In re Charles Pointer v.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 09-1564/1620
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In re: Charles Pointer, * Appeals from the United States
* District Court for the
Appellant. * Eastern District of Missouri.
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* [UNPUBLISHED]
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Submitted: August 7, 2009
Filed: August 19, 2009
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
In these consolidated appeals, Charles Pointer challenges an en banc order
issued by the United States District Court for the Eastern District of Missouri
requiring him to obtain leave of court to file complaints (No. 09-1564) and a separate
order, issued by the District Court pursuant to the en banc order, denying Pointer leave
to file a new complaint (No. 09-1620). Pointer also moves to add parties to his
appeals. We deny Pointer’s motion, but we vacate and remand in both appeals.
After reviewing twenty-three in forma pauperis cases that Pointer filed pro se
in the Eastern District of Missouri over approximately four and one-half years, the
District Court en banc determined that Pointer had abused the judicial process and his
right to file actions and proceedings, and it concluded that preventive measures were
required to abate the abuse. The court then issued an order prohibiting Pointer,
without first obtaining leave of court, from filing new complaints in the Eastern
District, reopening prior complaints, and transferring or removing suits to the Eastern
District from other federal district courts or state courts. Further, the order bars
Pointer from filing pleadings or other materials without leave of court, even if he is
granted leave to file a complaint or to proceed pro se. The order prohibits the District
Court clerk from accepting filings from Pointer, whether he has paid the filing fee or
is proceeding in forma pauperis, unless Pointer has included a court order granting
him leave to file. The court's order instructs Pointer in detail how to go about
obtaining leave of court. In appeal No. 09-1564, Pointer argues, among other things,
that the en banc order was issued in violation of his right to due process because he
was not given prior notice and an opportunity to respond.
We construe the en banc order to be an injunction issued pursuant to 28 U.S.C.
§ 1651(a), which empowers federal courts to "issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the usages and principles of
law." We are concerned that the injunction may be overly broad, however, because
it restricts not only Pointer’s ability to institute suits raising the issues or naming the
defendants in his prior cases, but also his ability to file any civil suit in the Eastern
District of Missouri. See, e.g., Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818
(4th Cir. 2004) ("[I]f a judge, after weighing the relevant factors, properly determines
that a litigant’s abusive conduct merits a prefiling injunction, the judge must ensure
that the injunction is narrowly tailored to fit the specific circumstances at issue.");
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir. 2004) (explaining
that § 1651(a) codifies "the federal courts’ traditional, inherent power to protect the
jurisdiction they already have, derived from some other source," and allows those
courts to safeguard ongoing proceedings, potential future proceedings, and previously
issued orders and judgments); Wood v. Santa Barbara Chamber of Commerce, Inc.,
705 F.2d 1515, 1524 (9th Cir. 1983) (noting that under § 1651(a), district courts have
power to reinforce the effects of the doctrines of collateral estoppel and res judicata
by "issuing an injunction against repetitive litigation"), cert. denied, 465 U.S. 1081
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(1984). In any event, the court apparently issued the en banc order without giving
Pointer notice and any opportunity to be heard. See Cromer, 390 F.3d at 819
("[B]efore a judge issues a prefiling injunction under 28 U.S.C. § 1651(a), even a
narrowly tailored one, he must afford a litigant notice and an opportunity to be
heard."); Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989) (per curiam) (vacating
§ 1651(a) restrictions on future filings and remanding because the litigant was not
provided prior notice and opportunity to respond, but noting that such opportunity
"does not . . . require an in-person hearing in the district court"). Accordingly, we
vacate the order and remand for the District Court en banc to provide Pointer with
notice and an opportunity to respond before entering a pre-filing injunction against
him. At the same time, the court should consider whether any order it issues is
narrowly tailored to address Pointer's particular abuses of the judicial process.
In appeal No. 09-1620, Pointer moved for leave to proceed in forma pauperis
in the Eastern District of Missouri and to file a complaint naming Ida Early,
Washington University, and the University’s registered agent as defendants. The
District Court denied leave to file the complaint after determining that it was frivolous
and similar to previously dismissed complaints. On appeal, Pointer argues that the
complaint should have been filed and considered on the merits. Because we are
vacating the en banc order under which the District Court denied leave to file this
complaint, we also vacate the order denying leave to file the complaint.
In sum, we vacate the en banc order in appeal No. 09-1564 and the order
denying leave to file in appeal No. 09-1620, and we remand both matters to the
District Court for further proceedings consistent with this opinion. Pointer’s motion
to add parties to the appeals is denied.
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