Sieverding v. Colorado Bar Ass'n

469 F.3d 1340, 2006 U.S. App. LEXIS 28145
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 14, 2006
DocketNo. 06-1038
StatusPublished
Cited by66 cases

This text of 469 F.3d 1340 (Sieverding v. Colorado Bar Ass'n) 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
Sieverding v. Colorado Bar Ass'n, 469 F.3d 1340, 2006 U.S. App. LEXIS 28145 (10th Cir. 2006).

Opinion

BALDOCK, Circuit Judge.

Kay Sieverding, proceeding pro se, appeals from the district court’s order imposing filing restrictions. We affirm the district court’s imposition of filing restrictions, but we conclude that a portion of the order must be modified.

Background

Ms. Sieverding, her husband, and two sons filed a complaint in the District of Colorado in October 2002. The complaint was 106 pages long and set forth claims against thirty-six individuals or entities. The underlying issue in the case related to the alleged violation of the Sieverdings’ rights with regard to zoning decisions that affected them and their former neighbors. During the pendency of the case, the Siev-erdings filed more than 100 motions. In October 2003, the magistrate judge assigned to the case issued a sixty-one page recommendation that the case be dismissed with prejudice; that the Sieverd-ings be required to pay defendants’ costs and fees; and that they be enjoined from commencing further litigation in the District of Colorado regarding these events without first obtaining counsel. The district court accepted and adopted the recommendations in an order entered on [1343]*1343March 19, 2004, but expanded on the magistrate judge’s recommended filing restrictions by enjoining the Sieverdings from filing lawsuits related to this subject matter in the District of Colorado or any other court.

The Sieverdings filed three appeals from the March 2004 order in this court and they were consolidated. The district court’s order adopting the magistrate judge’s recommendation was summarily affirmed on appeal. We observed that “appellants did not assert error with the imposition of fifing restrictions and, therefore, this court will enforce those restrictions.” Sieverding v. Colo. Bar Ass’n, 126 Fed.Appx. 457, 459 (10th Cir.2005).

In late 2004 and 2005, the Sieverdings continued filing actions relating to the subject matter of their previous lawsuit. They filed five new civil actions in the federal district courts in Minnesota, Northern Illinois, and the District of Columbia; one new civil action in the state court in Denver County, Colorado; and one appeal in the Eighth Circuit Court of Appeals. In the summer of 2005, the defendants filed a motion requesting a show cause order as to why the Sieverdings should not be sanctioned for violating the fifing restrictions portion of the March 2004 order. On September 2, the district court held a hearing and found the Siev-erdings to be in contempt of court for violating the March 2004 order. The district court gave both of the Sieverdings the option of dismissing the lawsuits that remained pending in the District of Columbia and Colorado state court or going to jail. Ms. Sieverding refused to dismiss the lawsuits and was sent to jail. Mr. Sieverd-ing withdrew his name from the pending cases.

On January 4, 2006, Judge Nottingham held a show cause hearing, and ordered Ms. Sieverding to dismiss the remaining lawsuits that had been filed in violation of the March 2004 order. Ms. Sieverding was released from custody with the condition that she dismiss all of her remaining lawsuits by January 11. At that hearing, Judge Nottingham also entered another order, which prohibited Ms. Sieverding from fifing any further lawsuits anywhere in this country unless she is represented by a lawyer or unless the district court specifically approves her fifing of a given lawsuit. This order broadened the March 2004 order because it was not limited by subject matter. The district court entered a written order on January 31 that memorialized the verbal order from January 4 and gave support for his fifing restrictions decision. Ms. Sieverding filed a petition for mandamus from the January 4 order and this court construed it as a notice of appeal from the verbal January 4 order as memorialized in the January 31 order.

Discussion

“[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.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.1989) (citations omitted) (per curiam). Federal courts have the inherent power “to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.” Id. at 352 (quoting Cotner v. Hopkins, 795 F.2d 900, 902-03 (10th Cir.1986)). We agree with the district court^that filing restrictions were appropriate in this case. We conclude, however, that the restrictions were not carefully tailored as required by our case láw and that a portion of the fifing restrictions order must be modified.

The substance of the fifing restriction states:

[1344]*1344Kay Sieverding and David Sieverding are hereafter prohibited from commencing any pro se litigation in any court in the United States on any subject matter unless they meet the requirements of Paragraph 2 below.

R., Vol. I, Doc. 788 at 7 ¶ 1. Paragraph 2 explains that the Sieverdings must seek approval from the District of Colorado before commencing any pro se litigation in any court in the United States on any subject matter. Id. at ¶ 2. The order does not apply if the Sieverdings are represented by a licensed attorney. Id. at ¶ 3.

This filing restrictions order is unlike other filing restrictions orders that have been reviewed by this court because it extends to any court in this country as opposed to being limited to the jurisdiction of the court issuing the order. The order thereby includes every state court, every federal district court and every federal court of appeal. Appellees cite to only one case that involved similarly broad filing restrictions, Martin-Trigona v. Lavien, 737 F.2d 1254 (2d Cir.1984), to support their argument that the breadth of the district court’s order was appropriate.

In Martm-Trigona, the Second Circuit was reviewing an order imposing restrictions that enjoined the filing of any action in any state or federal court in the United States arising out of plaintiffs bankruptcy proceedings, unless certain conditions were met. The order did, however, include an exception for certain types of filings, including filings in the federal appellate courts. See id. at 1259 (“Nothing in this order shall be construed as denying [plaintiff] access to the United States Courts of Appeals.”). The Second Circuit upheld the portion of the filing restrictions order that prohibited the plaintiff from filing an action in any federal district court in the country without prior permission. See id. at 1262. The court determined, however, that the district court erred by extending the filing restrictions to include state courts, although the court left intact the requirement that Mr. Martin-Trigona notify the state courts regarding his prior litigation history. See id. at 1262-63.

We disagree with the Second Circuit’s decision to uphold the broad filing restriction limiting access to any federal district court in the country and we will not uphold such a broad filing restriction in this case.

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469 F.3d 1340, 2006 U.S. App. LEXIS 28145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sieverding-v-colorado-bar-assn-ca10-2006.