No brief filed for appellant.
No brief filed for appellee.
Appeal from the United States District Court for the District of Nebraska.
Before McMILLIAN, BOWMAN and MAGILL, Circuit Judges.
PER CURIAM.
, limiting him to a single monthly filing in that court, as well as prescribing certain conditions precedent to the filing of future lawsuits and prohibiting him from submitting pleadings on behalf of other prisoners. Tyler appealed this ruling in case No. 87-2259, sought mandamus relief of the order in case No. 87-8153, and sought mandamus to compel speedier disposition of his filings in case No. 87-8149. Because all three cases essentially seek review of the district court’s order, we consolidate them and dispose of all three in this opinion.
[2] We find no error of fact or law in the district court’s order, and we affirm it pursuant to 8th Cir.R. 14. Because we endorse
the policy and rationale of the district court, we attach the order to this opinion as Appendix I.
APPENDIX I
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IN RE BILLY ROY TYLER
MEMORANDUM AND ORDER
This matter is before the court on its own motion. Billy Roy
Tyler, a former inmate at the Nebraska State Penitentiary in
Lincoln, has filed numerous complaints in this court alleging
that his civil rights have been violated by the defendants named
in the suits. He has engaged in practices which have been abusive
to this court and its personnel, and has caused unnecessary
administrative expenses in the handling of his cases, as well as
delays in the handling of others. For these reasons, the court
takes it upon itself to address the abuses of Mr. Tyler’s
actions, and impose appropriate sanctions.
Since January 1, 1986 Mr. Tyler has filed 113 cases in this
court in his own name as petitioner or plaintiff. Prior to
January 1, 1986 he had filed 36 such lawsuits. In addition to
those in which he is a named plaintiff, he also has drafted
innumerable complaints in behalf of other inmates at the Nebraska
State Penitentiary or in those institutions in which he has been
confined. In all cases he has been granted leave to file such
complaints without the prepayment of costs or filing fees,
pursuant to the provisions of 28 U.S.C. § 1915. According to
records in the office of the clerk, 51 of Mr. Tyler’s cases were
dismissed without service of summons upon a finding that they
were either frivolous or had at least failed to state a claim
upon which relief could be granted under 42 U.S.C. § 1983. Six
were dismissed on motions of the defendants before trial.
Thirty-one cases were dismissed on the plaintiff’s motion before
trial. Two were dismissed when the plaintiff refused to appear at
a pretrial conference with the magistrate and defense counsel at
the penitentiary. Mr. Tyler filed no less than 17 petitions for
writs of habeas corpus, almost all of which challenged, on the
same grounds, the conviction for which he is serving a sentence.
Of his civil rights cases, only two have gone so far as to
require a trial, one of which was dismissed at the close of the
plaintiff’s case, and the other resulted in a judgment for
plaintiff for nominal damages in the amount of $5.00.
In addition to the above information which is taken from the
files in the office of the clerk, the court further notes that in
many cases Mr. Tyler has sought to appeal orders of the
magistrate to the Eighth Circuit Court of Appeals, which is
clearly not permitted; sought to appeal interlocutory orders of
the trial judges to the Eighth Circuit Court of Appeals; and
otherwise attempted to appeal nearly every disposition of his
cases to the Eighth Circuit Court of Appeals. All of such appeals
have been unsuccessful to date.
Further, Mr. Tyler has in his letters to the court, pleadings
filed with the court, and statements made during court sessions,
used foul and disgusting language, calling court staff, including
deputy and assistant clerks, law clerks, secretaries,
magistrates, and judges, racially derogatory names, hurled
epithets, and otherwise utilized abusive language disrespectful
of the court and all in his presence.
In those cases where Mr. Tyler’s requests for the appointment
of counsel have been granted, appointed counsel have been
similarly treated, and in all cases have been either dismissed by
Mr. Tyler or have been granted leave to withdraw in response to
his scorn.
Mr. Tyler has on several occasions named parties as defendants
in his complaints who have in no way been involved in the events
allegedly giving rise to his complaints, including all of the
judges of
Page 1292
this court, the magistrates of this court, the governor of the
State of Nebraska, his former attorneys, and even “Li’l Red
Riding Hood.” No attempt has been made in many of his complaints
to make any specific allegations with respect to every individual
named as a defendant in his complaints, thus requiring the
dismissal of such complaints as frivolous.
