Harris v. Kammerzell , 440 F. App'x 627 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
September 27, 2011
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
CHRISTOPHER L. HARRIS,
Plaintiff-Appellant,
v.
No. 11-1206
JOHN L. KAMMERZELL, U.S. (D.C. No. 1:11-cv-00435-LTB)
Marshal, Against his Individual and (D. Colo.)
Official Capacity,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Plaintiff-Appellant Christopher L. Harris, proceeding pro se, 1 appeals the
district court’s order dismissing his complaint as frivolous and imposing filing
*
This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
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.
1
Because Mr. Harris is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
restrictions. In filings that are difficult to understand, Mr. Harris appears to
challenge his drug conviction and sentence based upon principles of contract
and/or civil commercial law. In Harris v. Wands, 410 F. App’x 145, 148 (10th
Cir. 2011), a panel of this court affirmed the dismissal of Mr. Harris’s 28 U.S.C.
§ 2241 petition, and cautioned Mr. Harris that “further frivolous filings may result
in the imposition of filing restrictions.” We conclude that Mr. Harris’s latest case
again presents only frivolous assertions. Accordingly, exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
BACKGROUND
After pleading guilty in the United States District Court for the Southern
District of Indiana to conspiracy to possess with intent to distribute cocaine and
cocaine base, Mr. Harris was sentenced to 300 months’ incarceration to be
followed by five years’ supervised release. Mr. Harris has used commercial-law
theories in an effort to gain his release from prison in at least six previous
actions. See Harris v. Wands, No. 10-cv-02735-LTB, 2010 WL 5339604 (D.
Colo. Dec. 10, 2010) (unpublished), aff’d, 410 F. App’x 145, 148 (10th Cir.
2011); Harris v. Anderson, No. 10-03227-CV-S-RED (W.D. Mo. Nov. 2, 2010)
(unpublished); Harris v. Anderson, No. 10-cv-03225-DW (W.D. Mo. Oct. 29,
2010) (unpublished), aff’d, No. 10-3593 (8th Cir. Dec. 30, 2010) (summarily
affirmed) (unpublished); Harris v. United States, No. 1:10-cv-00335-LJM-JMS
(S.D. Ind. May 5, 2010) (unpublished), appeal dismissed, No. 10-2205 (7th Cir.
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Aug. 9, 2010) (unpublished); Harris v. United States, No. 09-154C, 2009 WL
2700207 (Fed. Cl. Aug. 26, 2009) (unpublished); Harris v. United States, No.
1:08-cv-1315-DFH-TAB (S.D. Ind. Oct. 17, 2008), certificate of appealability
denied, No. 08-3934 (7th Cir. Feb. 18, 2009) (unpublished).
In this action, Mr. Harris’s complaint averments are similar to allegations
that he has made in the cases listed above. In part, Mr. Harris asserts in Claim
One:
Upon being duly convicted for violation of Title 21 §§ 841, 846,
which made Christopher L. Harris a slave and personal property
of the United States under the U.S. Constitution, Mr. Harris was
fined according to Title 21 § 841 the sum certain of $4,000,000,
which was treated as a tax lien pursuant to 18 U.S.C. § 3613(c).
. . . On February 7, 2011, Mr. Harris delivered payment, in good
faith, and in accordance with law for satisfying payee’s claim and
discharging Mr. Harris pursuant to 28 U.S.C. § 3206, from
liability on Judgment No. 1:98Cr00121-00, and suspend the
obligation in accordance with law pursuant to 28 U.S.C. §
3201(d).
R. at 24 (Am. Compl., filed Mar. 17, 2011) (emphasis omitted).
And in Claim Two Mr. Harris asserts in part that:
On or about February 15, 2011, plaintiff and defendant entered
into a contract for full satisfaction of the claim referenced above
in claim one of this complaint with the intent of extinguishing
any alleged debt, duty, obligation, liability, and the like intended
as obligating Christopher L. Harris for a valuable consideration.
. . . Christopher L. Harris has duly performed all the terms and
conditions of the contract on his part. . . . John L. Kammerzell
breached the contract in that . . . he has failed or refused to: (1)
prevent this account from damaging Mr. Harris in any way. (2)
Confess judgment. (3) Discharge all debt(s) and judgments
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‘dollar for dollar’ with delivered Promissory Note No. CLH-
02052011-CH.
Id. at 25 (emphasis omitted).
DISCUSSION
This Court reviews frivolousness dismissals for an abuse of discretion,
unless the district court’s decision turns on an issue of law, in which case our
review is de novo. Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). It
is patent that Mr. Harris’s complaint averments—through which he attempts to
effect his release from prison under principles of contract and/or civil commercial
law—are legally frivolous. Accordingly, the district court was correct to dismiss
his complaint.
As for the filing restrictions, we review the imposition of filing restrictions
for an abuse of discretion. Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir.
1989).
Injunctions restricting further filing are appropriate where (1)
“the litigant’s lengthy and abusive history” is set forth; (2) the
court provides guidelines as to what the litigant “must do to
obtain permission to file an action”; and (3) the litigant received
“notice and an opportunity to oppose the court’s order before it
is instituted.”
Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010) (quoting Tripati, 878
F.2d at 353–54).
Here, the district court first issued an order to show cause why Mr. Harris
should not be subject to filing restrictions in the district court, in which it detailed
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Mr. Harris’s lengthy and abusive filing history. 2 After considering Mr. Harris’s
response to the order to show cause, the district court imposed filing restrictions
that (1) enjoined Mr. Harris from filing pro se any civil action in the District of
Colorado in which he seeks release from prison based on contract law, the law of
commercial transactions, or any other theory of law that is legally frivolous, and
(2) set forth a procedure under which any future pro se pleadings submitted by
Mr. Harris will be reviewed by a magistrate judge and then by a district court
judge before any determination is made that a particular pleading should not be
filed because it is the type of pleading that Mr. Harris is enjoined from filing.
Based upon Mr. Harris’s filing history, we conclude that these restrictions are
narrowly tailored and appropriate under Ysais.
CONCLUSION
Because Mr. Harris’s complaint presents only averments that are legally
frivolous, and because, based on Mr. Harris’s filing history, the filing restrictions
2
In particular, in addition to reviewing the averments set forth in Mr.
Harris’s complaint, the district court referenced three of Mr. Harris’s previously
filed cases in which he advanced the same or similar averments.
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imposed by the district court are legally appropriate, we AFFIRM. 3
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
3
Mr. Harris’s motion to proceed in forma pauperis is DENIED and
we instruct him to make full and immediate payment of the unpaid balance of his
appellate filing fees. All other pending motions are DENIED as moot.
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