Olsen v. State of New Mexico , 128 F. App'x 707 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 15 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
TOM OLSEN; NAOMI OLSEN, and
Does I through IV,
Plaintiffs - Appellants,
No. 04-2196
v. (D.C. No. CIV-03-207 JB/LCS)
(D. N.M.)
STATE OF NEW MEXICO,
Department of Education, Division of
Vocational Rehabilitation; MICHAEL
DAVIS, State Superintendent of
Public Instruction; TERRY
BRIGANCE, Assistant Superintendent
for Division of Vocational
Rehabilitation; LENA TRUJILLO
CHAVEZ, Vocational Rehabilitation;
LARRY BORREGO, Assistant
Director Vocational Rehabilitation;
ANTHONY LUJAN, Area Manager
Vocational Rehabilitation; CHARLES
WHITE, Division of Vocation
Rehabilitation Director, Disability
Determination Services; LEE
MARTINEZ, Vocational
Rehabilitation, sued individually and
in his official capacity; KAREN
PROVINE; NADINE WELLS;
JUDITH TESSE TANNER,
Department of Vocational
Rehabilitation; ELIZABETH
EMERSON,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO , PORFILIO , and BALDOCK , Circuit Judges.
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.
Plaintiffs Tom Olsen and Naomi Olsen, proceeding pro se , appeal the
district court’s orders dismissing their complaint against defendants, the State of
New Mexico Department of Education, Division of Vocational Rehabilitation
(DVR), ten DVR employees in their official capacities, and one DVR employee in
his official and individual capacity. We affirm, and we order the Olsens to show
cause why they should not be subject to prospective filing restrictions in this
court.
I.
The Olsens, who receive Social Security disability benefits, alleged in their
complaint that defendants provided them unsatisfactory assistance in their
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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attempts to participate in the Social Security Administration’s “Ticket-to-Work”
program. The “Ticket-to-Work” program is a voluntary program in which eligible
disability recipients can receive vouchers from the Social Security Administration
that they can use to obtain employment services, vocational services or other
services from a participating employment network that is willing to provide such
services to the disabled in order to help them work. See Ticket to Work and Self-
Sufficiency Program, 42 U.S.C. § 1320b-19; 20 C.F.R. § 411.100-411.730(“Ticket-to-Work program”). New Mexico’s DVR is a participating employment
network and provides assistance and benefit counseling to Ticket-to-Work
participants. See http://www.dvrgetsjobs.com/DVRTTW/TtoWDefault.htm.
Both Mr. and Mrs. Olsen sought to participate in the Ticket-to-Work
program. They alleged in their complaint, filed in February 2003, that defendants
did not schedule convenient meeting times or places with them and took other
actions that delayed or prevented them from participating in the program. The
Olsens repeatedly threatened to file legal actions against defendants when they
were unsatisfied with a proposed meeting time or place, and they claim that
defendants failed to provide them with an unbiased administrative hearing with
respect to their grievances. Their complaint listed over thirty causes of action
against defendants, including violations of the First, Fourth, Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution; Title VII; the
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Racketeering, Influencing and Corrupt Organizations Act (RICO); the
Rehabilitation Act of 1973; the Administrative Procedures Act; the Americans
with Disability Act (ADA); the Social Security Act; the New Mexico Constitution
and Bylaws; and the Equal Access to Justice Act. They also asserted claims for
breach of contract; breach of the duty of good faith and fair dealing; interference
with pending civil actions; abuse of process; interference with prospective
business advantage; loss of consortium; defamation; slander; violation of court
orders; malpractice; malfeasance; and unconscionability. Their complaint made
no attempt to link any of their factual allegations to any of their causes of action.
The defendants filed their first motion to dismiss in April 2003, seeking
dismissal of the constitutional claims and ADA claims against the state agency
and its employees, as these are barred by sovereign immunity under the Eleventh
Amendment, and dismissal of the state tort claims, as these are barred by the
Eleventh Amendment and the New Mexico Tort Claims Act. The Olsens failed to
respond. The district court, ruling on the merits rather than on the Olsens’ lack of
response, granted that motion to dismiss on June 10, 2003. On June 16, 2003, the
district court sua sponte dismissed the claims under 42 U.S.C. §§ 1981, 1985,
1986, 2000e-2, 2000e-5, RICO, and the First, Fourth, Fifth, Sixth and Eighth
Amendments for failure to state a claim upon which relief could be granted under
Fed. R. Civ. R. 12(b)(6). In July 2003, Tom Olsen filed a late opposition to the
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April 2003 motion to dismiss, stating he had moved from New Mexico to
California, where he had been hospitalized and had not received the motion or any
of the court’s orders. The district court treated this as a motion for
reconsideration, and denied it. The case was reassigned to a different district
court judge in September 2003.
