Nelson v. Gallagher

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 26, 2021
• Docket: 20-1426
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 26, 2021 _________________________________ Christopher M. Wolpert Clerk of Court BRETT ANDREW: HOUSE OF NELSON,

Plaintiff - Appellant, No. 20-1423 v. (D.C. No. 1:20-CV-03506-CMA) (D. Colo.) LEWIS T. BABCOCK; GORDON P. GALLAGHER,

Defendants - Appellees. _________________________________

BRETT ANDREW NELSON, House of Nelson,

Plaintiff - Appellant,

v. No. 20-1426 (D.C. No. 1:20-CV-03424-CMA) GORDON GALLAGHER; LEWIS T. (D. Colo.) BABCOCK,

ORDER AND JUDGMENT * _________________________________

Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. _________________________________

Plaintiff filed two suits against United States District Judge Lewis T. Babcock

and United States Magistrate Judge Gordon P. Gallagher, both of the District of

Colorado, taking issue with their disposition of two prior cases he filed in that

district. Appeal No. 20-1423 and its underlying district court case challenge the

disposition of Nelson v. Talbot, No. 20-cv-1053-LTB-GPG (D. Colo. May 7, 2020),

aff’d, No. 20-1424 (10th Cir. Jan. 13, 2021). Appeal No. 20-1426 and its underlying

district court case challenge the disposition of Nelson v. Walzl, No. 20-cv-1012-

LTB-GPG (D. Colo. May 7, 2020), aff’d, No. 20-1180 (10th Cir. Oct. 9, 2020).

Specifically, Plaintiff challenges Judge Gallagher’s recommendations that the prior

cases be dismissed and Judge Babcock’s orders adopting those recommendations.

Pursuant to its authority under 28 U.S.C. § 1915A, the district court sua sponte

dismissed both of Plaintiff’s complaints as frivolous, malicious, and abusive.

Frivolous because the judges possessed absolute immunity from suit. And malicious

and abusive because the district court had advised Plaintiff on numerous occasions

that he may not sue judges for damages just because he disagrees with their orders or

rulings. The district court granted Plaintiff’s motions to proceed in forma pauperis in

both cases, but certified that any appeals would not be taken in good faith and

therefore preemptively denied any motion for IFP status on appeal. Finally, the

district court ordered Plaintiff to show cause why it should not impose filing

restrictions on him. Plaintiff failed to respond and thus the court imposed the

proposed filing restrictions.

2 Judges enjoy absolute immunity from suit for actions taken in their judicial

capacity except where they act in the clear absence of all jurisdiction. See Mireles v.

Waco, 502 U.S. 9, 11–12 (1991). We agree with the district court’s conclusion that

the judges acted within their jurisdiction when they dismissed Plaintiff’s prior cases

and therefore absolute immunity applies. We further agree that Plaintiff’s insistence

on filing these actions, despite repeated warnings that he may not sue judges because

he disagrees with their rulings, warrants a finding that the suits are malicious and

abusive. Finally, “[f]ederal courts have the inherent power to regulate the activities

of abusive litigants by imposing carefully tailored restrictions in appropriate

circumstances.” Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007). Plaintiff

has identified no error in the district court’s imposition of filing restrictions.

Where the district court accurately analyzes an issue, we see no useful purpose

in writing at length. We have thoroughly reviewed the records and Plaintiff’s

appellate briefs and discern no reversible error. Therefore, exercising jurisdiction

under 28 U.S.C. § 1291, we AFFIRM in both cases for substantially the same reasons

set forth in the district court’s orders. Furthermore, Plaintiff’s motion to proceed IFP

is DENIED.

Entered for the Court

Joel M. Carson III Circuit Judge