Tso v. Murray
United States District Court, D. Colorado
September 18, 2019
GILBERT T. TSO, a natural person and an American, Plaintiff,
v.
REBECCA MURRAY, a/k/a Tso, individually, TANYA AKINS, individually, SHERR PUTTMANN AKINS LAMB PC, law firm, JEANNIE RIDINGS, individually, KILILIS RIDINGS & VANAU PC, a law firm, RUSSELL MURRAY, individually, DENA MURRAY, individually, JOANNE JENSEN, individually, RICHARD F. SPIEGLE, PSY.D., individually, ELIZABETH A. STARRS, individually, DAVID P. BRODSKY, individually, CHARLES D. JOHNSON, individually, ROSS B.H. BUCHANAN, individually, DAVID H. GOLDBERG, individually, MONICA JACKSON, individual and official capacity, LARA DELKA, individual and official capacity, CHRISTIAN MADDY, individual and official capacity, JENNIFER ADELMANN, individual and official capacity, DON MARES, official capacity, BARRY PARDUS, official capacity, MICHAEL DIXON, official capacity, CYNTHIA COFFMAN, official capacity, 19th JUDICIAL CIRCUIT COURT, LAKE CO., IL, 2nd DISTRICT COURT, DENVER COUNTY, CO, DENVER DEPT. OF HUMAN SERVICES, COLORADO DEPT. OF HUMAN SERVICES, COLORADO DIVISION OF MOTOR VEHICLES, and CITY AND COUNTY OF DENVER, Defendants.
ORDER ACCEPTING MAGISTRATE JUDGE’S
RECOMMENDATION
PHILIP
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the Recommendation of United
States Magistrate Judge Scott T. Varholak (“the
recommendation”) filed on August 5, 2019 [Docket No.
219]. Magistrate Judge Varholak recommends that the Court
grant the Colorado Defendants’ Amended Motion for
Filing Sanctions and Request for Expedited Ruling [Docket No.
207] and impose filing restrictions against plaintiff Gilbert
T. Tso.[1]Plaintiff filed timely written objections.
Docket No. 225.
The
Court will “determine de novo any part of the
magistrate judge’s disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
proper if it is specific enough to enable the Court “to
focus attention on those issues – factual and legal
– that are at the heart of the parties’
dispute.” United States v. 2121 East 30th
Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In light of
plaintiff’s pro se status, the Court reviews
his filings liberally. See Haines v. Kerner, 404
U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 n.3 (10th Cir. 1991).
This
case arises from the dissolution of plaintiff’s
marriage to defendant Rebecca Murray and the resulting
domestic proceedings in Illinois and Colorado.[2] The Court
dismissed all of plaintiff’s claims as barred by the
Rooker-Feldman doctrine. Docket No.
188.[3]
After the Court entered judgment, the Colorado defendants
moved to restrict plaintiff from filing additional pro
se lawsuits in this Court related to the Illinois and
Colorado domestic proceedings. Docket No. 207 at
8.[4]
The magistrate judge recommends granting the motion. The
recommendation summarizes plaintiff’s “long
history of filing repetitive claims” and
“pursu[ing] numerous facially appropriate
motions.” Docket No. 219 at 20. The recommendation
concludes that, “[b]ecause [plaintiff’s]
unwillingness to accept the validity of the [Illinois and
Colorado domestic proceedings] imposes an undue burden on the
Court’s and [d]efendants’ time and resources . .
. the imposition of filing restrictions is warranted.”
Id. The recommendation proposes that plaintiff be
barred from filing new actions in this Court related to the
Illinois and Colorado domestic proceedings “without the
representation of a licensed attorney admitted to practice in
the District of Colorado, unless [plaintiff] obtains
permission” to proceed pro se. Id. at
22-23. The recommendation further outlines a process by which
plaintiff can petition for permission to proceed pro
se. Id. at 23.
