Parker v. Crow

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS March 16, 2021 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court

ALVIN PARKER,

Petitioner - Appellant,

v. No. 20-5117 (D.C. No. 4:20-CV-00125-GKI-JFJ) SCOTT CROW, Director, Oklahoma (N.D. Okla.) Department of Corrections,

Respondent - Appellee.

ORDER AND JUDGMENT *

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.

After examining Alvin Parker’s written submissions and the 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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Parker appeals from an order of the district court imposing on him targeted

filing restrictions. 1 Parker’s appeal is frivolous. In an order dated May 18, 2020,

the district court dismissed as successive Parker’s assertion he had discharged his

199-year Oklahoma sentence for second-degree murder after a former felony

conviction. The district court discussed at length Parker’s history of raising in

28 U.S.C. § 2241 petitions the meritless assertion his sentence was discharged by

operation of Oklahoma’s never-in-effect Truth In Sentencing Act. Furthermore,

the district court specifically warned Parker that if he filed another § 2241

petition he would be subject to the imposition of filing restrictions. When Parker

sought to appeal from the district court’s order of dismissal, this court denied him

the necessary COA and dismissed his appeal. Parker v. Crow, 822 F. App’x 716

(10th Cir. 2020). In so doing, this court concluded Parker failed to identify a

non-frivolous federal constitutional claim. Id. at 719.

Despite the district court’s warning and this court’s definitive statement

that his Truth In Sentencing Act claim was indisputably meritless, Parker filed in

the district court a motion in the nature of Fed. R. Civ. P. 60(b) (“Motion to

1 Also before this court is Parker’s request for a certificate of appealability (“COA”). This court concludes, however, that Parker does not need a COA to appeal from the district court’s imposition of filing restrictions. United States v. Akers, 807 F. App’x 861, 865 (10th Cir. 2020) (unpublished disposition cited solely for its persuasive value). Accordingly, Parker’s request for a COA is dismissed as moot.

-2- Vacate Void Judgment”). The district court concluded Parker’s Rule 60(b)

motion was nothing more than a disguised § 2241 motion and denied it on the

ground it was meritless. 2 When Parker then filed a motion to reconsider, the

district court denied the motion and ordered Parker to show cause why he should

not be subject to restrictions on his ability to file further § 2241 petitions.

Finding Parker’s response lacking, the district court imposed targeted restrictions

on Parker’s ability to file future pro se § 2241 petitions.

This court reviews the imposition of filing restrictions for an abuse of

discretion. Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989). “[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.” Id. at 353 (citation omitted). Federal courts have statutory

authority “to enjoin litigants who abuse the court system by harassing their

opponents.” Id. at 352 (citing 28 U.S.C. § 1651(a)). That is, federal courts may

“regulate the activities of abusive litigants by imposing carefully tailored

restrictions under the appropriate circumstances.” Id. (quotation omitted). Filing

restrictions “are proper where a litigant’s abusive and lengthy history is properly

2 In an order filed coterminously with the instant order, this court has denied Parker’s request for a COA and dismissed his appeal from the district court’s dismissal of his Rule 60(b) motion. Parker v. Crow, No. 20-5107 (10th Cir. March __, 2020).

-3- set forth,” the court provides guidelines as to what the litigant “must do to obtain

the court’s permission to file an action,” and the litigant receives “notice and an

opportunity to oppose the court’s order before it is instituted.” Id. at 354.

The district court here complied with all the requirements necessary for

imposing filing restrictions. It recounted Parker’s lengthy, abusive filing history;

provided Parker with detailed guidelines for obtaining the court’s permission to

file an action; and provided Parker with an opportunity to oppose the restrictions.

Parker’s sole argument on appeal is that because his motion for reconsideration

was a true Fed. R. Civ. P. 59(e) motion, it was improper for the district court to

impose filing restrictions based on the filing of that motion. Parker’s assertion is

beside the point. By filing yet another indisputably meritless challenge to his

Oklahoma state sentence based on the Truth In Sentencing Act, Parker continued

a blatant practice of abusing the judicial process and wasting judicial resources.

The district court did not abuse its discretion by imposing filing restrictions.

The order of the district court imposing upon Parker filing restrictions is

hereby AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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