United States District Court, D. New Mexico
ORDER DENYING MOTION AND ORDER TO SHOW CAUSE
C. BRACK, SENIOR U.S. DISTRICT JUDGE
MATTER comes before the Court on Defendant's
Motion, filed on August 21, 2018. (Doc. 251.) This is the
fourth such motion Defendant has filed in this Court relating
to his sentence. (Docs. 226; 233; 244; 251.) The Court has
denied each of Defendant's previous requests. (Docs. 231;
has also filed three appeals related to his sentence with the
Tenth Circuit (Docs. 118; 182; 203), one petition for writ of
certiorari with the United States Supreme Court (Doc. 124),
and one motion pursuant to 28 U.S.C. § 2255 (Doc. 233),
which have all been denied (see Docs. 123; 127; 194;
now moves again for a sentence reduction. (See Doc.
251.) Defendant offers no new authority that would change the
Court's three previous decisions. (See id.)
Accordingly, the Court will deny Defendant's Motion.
the Court is mindful that Mr. Gutierrez is incarcerated,
acting pro se, and genuinely endeavors to shorten
his sentence, the Court cannot grant him unfettered access to
file countless motions on the same subject. See DePineda
v. Hemphill, 34 F.3d 946, 948-49 (10th Cir. 1994).
Defendant's continued filing of meritless motions arising
out of his plea and sentence constitutes an abusive pattern
Tenth Circuit has discussed the Court's power to impose
filing restrictions, as well as the procedure to impose such
“[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.
Court proposes to impose the following filing restrictions on
Defendant: (1) Defendant 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) Defendant, acting pro se,
may file motions asking the Court for permission to file a
document, entitled “Defendant's Motion for Leave to
File ___, ” with the title of the document he seeks
leave to file filled in the blank. With the Motion for Leave
to File, Defendant must attach a notarized affidavit
certifying that, to the best of his knowledge, his motion is
not frivolous or made in bad faith, it is warranted by
existing law or a good faith argument for the extension,
modification, or reversal of existing law, and the motion is
not made for any improper purpose such as delay or needless
increase in the cost of litigation. Defendant must also
attach to the Motion for Leave to File a copy of the document
he seeks leave to file.
Clerk will be directed not to accept, and to return to
Defendant without filing, any documents Defendant attempts to
file in this matter other than in the manner described in the
may file written objections to this Order to Show Cause.
Defendant's objections must be postmarked no later than
November 20, 2018. Defendant's objections must be
entitled “Defendant's Objections to Proposed Filing
Restrictions.” If Defendant fails to timely mail
objections complying with this Order, the Court will enter
the proposed filing restrictions without further notice. If
Defendant files timely objections complying with this Order,
restrictions will take effect only on entry of a subsequent
order ruling on the objections.
IS ORDERED that Defendant's Motion ...