Keyter v. 535 Members of the 110th Congr

FILED
United States Court of Appeals
Tenth Circuit
May 13, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ANTHONY P. KEYTER,
Plaintiff-Appellant, Nos. 08-1061, 08-1063, and 08-1064 *
v. (D. of Colo.)
535 MEMBERS OF THE 110TH (D.C. Nos. 1:08-CR-00085-ZLW,
CONGRESS; 443 SEDITIOUS 1:08-CR-00086-ZLW,
CONSPIRATORS; 443 KNOWN and 1:08-CR-00087-ZLW)
INSURGENTS; GEORGE W. BUSH,
United States President; JOHN G.
ROBERTS, Chief Justice; MICHAEL
MUKASEY, Attorney General, and
ROBERT MUELLER, Director of the
Federal Bureau of Investigations,
Defendants-Appellees.
ORDER AND JUDGMENT **
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. ***
*
We treat Keyter’s motions for joinder, each styled “Ex Parte Motion for
Joinder,” as motions for consolidation and combine the three cases for purposes
of this decision.
**
This order and judgment is not binding precedent except under the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.
***
After examining the briefs and the appellate records, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of these appeals. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The consolidated causes are therefore ordered submitted without
(continued...)
Anthony P. Keyter appeals the district court’s sua sponte dismissal of his
pro se complaints. 1 In the complaints, Keyter sought to initiate criminal
prosecutions against Defendants under various federal criminal statutes. See, e.g.,
18 U.S.C. § 2384 (seditious conspiracy). The district court dismissed for lack of
standing, reasoning a private citizen cannot initiate criminal prosecutions.
We agree and therefore AFFIRM the district court’s dismissal. We also
propose filing restrictions.
I. Background
For several years now, Keyter has been filing complaints in various federal
courts around the country, seeking to initiate criminal prosecutions. See Keyter v.
Bush, No. 08-97, 2008 WL 613129, at *2 (D. Del. Mar. 5, 2008) (noting Keyter’s
litigation activities in Arizona, Delaware, District of Columbia, Texas, and
Washington). As best we can tell, all of his lawsuits, including the complaints in
this case, stem from “the same basic transaction, which was a marital dissolution
action” in the State of Washington. Keyter v. 230 Gov’t Officers, 372 F. Supp. 2d
604, 605 (W.D. Wash. 2005). Dissatisfied with the result of his divorce
proceedings, and unable to subsequently obtain relief from various state and
***
(...continued)
oral argument.
1
Because Keyter is proceeding pro se, we review his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
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federal government officials around the country, Keyter seeks to prosecute these
officials criminally.
II. Discussion
A. Standing
The district court correctly dismissed Keyter’s complaints for lack of
standing. The law is crystal clear: “a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.” Diamond v. Charles,
476 U.S. 54, 64 (1986) (quoting Linda R. S. v. Richard D., 410 U.S. 614, 619
(1973)); accord Doyle v. Okla. Bar. Ass’n, 998 F.2d 1559, 1567 (10th Cir. 1993).
Keyter, a private citizen, has no standing to initiate federal criminal prosecutions.
Keyter is well aware of this since several of his federal complaints have
been dismissed on this ground. Bush, 2008 WL 613129, at *2 (dismissing
Keyter’s complaint for lack of standing and noting his other federal cases
similarly dismissed). In light of his numerous prior filings, each resulting in the
court telling him why he cannot initiate criminal prosecutions, we are forced to
conclude Keyter is using federal courts to pursue abusive litigation.
This brings us to filings restrictions.
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B. Filing Restrictions
Federal courts have the inherent power under 28 U.S.C. § 1654(a) to
regulate activities of abusive litigants by imposing carefully tailored restrictions
if circumstances warrant. See Winslow v. Hunter, 17 F.3d 314, 315 (10th Cir.
1994). Injunctions restricting further filings are appropriate where (1) the
litigant’s lengthy and abusive history is set forth; (2) the court provides
guidelines as to what the litigant may do to obtain its permission to file an action;
and (3) the litigant receives notice and an opportunity to oppose the court’s order
before it is implemented. See Tripati v. Beaman, 878 F.2d 351, 353–54 (10th Cir.
1989).
In view of Keyter’s abusive pattern of filing frivolous complaints, seeking
to initiate criminal prosecutions after being told repeatedly he cannot do so, we
must restrict his access to this court. “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 (quotation and alteration omitted). Therefore, subject to Keyter’s opportunity
to object, as described below, we propose the following reasonable filing
restrictions on future filings by Keyter dealing with requests to initiate criminal
prosecutions.
Keyter is ENJOINED from proceeding in this court as a petitioner in an
original proceeding or as an appellant in a civil matter (except in these combined
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appeals) unless he is represented by a licensed attorney admitted to practice in
this court or unless he first obtains permission to proceed pro se. To obtain
permission to proceed pro se, Keyter must take the following steps:
1. File a petition with the clerk of this court requesting leave to file an
original proceeding or to proceed pro se on appeal. If Keyter seeks to proceed
pro se on appeal, he must file the petition with the clerk of this court not more
than ten days after filing his notice of appeal in the district court;
2. Include in the petition the following information:
A. A list of all lawsuits currently pending or filed previously with
this court, including the name, number, and citation, if applicable, of each case,
and the current status or disposition of the appeal or original proceeding; and
B. A list apprising this court of all outstanding injunctions or orders
limiting Keyter’s access to federal court, including orders and injunctions
requiring him to seek leave to file matters pro se or requiring him to be
represented by an attorney, including the name, number, and citation, if
applicable, of all such orders or injunctions; and
3. File with the clerk of this court a notarized affidavit, in proper legal
form, which recites the issues Keyter seeks to present, including a short
discussion of the legal basis asserted therefor, and describing with particularity
the order being challenged. The affidavit also must certify, to the best of
Keyter’s knowledge, that the legal arguments being raised are not frivolous or
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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 other matter 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. The affidavit must be filed with the
petition and is therefore subject to the same ten-day filing deadline as the petition
in the case of a pro se appeal.
These documents shall be submitted to the clerk of this court. The matter
will be dismissed for failure to prosecute if the required documents are not
submitted, are submitted in an improper form, or are untimely submitted. If the
matter is not dismissed for failure to prosecute, the clerk shall forward the
documents to the Chief Judge or the Chief Judge’s designee for review to
determine whether to permit Keyter to file an original proceeding or to pursue an
appeal. Without the approval of the Chief Judge or the Chief Judge’s designee,
the matter will be dismissed. If the Chief Judge or the Chief Judge’s designee
approves the petition, 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.
Keyter shall have ten days from the date of this order and judgment to file
written objections to these proposed filing restrictions. See Winslow, 17 F.3d at
316. The response shall be limited to 15 pages. See id. If Keyter does not timely
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file objections, the filing restrictions shall take effect 20 days from the date of
this order and judgment, and the filing restrictions shall apply to any matter filed
after that time, except for further filings in these combined appeals. Id. at
316–17. If Keyter does file timely objections, the filing restrictions shall not take
effect until after this court has ruled on those objections.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s dismissal of
Keyter’s complaints. We DENY AS MOOT Keyter’s motion styled “Urgent Ex
Parte Motion to Appoint a Prosecutor.”
Entered for the Court
Per Curiam
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