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Ombe v. State

United States District Court, D. New Mexico

January 10, 2018

HITOSHI OMBE, Plaintiff,
STATE OF NEW MEXICO, et al., Defendants.



         This matter is before the Court on the State Defendants' First Motion for Sanctions or in the Alternative Motion to Enjoin Plaintiff from Future Actions without Leave of the Court, filed on November 3, 2017. (Doc. 176.) Although Plaintiff, who is proceeding pro se and in forma pauperis, has submitted nine different documents in the more than two months since Defendants filed their Motion, Plaintiff has not responded to this Motion for Sanctions. (See Docs. 178, 179, 180, 182, 183, 186, 187, 188, 189.) For the reasons stated herein, the Court will deny Defendants' Motion for sanctions, but will grant Defendants' Motion insofar as it asks the Court to “enjoin plaintiff from filing any further documents in this case without leave of the Court.” (See Doc.176 at 1.)

         Mr. Ombe's case has been pending before this Court for over three years. In this time, Mr. Ombe has filed 37 pleadings, motions, and replies (including surreplies filed without leave of the Court), [1] 8 responses to Defendants' motions or court orders, [2] and 61 notices, letters, and other miscellaneous filings.[3] As the Defendants note in their Motion, Mr. Ombe expends a significant amount of energy in his filings disparaging opposing counsel and the Court.[4] (See Doc. 176 (listing a litany of examples).)

         The Court is mindful that Mr. Ombe is acting pro se, speaks English as a second language, and has certain diagnoses that present challenges. The Court cannot, however, grant Mr. Ombe unfettered access to file countless notices and papers that do little to further this case.

         The Tenth Circuit has discussed the Court's power to impose filing restrictions, as well as the procedure to impose such restrictions:

“[T]he 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.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (per curiam) (citation omitted). “There is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.” Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986). “Even onerous conditions may be imposed upon a litigant as long as they are designed to assist the . . . court in curbing the particular abusive behavior involved, ” except that they “cannot be so burdensome . . . as to deny a litigant meaningful access to the courts.” Id. (brackets and internal quotation marks omitted). “Litigiousness alone will not support an injunction restricting filing activities. However, injunctions are proper where the litigant's abusive and lengthy history is properly set forth.” Tripati, 878 F.2d at 353 (citations omitted). “[T]here must be some guidelines as to what [a party] must do to obtain the court's permission to file an action.” Id. at 354. “In addition, [the party] is entitled to notice and an opportunity to oppose the court's order before it is instituted.” Id. A hearing is not required; a written opportunity to respond is sufficient. See id.

Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013).

         Proposed Filing Restrictions

         The Court proposes to impose the following filing restrictions on Plaintiff:

         (1) Plaintiff may file documents by and through a licensed attorney who is admitted to practice before this Court and has appeared in this action and signed the documents to be filed.

         (2) Plaintiff, acting pro se, may file motions asking the Court for permission to file a document, entitled “Plaintiff's Motion for Leave to File ___, ” with the title of the document he seeks leave to file filled in the blank. The Motion for Leave to File must be no more than five typed, double-spaced pages in length, and must certify that, to the best of Plaintiff's knowledge, the document he seeks leave to file complies with the Federal Rules of Civil Procedure and the Local Civil Rules of the United States District Court for the District of New Mexico. Plaintiff must attach to the Motion for Leave to File a copy of the document he seeks leave to file. Plaintiff may seek leave to file only one document per motion.

         (3) Any document Plaintiff seeks leave to file must specifically comply with Local Rules 7 and 10, Motion Practice, including the timing of motions and the restrictions on page length (both briefs and exhibits). See D.N.M. LR-Civ. 7.4(a) (requiring that “[a] response must be served and filed within [14] calendar days after service of the motion[, ]” and [a] reply must be served and filed within [14] calendar days after service of the response”; a party who seeks an “extension must file a separate motion within the applicable [14] day period[, ]” and any extension “must not interfere with established case management deadlines”); D.N.M. LR-Civ. 7.4(b) (requiring leave of Court to file a surreply); D.N.M. LR-Civ. 7.5 (limiting the length of a motion to 27 double-spaced pages, a response brief to 24 double-spaced pages, and a reply brief to 12 double-spaced pages); D.N.M. LR-Civ. 10.5 (limiting exhibits to 50 pages “unless all parties agree otherwise” or if no agreement can be reached, “the party seeking to exceed the page limit must file a motion in accordance with D.N.M. LR-Civ. 7”).

         (4) The Court hereby notifies Plaintiff that it will not approve any motion seeking leave to file a “Notice” or “Progress/Status Report” or other miscellaneous pleading that does not further the progress of this case.

         (5) With the exception of appropriate replies to Plaintiff's own motions, [5] responses to Defendants' motions or to this Court's orders seeking a response, Plaintiff is hereby limited to filing only one document each month as detailed in paragraphs above.

         (6) From this date forward, Plaintiff may not file any document via fax. Plaintiff shall either bring his motions to the United States District Court Clerk's Office intake table in person (see Doc. 181, attached as Ex. 1 to this Order), or mail motions (including any objections to this Order to Show Cause) to:

U.S. District Court
District of New Mexico
100 N. Church Street, Suite 280
Las Cruces, NM 88001

         (7) Plaintiff shall refrain from denigrating opposing counsel and this Court. Plaintiff's future use of abusive and harassing language shall be cause for sanctions, up to and ...

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