In complaints drafted by Mr. Tyler for signature by other
inmates, his propensity to name uninvolved parties as defendants
and to make broad, conclusional allegations against those named
has caused other inmates to suffer the dismissal of claims found
to be frivolous. Whether careful and deliberate drafting of
specific complaints would have caused such cases to go forward is
not known, of course, but in most instances in which Mr. Tyler
was the author of the complaints, it is apparent that his
services were of no great assistance to the inmate plaintiffs he
was seeking to help.
Despite this court’s orders dismissing his redundant habeas
corpus actions challenging the conviction for which he is serving
a sentence, he continued to submit additional petitions seeking
writs of habeas corpus challenging the same conviction on the
same grounds.
Recently Mr. Tyler wrote the court requesting that all of his
then-pending actions be dismissed in order that he might be
favorably considered for an interstate transfer. More than 30
such cases were dismissed in response to that request. The
interstate transfer has apparently now been granted, but his
steady flow of complaints has resumed, now originating from
Stillwater, Minnesota, the place of his present confinement.
Pending the issuance of this memorandum and order, several
complaints submitted for filing have been retained in order that
they may be treated in accordance with the terms of this order.
The fact that Mr. Tyler was willing to so readily dismiss
voluntarily over 30 pending cases in this court on the hope that
doing so would cause him to be transferred to another prison
indicates that he was not seriously pursuing the claims raised in
those cases.
The Supreme Court found in Bounds v. Smith, 430 U.S. 817,
97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), that an inmate in a state
prison has a constitutional right, under the due process clause
of the Fourteenth Amendment, to access to the courts. However,
there is “no constitutional right of access to the courts to
prosecute an action that is frivolous or malicious.” Phillips v.
Carey, 638 F.2d 207, 208 (10th Cir. 1981). As recently explained
by one court faced with a similar situation,
The Court has authority to control and manage
matters pending before it. This includes trial and
pre-trial actions. Turner v. American Bar
Association, 407 F. Supp. 451 (N.D.Tex. 1975); In re
Sarelas, 360 F. Supp. 794 (D.C.Ill. 1973), aff’d,
497 F.2d 926 (7th Cir. 1974). The need for such
control bears noting. First, Rule 1 of the Federal
Rules of Civil Procedure provides that the rules
shall be construed to secure the just, speedy, and
inexpensive determination of every action. Three
fundamental goals underlie this mandate; maintaining
the quality of justice, avoiding delay, and improving
the efficiency of dispute resolution. In order to
secure these values, we must recognize that judicial
resources are limited in the short run and need to be
protected from wasteful consumption. See, Hanson v.
Goodwin, 432 F. Supp. 853 (W.D.Wash. 1977). Frivolous,
bad faith claims consume a significant amount of
judicial resources, diverting the time and energy of
the judiciary away from processing good faith claims.
See, e.g., In re Green, 598 F.2d 1126 (8th
Cir. 1979).
The most apparent effect of excessive litigation is
the imposition of unnecessary burdens on, and the
useless consumption of, court resources. See, In re
Martin-Trigona, 573 F. Supp. 1237, 1242
(D.Conn. 1983). . . . As caseloads increase, courts
have less time to devote to
Page 1293
each case. A lack of adequate time for reflection
threatens the quality of justice. See, Franklin v.
Oregon, 563 F. Supp. 1310, 1319 (D.Or. 1983).
Second, long delays in adjudication create public
dissatisfaction and frustration with the courts. Such
delays also result in the unfortunate continuation of
wrongs and injustices while the cases that would
correct them sit on court calendars. Third, abusive
litigation results in prolonged, repetitive
harassment of defendants causing frustration and
often extraordinary and unreasonable expenditures of
time and money defending against unfounded claims.
Defendants have a right to be free from harassing,
abusive, and meritless litigation. See, Theriault v.
Silber, 574 F.2d 197 (5th Cir. 1978). Federal courts
have a clear obligation to exercise their authority
to protect litigants from such behavior. Chatmon v.
Churchill Trucking Co., 467 F. Supp. 79 (D.Mo. 1979).
The Court may, in its discretion, place reasonable
restrictions on any litigant who files
non-meritorious actions for obviously malicious
purposes and who generally abuses judicial process.
