Greenlee v. United States Postal Service ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 19, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
RICHARD H. GREENLEE,
Plaintiff-Appellant,
v. No. 08-3330
(D.C. No. 2:08-CV-02479-CM-DJW)
UNITED STATES POSTAL (D. Kan.)
SERVICE,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.
Richard Greenlee appeals pro se the district court’s dismissal of his
complaint against the United States Postal Service (USPS), his former employer.
He has filed an application under 28 U.S.C. § 1915 to proceed in forma pauperis
(ifp) in this appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we deny his
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
application to proceed ifp and dismiss his appeal as frivolous. We also impose
appellate filing restrictions on Mr. Greenlee.
Background
The district court imposed filing restrictions on Mr. Greenlee in 2007,
stating that “[b]ecause plaintiff has disregarded prior warnings and continues to
pursue claims against [USPS] that have been dismissed and described as
‘delusional,’ filing restrictions are appropriate.” Greenlee v. U.S. Postal Serv.,
No. 06-2167-CM, 2007 WL 141016, at *6 (D. Kan. Jan. 17, 2007) (unpublished).
The court restricted Mr. Greenlee from filing future complaints against USPS as
follows:
Plaintiff is prohibited from filing another case in this district against
this defendant, unless he is represented by counsel or, if he proceeds
pro se unless he provides a notarized affidavit that verifies with
particularity that the new action is commenced on grounds that are
distinguishable from those previously dismissed. Any proposed
complaint against defendant must list all previous actions against
defendant and provide notice of this filing restriction. Upon
compliance with these requirements, the court will review the
complaint and determine whether it should be accepted for filing.
Id. This court concluded on appeal that “given the frequency, redundancy, heft,
and sheer implausibility of Greenlee’s complaints, these modest restrictions are
more than appropriate to protect the limited resources of the district court as well
as our own.” Greenlee v. U.S. Postal Serv., 247 F. App’x 953, 954 n.3 (10th Cir.
2007). Mr. Greenlee filed a new complaint against USPS in October 2008. The
district court examined the complaint, found that it failed to comply with the
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filing restrictions, and dismissed it sua sponte without prejudice. Mr. Greenlee
appeals that ruling.
Denial of Leave to Proceed IFP on Appeal
and Dismissal of Appeal as Frivolous
We have authority to deny an ifp application and dismiss a frivolous
appeal, without reaching the merits, when the appellant seeks to proceed ifp. See
Hunt v. Downing, 112 F.3d 452, 453 (10th Cir. 1997). Under 28 U.S.C.
§ 1915(e)(2)(B)(i), a “court shall dismiss the case at any time if the court
determines that . . . the action or appeal . . . is frivolous.” “An appeal is frivolous
when the result is obvious, or the appellant’s arguments of error are wholly
without merit.” Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993)
(quotations omitted); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989)
(“[A]n appeal on a matter of law is frivolous where none of the legal points are
arguable on their merits.” (quotation and brackets omitted)).
We liberally construe a pro se appellant’s appeal briefs. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). In his 34-page
appeal brief, Mr. Greenlee appears to make two references to the district court’s
filing restrictions. But even affording him a liberal construction, we conclude
that he presents no argument of error in the district court’s conclusion that he
failed to comply with the restrictions in filing his October 2008 complaint. Nor
can we identify any non-frivolous argument in favor of reversing that decision.
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Therefore, we deny Mr. Greenlee’s application to proceed ifp and dismiss his
appeal. See Hunt, 112 F.3d at 453 (10th Cir. 1997).
Appellate Filing Restrictions
Mr. Greenlee is a frequent filer in this court, as well as in the district court.
Before his October 2008 complaint, he had filed five other pro se complaints
against USPS. See Greenlee, 247 F. App’x at 953-54. Mr. Greenlee appealed the
district court’s dismissal of each of those complaints. This court either affirmed
the dismissals, see id. at 953-54 & n.1, or affirmed the district court’s denial of
his motion under Fed. R. Civ. P. 60(b), see Greenlee v. U.S. Postal Serv., 83 F.