Because
“the right of access to the courts is neither absolute
nor unconditional,” federal courts may “regulate
the activities of abusive litigants by imposing carefully
tailored restrictions under the appropriate
circumstances.” Tripati v. Beaman, 878 F.2d
351, 352-53 (10th Cir. 1989). Filing restrictions are proper
where (1) a “litigant’s abusive and lengthy
history is properly set forth,” (2) the court provides
guidelines as to what the litigant “must do to obtain
the court’s permission to file an action,” and
(3) the litigant receives “notice and an opportunity to
oppose the court’s order before it is
instituted.” Id. at 353-54; United States
v. Coleman, 707 Fed.Appx. 563 (10th Cir. 2017)
(unpublished).
The
Court understands plaintiff to be making four objections to
the recommendation: (1) there is no merit to the contention
that plaintiff is an abusive litigant; (2) the magistrate
judge improperly relied upon plaintiff’s history in the
state court to establish his litigation history; (3) it is
premature to conclude that Rooker-Feldman bars all
of plaintiff’s claims; and (4) the proposed filing
restrictions are not the least-restrictive means of enjoining
plaintiff’s behavior. Docket No. 225.
Plaintiff’s
objection that the magistrate judge failed to establish that
plaintiff is an abusive litigant is without merit. The
magistrate judge’s recommendation carefully sets out
plaintiff’s extensive litigation history, both in the
Illinois and Colorado domestic proceedings and in federal
court. See Docket No. 219 at 4-20. The
recommendation describes all four of plaintiff’s
federal cases in this District, in which plaintiff has
repeatedly pursued both “facially inappropriate
motions” – e.g. repeatedly moving for temporary
restraining orders against defendants and Fed.R.Civ.P. 11
sanctions against defendants’ counsel – and
claims for which both this Court and the Tenth Circuit have
made clear that plaintiff is “not entitled to any
relief.” See id. at 20.
Plaintiff
contends that his filing history is not “abusive and
lengthy” under Tripati because he has only
brought four actions in this Court. See Docket No.
225 at 6-9 (noting that the abusive litigants in the cases
cited in Tripati entered between thirty-seven and
700 complaints). However, there is no support in the
post-Tripati case law for the proposition that a
litigant must file a certain number of abusive actions before
a court may impose filing restrictions. See, e.g.,
Coleman, 707 Fed.Appx. 563 (affirming filing
restrictions against litigant who filed “six motions
and two civil lawsuits”); Calvin v. Lyons, 770
Fed.Appx. 433, 434 (10th Cir. 2019) (unpublished) (affirming
filing restrictions against litigant after filing four civil
actions). The Tenth Circuit has, for example, affirmed filing
restrictions placed on a litigant who “filed multiple
lawsuits in federal court, all but one related to the same
state divorce and custody proceedings.” See
Blaylock v. Tinner, 543 Fed.Appx. 834, 836 (10th Cir.
2013) (unpublished). The litigant continued to file lawsuits
despite being informed that his claims are barred by the
Rooker-Feldman doctrine, which the Court described
as “painting new veneers on essentially the same
claim.” See Id. The Court has no difficulty
finding that, like the litigant in Blaylock,
plaintiff’s repetitive attempts to relitigate the
Illinois and Colorado domestic proceedings in federal court
in Colorado are sufficiently numerous as to merit filing
restrictions.
Moreover,
this case is unlike Tripati and the other cases
plaintiff relies upon involving the filing of a large number
of cases in that those cases involve plaintiffs who file a
large volume of cases on different subjects against different
defendants. By contrast, plaintiff continues to file cases
against mostly the same defendants based on the same dispute.
Plaintiff’s conduct merits filing restrictions, despite
plaintiff filing fewer cases than the plaintiff in
Tripati, because plaintiff is ignoring the
jurisdictional defect common to each of his cases and shows
no sign of abating his practice of filing new cases (with the
same jurisdictional defect) after one of his current cases is
dismissed. The magistrate judge’s proposed filing
restrictions take this distinction into account by tailoring
the restrictions to the subject matter of plaintiff’s
past filings in the District of Colorado.
