Schlicher v. Thomas, s. 95-3402
| Citation | 111 F.3d 777 |
| Decision Date | 16 April 1997 |
| Docket Number | 96-3399,96-3003,Nos. 95-3402,s. 95-3402 |
| Parties | 97 CJ C.A.R. 559 William F. SCHLICHER, Plaintiff-Appellant, v. Don THOMAS, Jerry Green, Robert Hendricks and R.L. Smith, Defendants-Appellees. William F. SCHLICHER, Plaintiff-Appellant, v. Julie L. RIDDLE and Don Thomas, and any others whom become exposed or revealed as support/aiders/abettors, in their individual selves, combined and conspired, Defendants-Appellees. William F. SCHLICHER, Plaintiff-Appellant, v. Lori E. REEVES, Julie L. Riddle, John J. Knoll, Lonnie Koch, Officer; Gary Comstock, Officer; Jack Hires, Roger Parker, Officer Major; L.M. Leising, R. Vogsburg, Mike Nelson and William L. Cummings, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
William F. Schlicher, pro se.
Lawrence J. Logback and James W.Coder, Office of the Kansas Attorney General, Topeka, KS, for Defendants-Appellees. *
Before BALDOCK, EBEL, and LUCERO, Circuit Judges.
Plaintiff-Appellant William F. Schlicher, a Kansas state prisoner proceeding pro se and in forma pauperis, 1 appeals from the district court's entry of dispositive orders in these 42 U.S.C. § 1983 actions filed against employees and officials of the Kansas Department of Corrections (DOC) and the Office of the Attorney General. We exercise jurisdiction under 28 U.S.C. § 1291, consolidate the appeals under Fed. R.App. P. 3(b), and affirm. 2 Additionally, we announce restrictions on Mr. Schlicher's future filings based on his history of repetitive, frivolous, and malicious filings.
Mr. Schlicher brought this action alleging that defendants-appellees (officials and employees of the Kansas Department of Corrections), violated his due process and equal protection rights by denying him permission to purchase a typewriter with memory features. To ascertain the adequacy of the factual and legal basis for Mr. Schlicher's claims, the district court ordered a report and a supplemental report pursuant to Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir.1978). 3 After considering the report, the court determined that Mr. Schlicher's claims were clearly baseless and dismissed the case under the former 28 U.S.C. § 1915(d) (now codified at 28 U.S.C. § 1915(e)(2)(B)(i)).
Under § 1915(d), a district court may dismiss an in forma pauperis action as frivolous if the "claim [is] based on an indisputably meritless legal theory" or if it is founded on "clearly baseless" factual contentions. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989). Consideration of a Martinez report may enter into the determination. See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991).
We review the § 1915(d) dismissal of this action for abuse of discretion, Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733-34, 118 L.Ed.2d 340 (1992), and affirm substantially for the reasons set forth in the district court's memorandum and order of May 2, 1995.
In this case, Mr. Schlicher alleged that defendants-appellees, who were attorneys in the office of the attorney general, were liable to him for participating in a conspiracy involving the submission of a fraudulent Martinez report in case No. 95-3402. The district court characterized Mr. Schlicher's unsupported allegations as abusive and malicious, then dismissed the complaint under § 1915(d). See Hall, 935 F.2d at 1108. We agree with the ruling of the district court. On its face, the claim was frivolous and malicious. Summary dismissal was the proper disposition of the matter.
Mr. Schlicher filed this action alleging violations of his constitutional and statutory rights in connection with the results of DOC disciplinary proceedings. Defendants-appellees, DOC employees and attorneys in the Office of the Attorney General, filed an answer which incorporated a motion to dismiss and a Martinez report. The district court gave notice to the parties that it would treat defendants' motion to dismiss as a motion for summary judgment. See Fed.R.Civ.P. 12(b). The court specifically advised Mr. Schlicher that a response under oath was necessary, see Fed.R.Civ.P. 56(e), and alerted him to the fact that he could not rest upon mere allegations without risking entry of summary judgment, see id. Mr. Schlicher's responsive filing failed to meet the standards of Fed.R.Civ.P. 56(e) and the district court entered an order striking the response. Later, the court granted appellees' motion for summary judgment.