In February 2004, the defendants filed their second motion to dismiss,
detailing why they were entitled to dismissal of all the remaining claims. Because
the Olsens had filed so many claims against so many parties, the motion was
forty-three pages long, and attached a five-page chart outlining the different
claims against the different defendants. Again, the Olsens did not file a response.
The district court scheduled a hearing on May 17, 2004, to consider the
motion to dismiss. Three days before the scheduled hearing, the Olsens filed a
untimely response, three months late, again claiming that Tom Olsen’s
hospitalization had prevented them from receiving notice of defendants’ motion
or the court’s order. The Olsens’ late response did not address any of the legal
issues raised in defendants’ motion to dismiss, and provided no factual or legal
argument as to why it should not be granted. Rather, the Olsens “elect[ed] to
stand on their complaint . . . without responding to the excess verbiage” of the
defendants’ motion to dismiss. R. Doc. 30, at 4. The district court reset the
hearing for July 13, 2004.
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The Olsens failed to appear at that hearing. The district court had
permitted them to appear telephonically, and repeatedly sought to contact them by
phone beginning one hour before the hearing, but never received any response.
The district court conducted a one-hour hearing, questioning counsel for
defendants as to each claim. The court then dismissed all of the remaining
claims, based on the reasoning given in the record at the hearing. This appeal
followed.
In a four-page opening brief, the Olsens claim error generally in the district
court’s ruling, arguing that it dismissed their claims without legal cause. They do
not, however, articulate any factual or legal argument in support of their general,
and in large part indecipherable, statements. They offer no authority or
cognizable legal argument for reversing the district court’s judgment. Rather than
pointing to any specific legal error or making any specific objection to any
particular ruling or issue, the Olsens simply ask this court whether the district
court had legal cause to dismiss the case and whether the defendants followed the
law. 1
1
The Olsens filed a five-page reply brief that raised two arguments for the
first time. “This court does not ordinarily review issues raised for the first time
in a reply brief.” Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000); see also
State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n. 7 (10th Cir. 1994)
(failing to raise issue in opening brief waives that issue). The Olsens first
contend that all of defendants’ arguments in support of the district court’s rulings
(continued...)
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This court has held that reasoned arguments must be presented addressing
grounds for appeal. See United States v. Kunzman , 54 F.3d 1522, 1534 (10th Cir.
1995). Moreover, the party challenging the district court’s judgment must
support his argument with legal argument or authority. See Fed. R. App. 28(a);
Phillips v. Calhoun , 956 F.2d 949, 953 (10th Cir. 1992). Although this court is
obligated to construe pro se pleadings liberally, see Haines v. Kerner , 404 U.S.
519, 520-21 (1972), we “will not construct arguments or theories for the plaintiff
in the absence of any discussion of those issues,” Drake v. City of Fort Collins ,
927 F.2d 1156, 1159 (10th Cir. 1991), and we need not address an issue that has
been inadequately developed or argued on appeal, see Murrell v. Shalala , 43 F.3d
1388, 1389 n.2 (10th Cir. 1994) (holding that perfunctory complaints of error that
fail to develop an issue are insufficient to invoke appellate review). Even a pro
se appellant must clearly apprise the court why he believes a reversible error has
been made and make an argument with authority supporting such a belief.
1
(...continued)
were presented to this court for the first time on appeal. That assertion is simply
inaccurate, as all of defendants’ arguments were presented in their motions to
dismiss. Second, the Olsens contend the district court failed to give any
reasoning for its rulings. To the contrary, the district court’s first two orders of
dismissals provided detailed reasons for those rulings, and its final order of
dismissal referred to the detailed reasons it gave for dismissing each claim at the
hearing, a transcript of which is included in the record on appeal.
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None of the Olsens’ statements in their opening brief constitute adequate
argument challenging the detailed findings and conclusions of the district court.
Therefore, in light of lack of anything even approaching reasoned argument or
legal authority, the judgment of the district court is AFFIRMED. See United
States v. Hardwell , 80 F.3d 1471, 1492 (10th Cir. 1996).
II.