Phillips v. Carey, 638 F.2d 207, 209 (10th Cir.
1981). These restrictions may be directed to provide
limitations or conditions on the filing of future
suits. Id.
People of the State of Colorado v. Carter, 678 F. Supp. 1484,
1486 (D.Colo. 1986).
In Green v. White, 616 F.2d 1054 (8th Cir. 1980), the Eighth
Circuit Court of Appeals upheld major portions of an injunction
directing the clerks of the federal court in Missouri not to file
any pleadings from Mr. Green until he had fulfilled the
requirements of the order, including verification of all
pleadings; a list of all cases previously filed on the same,
similar, or related causes, as well as the opinions therein;
sending a copy of every pleading to the chief judge’s law clerk;
and paying all applicable filing fees. The Eighth Circuit
modified the injunction by deleting that part of it enjoining Mr.
Green from ever proceeding in forma pauperis under 28 U.S.C. § 1915.
Rather, the court permitted applications for in forma
pauperis status to be reviewed “in those pleadings, if any, that
specifically allege constitutional deprivation by reason of
physical harm or threats to petitioner’s person.” Id. at 1055.
Those cases were required to be reviewed, but could be dismissed
if found to be frivolous or malicious. Id. at 1056. See, also,
Peck v. Hoff, 660 F.2d 371 (8th Cir. 1981); Carter v. Telectron,
Inc., 452 F. Supp. 944 (S.D.Tex. 1977).
Mr. Tyler’s extensive experience in filing lawsuits in federal
and other courts has equipped him with at least some knowledge of
the law regarding prisoners’ constitutional rights.
Unfortunately, this experience has not taught him how to evaluate
whether or not a constitutional claim exists. His complaints
filed in this court usually recite events which occurred no more
than a few days prior to the drafting of the complaint, and oft
times on the same day the complaint was drafted. Given the
sometimes illegible handwriting in which the complaints are
couched, it is inferable that the complaint was literally
scrawled on the first piece of paper available to Mr. Tyler after
some event took place which he could interpret as possibly
implicating a denial of some constitutional right. His skills in
drafting are often sufficient to at least raise a question as to
factual matters alleged which could constitute a claim, thereby
preventing dismissal of the complaint as “frivolous” under
28 U.S.C. § 1915(d). On the other hand, it has most often been true
that once the allegations of the complaint are subjected to
factual determination through defense motions, trial, or
otherwise, the allegations contained in the complaints have been
found not to be true. In Horsey v. Asher, 741 F.2d 209 (8th
Cir. 1984), the court found that allegations in complaints which
are known to be false are “malicious” within the meaning of
28 U.S.C. § 1915(d), thereby justifying dismissal. The difficulty
insofar as use of the
Page 1294
court’s resources is concerned, is that a review of Mr. Tyler’s
pleadings alone is insufficient to determine whether the facts
therein alleged are true; for that purpose a trial, hearing, or
the presentation of affidavit testimony or records, is required
in most cases. Thus, simply to require a prefiling, or prompt
postfiling, review of his complaints submitted to this court is
insufficient to curb the abuses experienced.
Mr. Tyler has no money. The records of this court contain
documentation submitted by both Mr. Tyler and the appropriate
official from the Nebraska State Penitentiary, disclosing that
his prison trust account is for all practical purposes
non-existent as a source of funds for him to pay any fee for
filing cases in this court or elsewhere. Thus, it can be
concluded that if he were to be prohibited from proceeding in
forma pauperis in any case, his access to this court would be
totally denied. In accordance with Green v. White, supra, we
reject this alternative as too strict a sanction to impose upon
Mr. Tyler at this time. His lack of funds, however, also
precludes the typical sanctions available to the courts for
imposition upon other abusive litigants, such as those permitted
by Rule 11, Fed.R.Civ.P. imposing costs and attorneys fees upon
such parties.
Verification of pleadings may in some small measure thwart the
use of such allegations as may be outright mistruths, but without
a monetary or other sanction to penalize a false verification,
short of criminal prosecution, this requirement appears to us to
be of little value.