We review de novo the district court's grant of summary judgment. Kaul v. Stephan 83 F.3d 1208, 1212 (10th Cir.1996). The district court gave the requisite notice to Mr. Schlicher that it was going to treat the motion to dismiss, along with the Martinez report, as a motion for summary judgment. See David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996). Moreover, the court advised Mr. Schlicher of his right to file material responsive to the Martinez report, explained the affidavit requirements of Fed.R.Civ.P. 56(e), and warned that failure to make a satisfactory response could result in entry of summary judgment. See Hall, 935 F.2d at 1111.
Mr. Schlicher chose to ignore the district court's directives. 4 As a consequence, the record contained no evidence of a genuine issue of material fact. We affirm the district court's entry of summary judgment.
In the past, we have permitted Mr. Schlicher to proceed in forma pauperis and have construed his filings liberally, in deference to his status as a pro se litigant. See Hall, 935 F.2d at 1110. A review of his filing history reveals the extent to which he abused these privileges. Since 1989, Mr. Schlicher has filed thirty-three appeals and original proceedings in this court. 5 Most were summarily terminated or dismissed. 6 Five of these matters were dismissed as frivolous; one with a warning that filing "any additional frivolous petitions or appeals will result in the imposition of sanctions," Schlicher v. Saffels, No. 94-604 (10th Cir. Aug. 25, 1994).
Accordingly, we have determined to call a halt to Mr. Schlicher's wasteful abuse of judicial resources. Mr. Schlicher's future filings are restricted in two ways: (A) by operation of 28 U.S.C. § 1915(g), a provision of the PLRA; and (B) by an exercise of our "inherent power to enter orders 'necessary or appropriate' in aid of our jurisdiction," see Winslow v. Hunter (In re Winslow), 17 F.3d 314 315 (10th Cir.1994) (quoting 28 U.S.C. § 1651).
Section 1915(g) provides that a prisoner may not
bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim on which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
The provision applies to mandamus proceedings, Green v. Nottingham, 90 F.3d 415, 418 (10th Cir.1996), and to appeals that were dismissed prior to enactment of the PLRA, id. at 420.
Under § 1915(g), Mr. Schlicher is barred from proceeding in forma pauperis in the future. We therefore direct the clerk of this court not to accept from Mr. Schlicher any further appeals of judgments in civil actions or proceedings or any extraordinary writs in noncriminal matters, unless he pays the filing fees established by our rules. This directive does not apply to appeals or petitions claiming that Mr. Schlicher is under imminent danger of serious physical injury.
In cases other than those in which imminent danger of serious physical injury is alleged, we further restrict Mr. Schlicher's filing privileges through an exercise of "our inherent power to enter orders 'necessary or appropriate' in aid of our jurisdiction." Winslow, 17 F.3d at 315 (citing 28 U.S.C. § 1651); see also Werner v. State of Utah, 32 F.3d 1446, 1448 (10th Cir.1994). 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 (). If a party " 'has engaged in a pattern of litigation activity which is manifestly abusive,' restrictions are appropriate." Winslow, 17 F.3d at 315 (quoting Johnson v. Cowley, 872 F.2d 342, 344 (10th Cir.1989)).
Mr. Schlicher's filings have been repetitive, frivolous, and malicious. We therefore impose additional restrictions on his filings in this court, whether or not he pays a full filing fee. Mr. Schlicher is enjoined from proceeding as an appellant or a petitioner without the representation of a licensed attorney admitted to practice in this court, unless he first obtains permission to proceed pro se. To do so, he must take the following steps:
1. File a petition with the clerk of this court requesting leave to file a pro se action;
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;
b. A list apprising this court of all outstanding injunctions or orders limiting his access to federal court, including orders and injunctions requiring him to be represented by an attorney, including the name, number, and citation, if applicable, of all such orders and injunctions;
3. File with the clerk a notarized affidavit, in proper legal form, which recites the issues which he seeks to present, including a short description of the legal basis...
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