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Kucera v. Lawrence Livermore National Laboratories

United States District Court, D. New Mexico

April 27, 2018

GREGORY EDWARD KUCERA, Plaintiff,
v.
LAWRENCE LIVERMORE NATIONAL LABORATORIES, Defendant.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL AND ORDER TO SHOW CAUSE

          WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed March 15, 2018 (“Complaint”). For the reasons stated below, the Court DISMISSES this case without prejudice. Plaintiff shall, within 14 days of entry of this Order, show cause why the Court should not impose filing restrictions. The Clerk of Court shall UNSEAL this case.

         Dismissal for Lack of Subject Matter Jurisdiction

          Plaintiff used the form “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983” to initiate this case. The only allegation that Plaintiff wrote in the form Complaint states in its entirety: “Character Defamation.” Complaint at 2. Plaintiff attached a note to the Complaint which states: “Please seal with national security issues.” Complaint at 7.

         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”); Evitt v. Durland, 243 F.3d 388 *2 (10th Cir. 2000) (“even if the parties do not raise the question themselves, it is our duty to address the apparent lack of jurisdiction sua sponte”). While the form Complaint states “Jurisdiction in invoked pursuant to 28 U.S.C. § 1343[a](3), 42 U.S.C. § 1983, ” there are no allegations that Defendant deprived Plaintiff of any right, privilege or immunity secured by the Constitution or any federal law. Plaintiff's Complaint does not otherwise contain “a short and plain statement of the grounds for the court's jurisdiction” as required by Rule 8(a)(1) of the Federal Rules of Civil Procedure.

         The Court will dismiss the Complaint without prejudice for lack of jurisdiction. 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.”).

         Court's Power to Impose Filing Restrictions

         The Court of Appeals for the Tenth Circuit has discussed the Court's power to impose filing restrictions and the procedure for imposing filing 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).

         Litigant's Abusive History

         This is the sixth civil case Plaintiff has initiated in the District of New Mexico since August, 2017. See Kucera v. Choi, No. 17cv789 KG/SCY (dismissed for failure to state a claim); Kucera v. United States, No. 17cv1228 JB/KK (dismissed for lack of subject-matter jurisdiction); Sealed Case, No. 18cv94 JB/GJF (pending); Kucera v. Los Alamos National Labs, No. 18cv95 JCH/SCY (dismissed for lack of subject-matter jurisdiction); and Kucera v. Sandia Corp., No. 18cv166 WJ/LF (dismissed for lack of subject-matter jurisdiction). Despite the Court's previous notices that Plaintiff has the burden of alleging facts to support jurisdiction, Plaintiff filed a Complaint in this case that does not contain “a short and plain statement of the grounds for the court's jurisdiction” as required by Rule 8(a)(1) of the Federal Rules of Civil Procedure. Furthermore, the Complaint Plaintiff filed in his previous case, like his Complaint in this case, contains very few factual allegations. See Doc. 1 at 4-5 in Kucera v. Sandia Corp., No. 18cv166 WJ/LF (the only allegations Plaintiff wrote in the form Complaint are “Classified, ” “Speech/[illegible], ” “Manslaughter, ” and “Settle out of court”). The Court finds that filing restrictions are appropriate so that the Court does not expend valuable resources addressing future such cases.

         Proposed ...


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