Khan v. Mecham ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 14, 2005
TENTH CIRCUIT
Clerk of Court
NASRULLA KHAN,
Plaintiff-Appellant, No. 05-4082
v. (D. of Utah)
GLENN J. MECHAM, ROCKY J. (D.C. No. 00-CV-114-DB)
FLUHART, JON GREINER, A. K.
GREENWOOD, OGDEN CITY
COUNCIL, OGDEN CITY
CORPORATION, RALPH W.
MITCHELL, GLEN V. HOLLEY,
KENNETH J. ALFORD, GARTH B.
DAY, RICK J. MAYER, JESSE M.
GARCIA, and ADELE SMITH,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Plaintiff-Appellant Nasrulla Khan appeals the denial of a motion for
contempt against defendants, who are various officials for the City of Ogden,
Utah. Khan argues the defendants failed to reimburse him for $98 in service of
process fees that arose from the dismissal of his civil rights case in 2001.
I. Background and Legal Issues
Mr. Khan is a frequent filer in this court. This case represents his sixth
appeal regarding allegations that Ogden city officials failed to investigate his
claims that he was the victim of harassing telephone calls and stalking. In Khan’s
most recent appeal, a panel of this Court sua sponte issued an order barring him
from filing another appeal on the same subject matter. Khan v. Mecham, 80 Fed.
Appx. 50, 52 (10th Cir. 2003) (“Khan III”). In that order, we warned Khan that
he would be subject to sanctions in the future should he file yet another appeal to
the Tenth Circuit regarding this same subject matter. Id; see also Christensen v.
Ward, 916 F.2d 1462, 1469 (10th Cir. 1990) (noting this court has the power “to
impose sanctions such as costs, attorneys fees and double costs for the filing of
frivolous appeals, Fed. R. App. P. 38, and the inherent power to impose sanctions
that are necessary to regulate the docket, promote judicial efficiency, and . . . to
deter frivolous filings.”)
The original complaint Khan filed with respect to the current subject matter
was dismissed on September 12, 2001. Prior to dismissal, the district court
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awarded Khan $98.00 in service costs. Khan never sought payment of the $98.00
nor did he reduce the court’s order to judgment. Following an unsuccessful
appeal to this court and a denial of his petition for writ of certiorari to the
Supreme Court, Khan filed a motion seeking payment of the $98.00 service costs
along with $5,000 in punitive damages. City officials paid the $98.00, which they
state was “apparently forgotten during the appeals,” but Khan pressed onward
with his motion for sanctions. In an order adopting the reasoning articulated in
the defendants’ brief, the district court denied Khan’s motion for contempt.
We affirm the district court’s decision for two reasons. First, district courts
have broad discretion to decide whether to impose sanctions. See United States v.
Gonzales, 164 F.3d 1285, 1291 (10th Cir. 1999). Khan apparently did nothing to
pursue collection of his $98.00 for a number of years, and once asked, the City of
Ogden paid him immediately. Accordingly, we believe the district court was well
within its discretion to deny sanctions.
Second, and more importantly, in Khan III, we barred Khan from filing an
appeal in this court regarding the “same subject matter as Khan I and Khan II.”
He is in direct violation of that order, and this alone would be reason to dismiss
his appeal.
II. Conclusion and Sanction
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We affirm the district court’s order, and deny Khan’s motion to proceed in
forma pauperis. In addition, we conclude that Khan’s appeal in this matter is in
direct violation of the court’s 2003 order in Khan III regarding additional appeals
arising from the 2001 complaint. Accordingly, we order a sanction in the amount
of $98, to be paid to defendants within thirty days of the filing of this order and
judgment.
Entered for the Court
Per Curiam
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