United States District Court, D. New Mexico
GREGORY E. KUCERA, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL AND TO SHOW
MATTER comes before the Court on Plaintiff's Complaint,
Doc. 1, filed November 5, 2019, and on Plaintiff's
Amended Complaint, Doc. 6, filed November 7, 2019.
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. 6 at 2,
filed May 21, 2018, in Kucera v. Lawrence Livermore
National Laboratories, No. 1:18-cv-00250-WJ-LF (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, therefore, dismisses this case without
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.
the second case that Plaintiff has filed after the Court
imposed filing restrictions. Plaintiff has not complied with
the filing restrictions in either case. See Doc. 5,
filed October 8, 2019, in Kucera v. Department of
Justice, No. 1:19-cv-00931-MV-JFR (D.N.M.) (reminding
Plaintiff that the Court had previously imposed filing
restrictions). Because Plaintiff continues to initiate
litigation without complying 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 seven of the eight cases he has filed
in this Court. Plaintiff has not filed a motion to
proceed in forma pauperis or paid the filing fee in
this case. 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 documents initiating a new
case unless Plaintiff prepays the filing fee.