Werner v. Utah

32 F.3d 1446, 1994 WL 412442
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 9, 1994
DocketNo. 94-535
StatusPublished
Cited by63 cases

This text of 32 F.3d 1446 (Werner v. Utah) 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
Werner v. Utah, 32 F.3d 1446, 1994 WL 412442 (10th Cir. 1994).

Opinion

ORDER

PER CURIAM.

This is an original proceeding for extraordinary relief. We deny such relief and impose appellate sanctions.

[1447]*1447Petitioner filed a “Petition to Remove § 1983 Jurisdiction from Utah District Courts.” He alleged that he had attempted to file a complaint in the district court in Utah, but the complaint was returned to him unfiled and leave to proceed in forma pauper-is was denied. We construed the filing before us as a petition for writ of mandamus and requested that the Honorable David K. Winder file a response to the petition.

Chief Judge Winder’s response indicated that petitioner, who is a prisoner in the Utah State Prison, is an abusive litigant who has filed over fifty cases in district court since 1988. Most of the cases were dismissed. Also, most were repetitive or duplicative of other filings and many were without merit and frivolous. There are several district court cases still pending. In addition, petitioner has refused to accept mailings from the district court, and he has written threats, obscenities, or profanities on the refused mail.

The district court has implemented procedures to deal with petitioner’s abusive practices. Upon receipt of any complaint from petitioner, the clerk of court refers the complaint to a magistrate judge for review to determine whether the complaint is lacking in merit, duplicative, or frivolous. If the magistrate judge determines that any of the foregoing is true, the complaint is transmitted to Chief Judge Winder for further review.

Chief Judge Winder stated that the above procedures were followed when petitioner attempted to file the complaint at issue. Although the fifty-four page complaint with over one hundred exhibits was returned to petitioner, Chief Judge Winder recalled that the complaint related to a claimed denial of religious freedom, which had been raised in other cases. Both Magistrate Judge Samuel Alba and Chief Judge Winder determined that the complaint lacked merit and should not be filed and that petitioner should not be allowed to proceed in forma pauperis.

Based on petitioner’s abusiveness and the lack of merit to the complaint he was attempting to file, Chief Judge Winder believes that mandamus relief is not appropriate.

Mandamus is a drastic remedy, which is to be used only in extraordinary situations. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189, 66 L.Ed.2d 193 (1980). Traditionally, mandamus has been used ‘“to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’” Mallard v. United States Dist. Court, 490 U.S. 296, 308, 109 S.Ct. 1814, 1821, 104 L.Ed.2d 318 (1989) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). A petitioner must establish clear abuse of discretion or conduct amounting to usurpation of judicial power by the district court. Id. at 309, 109 S.Ct. at 1822. Also, a petitioner must establish that he lacks alternatives to obtain the relief he desires and that his right to the writ is clear and indisputable. Id. Mandamus relief is appropriate, however, when a petitioner is effectively excluded from federal court. McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir.1991).

Petitioner has not shown that he has been effectively excluded from federal court. He has no absolute, unconditional right of access to the courts and no constitutional right of access to prosecute frivolous or malicious actions. See Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315 (10th Cir.1994). He was given the privilege of proceeding in forma pauperis in many cases, but he abused that privilege. See id. Further, he had been given the leniency due pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972).

When a litigant abuses these privileges, filing restrictions are appropriate. Winslow, 17 F.3d at 315; see also In re Sindram, 498 U.S. 177, 179-80, 111 S.Ct. 596, 597, 112 L.Ed.2d 599 (1991) (although there is waiver of filing fees and costs for indigent litigants in order to promote interests of justice, goal of fairly dispensing justice is compromised when the court is forced to devote limited resources to processing repetitious and frivolous requests). A court may impose restrictions commensurate with its inherent power to enter orders “necessary or appropriate” in aid of jurisdiction. 28 U.S.C. [1448]*1448§ 1651; see In re Winslow, 17 F.3d at 315; Johnson v. Cowley, 872 F.2d 342, 344 (10th Cir.1989). This court approves restrictions placed on litigants with a documented lengthy history of vexatious, abusive actions, so long as the court publishes guidelines about what the plaintiff must do to obtain court permission to file an action, and the plaintiff is given notice and an opportunity to respond to the restrictive order. See Ketchurn v. Cruz, 961 F.2d 916, 921 (10th Cir.1992) (citing Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir.1989)).

Based on Chief Judge Winder’s response, it is clear that petitioner is an abusive litigant in the district court and that the district court complied with due process requirements in imposing filing restrictions on petitioner. Petitioner has not shown that the district court so clearly abused its discretion or usurped its power in refusing to file the complaint at issue here that mandamus relief would be appropriate. Further, if petitioner disagrees with the district court’s filing restrictions, his avenue for review is an appeal from the order establishing the restrictions. Cf. United States v. Gundersen, 978 F.2d 580, 582 (10th Cir.1992) (mandamus is not a substitute for an appeal). Accordingly, we deny petitioner’s request for a writ of mandamus.

In addition, based on petitioner’s appellate filings history and abuse of the appellate process, we have sua sponte decided to impose restrictions on future filings in this court by petitioner “commensurate with our inherent power to enter orders ‘necessary or appropriate’ in aid of our jurisdiction” under § 1651. Winslow, 17 F.3d at 315; see also Tripati, 878 F.2d at 352 (appellate court has same power as district court to enjoin abusive litigants under § 1651). Since 1990, petitioner has filed twenty-two matters in this court.1 Ten matters have been filed this year.

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Cite This Page — Counsel Stack

Bluebook (online)
32 F.3d 1446, 1994 WL 412442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/werner-v-utah-ca10-1994.