This is not the first time the Olsens have filed an appeal in this court that
lacks merit. The Olsens have filed numerous jurisdictionally defective or
meritless appeals in this court against a variety of other parties. See Olsen v.
Quality Continuum Hospice, Inc ., No. 04-2073 (10th Cir. Oct. 14, 2004)
(dismissed for lack of jurisdiction for untimely notice of appeal); Olsen v. Mapes ,
No. 04-2082 (10th Cir. Jul. 8, 2004) (appeal dismissed for lack of prosecution
pursuant to 10th Cir. R. 42.1); Olsen v. Aebersold , Nos. 01-2366 and 02-2288, 71
Fed. Appx. 7, 9 (10th Cir. Jul. 11, 2003) (vacating district court’s merits-
dismissal because Olsens’ claim was so insubstantial, implausible and devoid of
merit that lower court lacked subject-matter jurisdiction for lack of a federal
controversy); Olsen v. United States Department of Labor , Nos. 01-9519, 01-
9540, 02-9529 (10th Cir. May 21, 2002) (three petitions for review transferred to
Ninth Circuit based on lack of jurisdiction in this court); Olsen v. Triple A
Machine Shop, Inc. , No. 01-2275 (10th Cir. Jan. 8, 2002) (affirming dismissal for
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lack of subject-matter jurisdiction, and noting Olsens’ argument on appeal was
without merit).
Further, the Ninth Circuit has imposed filing restrictions on the Olsens
because of their history of filing repetitious and frivolous appeals. R. Doc. 34,
Ex. A and B (attaching copies of two orders: In re Olsen , No. 04-8007 (9th Cir.
Mar. 22, 2004) (unpublished order imposing filing restriction) and (9th Cir.
Feb. 5, 2004) (unpublished order to show cause)). The Ninth Circuit prohibited
the Olsens from filing any pro se appeals in that court after finding that they had
filed nineteen meritless appeals in that court, nine of which had been dismissed
for lack of jurisdiction and three of which had been dismissed for failure to
prosecute. See id.The Olsens’ filings in this case have been frivolous, abusive, and vexatious.
They asserted over thirty claims against a dozen state defendants and a state
agency. To answer their complaint, the defendants were forced to prepare
detailed and time-consuming motions and pleadings and to attend a court hearing.
Yet throughout the legal proceedings that they instigated, the Olsens have never
made any attempt to justify or prosecute their lawsuit in either the district court or
this court. Indeed, they failed to file a timely response to every motion in the
district court and failed to appear telephonically at the court-ordered hearing.
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This court “has the inherent power to impose sanctions that are necessary to
regulate the docket, promote judicial efficiency, and deter . . . frivolous filings.”
Van Sickle v. Holloway , 791 F.2d 1431, 1437 (10th Cir. 1986); Braley v.
Campbell , 832 F.2d 1504, 1510 (10th Cir. 1987). If “a party ‘has engaged in a
pattern of litigation activity which is manifestly abusive,’ restrictions are
appropriate,” including an order enjoining a litigant from filing any pro se claims
without first seeking prior leave of the court. Winslow v. Homer (In re Winslow) ,
17 F.3d 314, 315 (10th Cir. 1994) ( quoting Johnson v. Cowley , 872 F.2d 342, 344
(10th Cir. 1989)); see also Werner v. State of Utah , 32 F.3d 1446, 1447-48 ( 10th
Cir. 1994); Ketchum v. Cruz , 961 F.2d 916, 921 (10th Cir. 1992). The “‘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.’” Winslow , 17 F.3d at 315 (quoting Tripati v. Beaman , 878 F.2d
351, 353 (10th Cir. 1989)).
The Court concludes that this appeal and others filed by the Olsens, as
detailed above, have been groundless, abusive, and vexatious. We therefore
inform the Olsens that we may impose restrictions on their filings in this court
using our inherent power to regulate federal dockets, promote judicial efficiency,
and deter frivolous filings. See Werner , 32 F.3d at 1448-49; 28 U.S.C. § 1651.
Accordingly, we order the Olsens to show cause, within twenty days of the date of
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this order and judgment, why they should not be barred from filing any future
civil appeals in this court unless they are represented by a licensed attorney or
first obtain permission from this court to proceed pro se .
The judgment of the district court is AFFIRMED. The Olsens’ request for
summary reversal is DENIED. The Olsens are ORDERED to SHOW CAUSE why
they should not be subject to prospective filing restrictions. The mandate shall
issue forthwith.
Entered for the Court
John C. Porfilio
Circuit Judge
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