’s dismissals for failure to comply with its filing restrictions.4 In
each of those cases, Ms. Kyte demonstrated no attempt to comply with the
restrictions and did not address the basis for the dismissals on appeal. The same is
true here.
We therefore warn Ms. Kyte that we may restrict her from appealing ifp the
dismissal of cases if she continues to disregard the filing restrictions the district court has
placed upon her.
III. CONCLUSION
We affirm the district court’s dismissals. Because Ms. Kyte has not presented
any “reasoned, nonfrivolous argument” in support of her appeal, we also deny her
3 In re: Megan Kyte, No. 22-1121, slip op. (10th Cir. May 18, 2022); Kyte v. Kyte, No. 22-1213, 2022 WL 3910507 (10th Cir. Aug. 31, 2022); Kyte v. IRS, No. 22-1318, slip op. (10th Cir. Dec. 7, 2022); Kyte v. King, No. 22-1317, slip op. (10th Cir. Dec. 20, 2022); Kyte v. Mayes, No. 22-1397, slip op. (10th Cir. Jan. 23, 2023); Kyte v. Denver Health, No. 23-1199, 2023 WL 4742407 (10th Cir. July 25, 2023); Kyte v. Oregon, No. 23-1221, 2023 WL 5606234 (10th Cir. Aug. 30, 2023); Kyte v. Colorado DMV, No. 23-1045, 2023 WL 5995491 (10th Cir. Sept. 15, 2023). 4 Kyte v. Denver Health, 2023 WL 4742407; Kyte v. Oregon, 2023 WL 5606234; Kyte v. Colorado DMV, 2023 WL 5995491.
5 Appellate Case: 23-1369 Document: 010110983962 Date Filed: 01/16/2024 Page: 6
request to proceed ifp. Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312 (10th
Cir. 2005).
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge