United States District Court, D. New Mexico
DAVID A. GABALDON, Plaintiff,
ALBUQUERQUE WORK FORCE DEVELOPMENT, et al., Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL AND ORDER
TO SHOW CAUSE
MATTER comes before the Court on pro se
Plaintiff's Complaint, Doc. 1, filed May 21, 2018. For
the reasons stated below, the Court will
DISMISS this case without
prejudice. Plaintiff shall, within fourteen
(14) days from entry of this Order, show cause why the Court
should not enter the proposed filing restrictions described
Court has previously imposed filing restrictions on Plaintiff
stating: “Plaintiff also will be enjoined from
initiating further litigation in this Court . . . unless
either a licensed attorney who is admitted to practice before
this Court signs the pleading or Plaintiff first obtains
permission to proceed pro se.” Doc. 7 at 2,
filed February 22, 2018, in Gabaldon v. Sedillo, No.
17cv1106 MV/JHR (D.N.M.) (describing steps Plaintiff must
take to obtain permission to proceed pro se in this
Court). Plaintiff did not take the required steps to obtain
permission to proceed pro se in this Court and the
Complaint is not signed by a licensed attorney who is
admitted to practice before this Court. The Court will,
therefore, dismiss this case without prejudice.
Power to Impose Filing Restrictions
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
Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir.
initiated ten cases in the District of New Mexico from July
2016 to November 2017. Those ten cases were dismissed for
lack of jurisdiction or because Plaintiff did not file an
amended complaint. See Gabaldon v. Gabaldon, No.
16cv864 KG/SMV (dismissed for failure to file amended
complaint); Gabaldon v. Department of Justice, No.
16cv1035 WJ/WPL (dismissed for failure to file amended
complaint); Gabaldon v. Income Support Division, No.
16cv1049 RB/SCY (dismissed for failure to file amended
complaint); Gabaldon v. New Mexico, No. 17cv124
MCA/WPL (dismissed for lack of jurisdiction); Gabaldon v.
Presbyterian Hospital, No. 17cv128 JAP/KK (dismissed for
lack of jurisdiction); Gabaldon v. Wal-Mart
Supercenter, No. 17cv136 WJ/CG (dismissed for lack of
jurisdiction); Gabaldon v. Bernalillo County
Sheriff's Office, No. 17cv144 JCH/WPL (dismissed for
lack of jurisdiction); Gabaldon v. United Health
Care, No. 17cv146 JAP/LF (dismissed for lack of
jurisdiction); Gabaldon v. New Mexico Coalition to End
Homelessness, No. 17cv473 LH/KBM (dismissed for lack of
jurisdiction, remanded to state court); Gabaldon v.
Sedillo, No. 17cv1106 MV/JHR (dismissed for lack of
February 22, 2018, the Court imposed filing restrictions on
Plaintiff. See Doc. 7, Gabaldon v. Sedillo,
No. 17cv1106 MV/JHR. Since then, Plaintiff has filed eight
new cases, none of which complied with the filing
restrictions. See Gabaldon v. New Mexico Lottery,
No. 18cv348 KG/JHR; Gabaldon v. Albuquerque Family
Advocacy, No. 18cv373 JCH/KK; Gabaldon v. New
Mexico, 18cv395 MV/LF; Gabaldon v. Civilian Police
Oversight Agency, No. 18cv447 JCH/LF; Gabaldon v.
New Mexico Human Services Dep't, No. 18cv460 JAP/LF;
Gabaldon v. Gonzales, No. 18cv465 JB/KBM;
Gabaldon v. Albuquerque Work Force Development, No.
18cv470 JCH/LF; Gabaldon v. City of Albuquerque
Secirty [sic], No. 18cv484 KBM. In each
the Court has explained that it was dismissing the case
because Plaintiff did not comply with the filing
restrictions. The Court finds that additional filing
restrictions are appropriate so that the Court does not
expend valuable resources addressing future such cases.
sought to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 in all but two of the 18 cases he has
filed in this Court. Plaintiff has repeatedly abused the
privilege of filing civil actions without prepaying the
filing fee by not complying with the filing restrictions.
“When a litigant abuses these privileges, filing
restrictions are appropriate.” Werner v. Utah,
32 F.3d 1446, 1447 (10th Cir.1994) (per curiam).
Court intends to stop allowing Plaintiff to file new cases
without prepaying the filing fee. Federal law orders the
Clerk to require the parties instituting any civil action to
pay a filing fee. See 28 U.S.C. § 1914(a). The
statute governing proceedings in forma pauperis
allows, but does not require, the Court to authorize
commencement of an action without prepayment of
fees. See 28 U.S.C. § 1915(a)(1)
(stating “any court of the United States may
authorize the commencement” of an action without
prepayment of fees) (emphasis added). Section
1915(a) does not permit litigants to avoid payment of fees;
only prepayment of fees may be excused. See Brown v.
Eppler, 725 F.3d 1221, 1231 (10th Cir. 2013) (“all
§ 1915(a) does for any litigant is excuse the
pre-payment of fees”) (emphasis in
original). Accordingly, “proceeding in forma
pauperis in a civil case is a privilege, not a
right-fundamental or otherwise.” White v.
Colorado, 157 F.3d 1226, 1233 (10th Cir.1998), cert.
denied, 526 U.S. 1008 (1999). In some cases, federal law
requires that the Court deny certain parties the privilege of
proceeding in forma pauperis. See 28 U.S.C.
§ 1915(g) (the three-strikes provision of the in
forma pauperis statute requires certain
prisoners to prepay the entire filing fee before
federal courts may consider their civil actions and appeals);
see also White v. Colorado, 157 F.3d at 1233 (the
three-strikes provision “does not prevent a prisoner
with three strikes from filing civil actions; it merely
prohibits him from enjoying [in forma pauperis ]
status”); Abdul-Akbar v. McKelvie, 239 F.3d
307, 314 (3d Cir. 2001) (en banc) (“§
1915(g) does not block a prisoner's access to the federal
courts. It only denies the prisoner the privilege of filing
before he has acquired the necessary filing fee”).
Court proposes to impose the following additional filing
restrictions on Plaintiff: (i) Plaintiff may not commence any
civil actions without prepayment of fees; and (ii) The Clerk
of the Court shall not accept any ...