In re: Raiser v.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 5, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
In re:
No. 06-4116
AARON RAISER, (D.C. No. 2:06-mc-382-DB)
(D. Utah)
Appellant.
OR D ER AND JUDGM ENT *
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.
The Chief Judge of the United States District Court for the District of Utah
placed appellant Aaron Raiser on that court’s restricted filer list. W e reverse and
remand.
I. Factual and procedural background
M r. Raiser, a self-described homeless person and law student in California,
has been a frequent pro se litigant in the United States District Court, District of
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Utah. 1 In Raiser v. Church of Jesus Christ of Latter-Day Saints, No. 2:04cv00896
(D. Utah N ov. 3, 2005), aff’d 211 F. App’x 804, 811 (10th Cir. 2007), defendants
Church of Jesus Christ of Latter-day Saints and Brigham Y oung University filed
motions for summary judgment and for imposition of filing restrictions. The
district court entered the summary judgment motion, but determined that the
filing-restriction request was outside the scope of its authority. It therefore
referred the matter to the Chief Judge with a recommendation that M r. Raiser be
1
See, e.g., Raiser v. Church of Jesus Christ of Latter-Day Saints,
211 F. App’x 804, 811 (10th Cir. 2007) (affirming district court’s entry of
summary judgment to Brigham Young University and the Church of Jesus Christ
of Latter-Day Saints on civil-rights and breach-of-privacy claims); Raiser v.
Church of Jesus Christ of Latter-Day Saints, 182 F. App’x 810, 812 (10th Cir.
2006) cert. denied, 127 S. Ct. 1381 (2007) (affirming district court’s denial of
M r. Raiser’s motion to proceed under a pseudonym and dismissing appeal of
pre trial discovery order); Raiser v. Utah County, 409 F.3d 1243, 1245 (10th Cir.
2005) (reversing district court’s grant of summary judgment to Utah County on
ground that M r. Raiser should be permitted to amend his response to request for
admissions); Raiser v. Brigham Young Univ., 127 F. App’x 409, 410 (10th Cir.
2005) (affirming district court’s denial of motion to proceed under a pseudonym);
Raiser v. Daschle, 54 F. App’x 305, 307 (10th Cir. 2002), cert. denied, 539 U.S.
903 (2003) (affirming district court’s dismissal of M r. Raiser’s action seeking
order requiring U.S. Senate to change its rules relating to judicial nominations);
Raiser v. United States, 325 F.3d 1182, 1184 (10th Cir. 2002) (affirming district
court’s dismissal of M r. Raiser’s action seeking retroactive requirement that state
and federal governments administer death penalty only in manner consistent with
his proposed standards). Today, we also issue an order and judgment affirming
the district court’s dismissal of M r. Raiser’s case against Brigham Y oung
University, lawyers representing the university in federal and state court
proceedings filed by M r. Raiser, a state district court judge, and the Governor of
Utah. See Raiser v. Kono, No. 06-4243 (10th Cir. July 5, 2007).
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placed on the court’s restricted filer list. Previously, a magistrate judge had also
recommended the imposition of filing restrictions.
To deal with the filing-restriction issue, the Chief Judge opened the
separate case of In re Raiser and entered an order to show cause on M arch 2,
2006, requiring M r. Raiser to demonstrate why he should not be placed on
restricted filing status. 2 M r. Raiser timely submitted a voluminous response to
the show-cause order and also filed a motion asking the Chief Judge to recuse
himself from consideration of the matter.
The response to the show-cause order, however, was misplaced in the filing
process. The Chief Judge issued an order on April 14, 2006, reflecting the belief
that M r. Raiser had not filed a response and placing M r. Raiser on the restricted
filers’ list. In substance, the order stated that M r. Raiser’s future complaints are
to be reviewed by a magistrate judge and, if the magistrate judge determines that
a complaint is nonmeritorious, duplicative, or frivolous, it is to be forwarded to
the Chief Judge for further review and a decision on whether the complaint may
be filed. M r. Raiser filed a notice of appeal of the restriction order.
2
The show-cause order states that M r. Raiser had filed ten actions in district
court from M ay 2000 through February 2006. M r. Raiser asserts that defendants
had removed three of these cases from state court and that ultimately two cases
were remanded back to state court. If necessary, the district court may resolve
this factual discrepancy on remand.
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M r. Raiser, however, continued to telephone the district court and submit
additional motions. The Chief Judge denied the motion to recuse on M ay 24,
2006. Two months later, on July 31, the district court entered an amended
restriction order. This order conceded that “M r. Raiser had, in fact, filed a
response, which was initially misplaced,” but stated that “[h]aving since located
and perused M r. Raiser’s response, the Court finds no cause to revise its earlier
conclusions.” R., Doc. 13. M r. Raiser then filed an amended notice of appeal,
seeking review of the denial of his motion to recuse and the amended restriction
order. Defendants in Raiser v. Church of Jesus Christ of Latter-Day Saints,
No. 2:04cv00896, have filed a motion to intervene as interested parties in this
appeal.
II. Discussion
“[I]njunctions restricting further filings are appropriate w here the litigant’s
lengthy and abusive history is set forth; the court provides guidelines as to what
the litigant may do 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.” Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007) Id.At the time of the initial order, by the Chief Judge’s admission, M r. Raiser’s reply
had been misplaced and thus was not considered. This lack of notice and
opportunity to respond was not cured by the subsequent order, which was entered
after M r. Raiser filed his notice of appeal and after the district court was divested
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of jurisdiction. See Griggs v. Provident Consumer Discount Co, 459 U.S. 56, 58
(1982). W e reverse the district court’s restriction order and remand for further
proceedings. As for M r. Raiser’s attempted appeal of the district court’s denial of
the motion to recuse, we dismiss for lack of jurisdiction.
M r. Raiser’s motion for oral argument is denied and his other motions are
denied as moot. The request of BYU and the Church to intervene in this matter is
denied; however, their motion is construed as requesting leave to appear as amici
curiae and granted.
Entered for the Court
John C. Porfilio
Circuit Judge
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