United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on pro se Plaintiff
Anthony Brian Mallgren's: (i) Induction Complaint, Doc.
1, filed November 23, 2016 (“Complaint”); (ii)
Fee Waiver Request, Doc. 3, filed November 23, 2016; and
(iii) Electronic Filing Request, Doc. 4, filed November 23,
2016. For the reasons stated below, the Court will: (i)
DISMISS Plaintiff's Complaint as frivolous; (ii) DISMISS
this case without prejudice; (iii) DENY Plaintiff's Fee
Waiver Request as moot; and (iv) DENY Plaintiff's
Electronic Filing Request as moot.
the second of three cases that Plaintiff has filed in this
Court in November, 2016. See Mallgren v. Thomas, No.
16cv1256 JCH/KBM; Mallgren v. United States, No.
16cv1295 MV/WPL. In the first case, United States District
Judge Judith C. Herrera noted that Plaintiff had previously
filed 98 cases in federal courts since September 2012, many
of which were frivolous or meritless, described how Plaintiff
has failed to comply with Court rules in her case, and
informed Plaintiff that the District of New Mexico has the
third highest number of total filings per judgeship in the
federal district court system and, consequently, has a strong
interest in managing its docket and minimizing the impact of
frivolous or meritless actions on its resources. See
Doc. 14 at 2-3, Mallgren v. Thomas, No. 16cv1256
JCH/KBM (December 7, 2016). Judge Herrera then notified
Plaintiff that failure to comply with the Federal Rules of
Civil Procedure, the District of New Mexico's Local Rules
of Civil Procedure, and orders and other rules of the Court,
may result in the imposition of filing restrictions on
Complaint in this case, which was filed before Judge Herrera
entered her Order, is frivolous. Plaintiff's Complaint
states in its entirety:
Incorporation: 16-cv-WAED-392 16-cv-WAED-39116-cv-WAED-387
16-cv-NYSD-5805 16-2-2917 16-cv-WAED-385
1. Litigant, Anthony Brian Mallgren (7297}, relocated in
Litigant 5, “City of Albuquerque” (New Mexico},
after initial 16-cv-WAED-392 complaint.
2. Situation following Relocation similar 16-cv-WAED-392.
3. Inducting 16-cv-WAED-392.
Complaint at 2-3. The Complaint does not refer to the
exhibits attached to the Complaint.
Court will dismiss the Complaint as frivolous because it does
not contain a short and plain statement of a claim showing
that Plaintiff is entitled to relief or a demand for the
relief sought, as required by Fed.R.Civ.P. 8(a)(2) and (3).
See Triplett v. Triplett, 166 Fed.Appx. 338, 339-340
(10th Cir. 2006) (Dismissal of an in forma pauperis
complaint as frivolous is not an abuse of discretion based on
a determination that the pro se litigant did not
state a viable legal claim and that the complaint consisted
of little more than unintelligible ramblings); 28 U.S.C.
§ 1915(e)(2) (“the court shall dismiss the case at
any time if the court determines that . . . the action . . .
is frivolous . . . [or] fails to state a claim”).
Complaint also does not contain “a short and plain
statement of the grounds for the court's
jurisdiction” as required by Fed.R.Civ.P. 8(a)(1). As
the party seeking to invoke the jurisdiction of this Court,
Plaintiff bears the burden of alleging facts that support
jurisdiction. See Dutcher v. Matheson, 733 F.3d 980,
985 (10th Cir. 2013) (“Since federal courts are courts
of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal
jurisdiction”). The Court will dismiss this case
without prejudice because it lacks jurisdiction to consider
Plaintiff's claims. See Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action”); Brereton v. Bountiful City Corp., 434
F.3d 1213, 1218 (10th Cir.2006) (“[D]ismissals for
lack of jurisdiction should be without prejudice because the
court, having determined that it lacks jurisdiction over the
action, is incapable of reaching a disposition on
the merits of the underlying claims.”).
it is dismissing this case, the Court will deny
Plaintiff's Fee Waiver Request and Electronic Filing
Permission Request as moot.
Court reminds Plaintiff that if he continues to file
frivolous actions or documents, or fails to comply with Court
orders or rules, the Court may impose filing restrictions on
Plaintiff. See Tripati v. Beaman, 878 F.2d 351, 352
(10th Cir. 1989) (“[E]ven onerous conditions may be
imposed upon a litigant as long as they are ...