App’x 308, 308-09 (10th Cir. 2003). This is the seventh appeal Mr. Greenlee has
filed with this court. 1
We conclude that Mr. Greenlee’s previous appellate filings warrant
imposing limited restrictions upon him with respect to further pro se filings with
this court.
Federal courts have the inherent power to regulate the activities of
abusive litigants by imposing carefully tailored restrictions in
appropriate circumstances. An injunction limiting further filings
may be imposed where the litigant’s lengthy and abusive history is
set forth; the court provides guidelines as to what the litigant may do
1
Mr. Greenlee’s prior appeals involving claims against USPS include case
numbers 94-3139, 98-3052, 03-3226, 05-3269, 06-3347, and 07-3029. In
addition, he filed another pro se complaint against USPS in May 2009, which the
district court dismissed as frivolous. He appealed that decision—filing his eighth
appeal in this court—but because he failed to file a brief, we dismissed the appeal
for failure to prosecute. See case number 09-3146.
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to obtain its permission to file an action; and the litigant receives
notice and an opportunity to oppose the court’s order before it is
implemented.
Ford v. Pryor, 552 F.3d 1174, 1180 (10th Cir. 2008) (citation and quotations
omitted) (imposing filing restrictions after plaintiff raised frivolous and repetitive
claims in four appeals). “[A] distinction has been made between indiscriminate
filers and those who have limited their repetitive filings to a particular subject.
Under [the latter] circumstances, the filing restrictions have been limited to the
subject matter of the previous lawsuits.” Id. at 1181 (citation omitted).
The district court restricted Mr. Greenlee’s future filings only as to claims
against USPS. We conclude that appellate filing restrictions of that limited scope
are also appropriate. Therefore, in order to proceed pro se in this court in any
appeal or original proceeding filed against USPS, Mr. Greenlee must provide the
court with:
1. A list of all appeals or original proceedings filed against USPS, whether
currently pending or previously filed with this court, including the name, number,
and citation, if applicable, of each case, and the current status or disposition of
each appeal or original proceeding; and
2. A notarized affidavit, in proper legal form, which recites the issues he
seeks to present, including a short discussion of the legal basis asserted therefor,
and describing with particularity the order being challenged. The affidavit must
also certify, to the best of Mr. Greenlee’s knowledge, that the legal arguments
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being raised are not frivolous or made in bad faith, that they are warranted by
existing law or a good faith argument for the extension, modification, or reversal
of existing law, that the appeal or original proceeding is not interposed for any
improper purpose, such as delay or to needlessly increase the cost of litigation,
and that he will comply with all appellate and local rules of this court.
These filings shall be submitted to the Clerk of the court, who shall forward
them for review to the Chief Judge or his designee, to determine whether to
permit Mr. Greenlee to proceed with a pro se appeal or original proceeding.
Without such authorization, the matter will be dismissed. If the Chief Judge or
his designee authorizes a pro se appeal or original proceeding to proceed, an order
shall be entered indicating that the matter shall proceed in accordance with the
Federal Rules of Appellate Procedure and the Tenth Circuit Rules.
Mr. Greenlee shall have ten days from the date of this order and judgment
to file written objections, limited to fifteen pages, to these proposed filing
restrictions. If Mr. Greenlee does not file timely objections, the filing restrictions
shall take effect twenty days from the date of this order and judgment. If
Mr. Greenlee does file timely objections, these filing restrictions shall not take
effect unless the court rules against Mr. Greenlee on his objections, in which case
these filing restrictions shall apply to any matter filed in this court after that
ruling.
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Conclusion
Mr. Greenlee’s application to proceed ifp on appeal is DENIED and his
appeal is DISMISSED. His objections, if any, to the proposed filing restrictions
described above are due within TEN DAYS of the date of this order and
judgment.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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