The
Court also agrees with the magistrate judge, contrary to
plaintiff’s assertions, that plaintiff’s
litigation history is “abusive.” See
Docket No. 219 at 20 (noting that plaintiff’s
litigation history has “impose[d] an undue
burden” on defendants’ time and resources);
Calvin, 770 Fed.Appx. at 435 (noting that a
plaintiff’s “relentless pursuit of an order that
a federal court cannot issue” can become abusive even
though his or her “intentions may be innocent”).
Thus, the Court will overrule plaintiff’s first
objection.
Plaintiff’s
second objection appears to argue the magistrate judge
improperly relied upon plaintiff’s actions in the
Illinois and Colorado domestic proceedings to establish his
litigation history. See Docket No. 225 at 10-13.
While the Court agrees that plaintiff’s litigation
history in state court is not a basis to impose filing
restrictions here, the recommendation to impose filing
restrictions is justified based on plaintiff’s behavior
in federal court. See Docket No. 219 at 20
(“Despite this Court and the Tenth Circuit making clear
that [plaintiff] is not entitled to any relief from the
federal courts with regard to the [Illinois and Colorado
domestic proceedings] and denying [plaintiff] leave to amend,
[plaintiff] continues to pursue relief from this Court by
filing new lawsuits.”). Thus, the Court will overrule
plaintiff’s second objection.
Plaintiff’s
third objection argues that it is “premature” to
argue that his claims are barred by Rooker-Feldman,
contending that “the Tenth Circuit will need to provide
guidance and clarification as to whether [plaintiff] properly
navigated the Tenth Circuit’s interpretation of
Rooker-Feldman.” Docket No. 225 at 13-15. As
an initial matter, plaintiff’s right to appellate
review in both this case and other pending actions is not
affected by the proposed filing restrictions. If the Tenth
Circuit disagrees with the Court’s disposition of this
action, this case will continue. However, the Tenth Circuit
has already held that plaintiff’s claims arising out of
the Illinois and Colorado domestic proceedings in
16-cv-02480-WJM-STV were barred by Rooker-Feldman.
See Tso v. Murray, 760 Fed.Appx. 564, 567-68 (10th
Cir. 2019) (unpublished) (noting that, except for “one
insignificant exception,” “the harms for which
[plaintiff] seeks relief . . . all result from state-court
judgments”). Plaintiff has not articulated a persuasive
reason why his claims would fare any better were he permitted
to file more lawsuits arising out of the same set of facts.
See Docket No. 225 at 13. It is evident from
plaintiff’s objection he continues to ignore that the
Rooker-Feldman doctrine deprives the Court of
jurisdiction over his challenges to the Illinois and Colorado
domestic judgments. See Docket No. 225 at 14;
see also Docket No. 188 at 20 (“The problem
with plaintiff’s claims is not that his pleadings are
less skillful. It is that they allege conduct that Congress
has barred this Court from reviewing.”).[5] Thus, the Court
will overrule plaintiff’s third objection.
Finally,
plaintiff objects that the proposed filing sanctions are not
the least-restrictive means of addressing his filing
behavior. Docket No. 225 at 15-17. Plaintiff suggests that
the Court should allow plaintiff to continue
“unencumbered” as a pro se litigant with
the assistance of a “second chair” attorney who
“serves at the pleasure of” plaintiff.
Id. at 17. The Court disagrees. Plaintiff does not
cite – and the Court has not found – any Tenth
Circuit authority applying a least-restrictive means analysis
in crafting filing restrictions.[6] Moreover, there is no basis
for allowing plaintiff to continue pro se with
“assistance” from a second-chair attorney.
Plaintiff fails to explain why this option is superior to the
restriction proposed in the recommendation, which requires
plaintiff to obtain representation from a licensed attorney
admitted to practice in this District in order to file a new
action related to the subject matter identified herein. The
Court does not believe that allowing plaintiff to continue
with “assistance” from an attorney is adequate to
ensure that plaintiff’s pattern of abusive and lengthy
filings on this subject matter will cease.
The
Court is satisfied that filing restrictions against plaintiff
are ...