Likewise, the requirement of listing other cases filed in
federal court appears unnecessary, as such listing from Mr. Tyler
may not always be complete, and this court can review its own
files. However, in view of the fact that Mr. Tyler on some
occasions at least, filed duplicitous lawsuits in federal and
state courts, a requirement that he provide this court with
copies of any pleadings or claims made in state court which are
being asserted in this court appears most appropriate.
While we stop short of denying Mr. Tyler leave to proceed in
forma pauperis in all cases, we will limit him in the number of
cases he may file with such status in this court. Such a limit
will not deny him access to the court, particularly in view of
the fact that the statute of limitations for filing actions under
42 U.S.C. § 1983 in Nebraska is four years. Ellis v. Kneifl,
CV85-L-299 (D.Neb. Memorandum dated September 12, 1986 at p. 2),
[Available on Westlaw, 1986 WL 15946], and noting further that
under Nebraska statute such limitations period is tolled during
incarceration. See, Neb.Rev.Stat. § 25-213 (1986 Cum.Supp.).
Thus, in the event Mr. Tyler has serious claims to assert, he may
still assert them, albeit with some delay, and the most urgent of
his claims can still be presented to this court, at the rate of
one in forma pauperis filing per month.
In addition, we will prohibit Mr. Tyler from drafting
complaints for other inmates. His abuses of this court have not
been limited to those cases in which he has himself been a
plaintiff, but rather have also occurred in cases in which he
drafted the complaint for others. See, e.g., Moore v. Little Red
Riding Hood, CV86-L-629. Such practices, if permitted to
continue in cases filed for other prisoners would make a mockery
of this order, as well as more importantly, continuing disservice
to the other prisoners. This court is well aware that the legal
assistance available to inmates at the Nebraska State
Penitentiary may not be as readily available to some inmates as
they would like; however, Mr. Tyler’s availability for such
purposes would make no great difference in the availability of
such legal assistance.
Mr. Tyler’s abusive language and actions will no longer be
tolerated. The inclusion of such language is in all respects
“malicious” within the meaning of 28 U.S.C. § 1915(d). Therefore,
in the event any pleading submitted by Mr. Tyler for filing in
this court includes such language, leave to proceed in forma
pauperis will be denied. Nevertheless, however, that pleading
will
Page 1295
be counted as far as meeting his one complaint per month
limitation.
We expressly find, as did the court in Carter, supra, that
Mr. Tyler has flagrantly and repeatedly abused judicial process
by filing a multitude of meritless lawsuits, and that this course
of conduct will likely continue unabated unless preventive
measures are imposed. To insure the integrity of the judicial
process, therefore, the measures set forth below will be
required.
IT THEREFORE HEREBY IS ORDERED:
1. The clerk of this court is hereby directed not to accept in
excess of one pleading per month initiating a new lawsuit for Mr.
Billy Roy Tyler as plaintiff or petitioner, which is accompanied
by an application to proceed in forma pauperis, unless the
complaint or petition alleges in clear, specific language that
the plaintiff has been, or is about to be subjected to immediate,
extraordinary, and irreparable physical harm, such allegations
being supported by an accompanying affidavit which sets forth
clearly and specifically the facts giving rise to the complaint
and any documentation of such facts that may exist.
2. The clerk shall return to Billy Roy Tyler any and all
petitions or complaints submitted in excess of one per month,
unless the exception noted in paragraph 1 above applies,
including all such complaints presently held for filing prior to
the filing of this order.
3. In each new complaint or petition submitted to this court
for filing, Billy Roy Tyler shall set forth therein (a) whether
or not an action has been filed in any other court alleging the
same facts or claims, or related facts or claims as those
contained in the pleading submitted for filing in this court, and
if so, (b) Billy Roy Tyler shall submit a copy of such pleadings
from such other court as may be applicable, together with a copy
of the court’s ruling thereon, if any.
4. Each petition or complaint submitted to this court for
filing in forma pauperis, shall be accompanied by an affidavit in
support of the applicant’s leave to proceed in forma pauperis,
which shall be supported by a copy of Mr. Tyler’s trust account
statements for the twelve months preceding the submission to this
court, certified by the appropriate official at the Nebraska
State Penitentiary or other institution where Mr. Tyler may be
then confined.
5. Billy Roy Tyler shall not draft or submit any documents or
pleadings to this court in behalf of other inmates. In the event
such documents or pleadings are received by the clerk for filing,
they shall be returned to the inmate in whose name they have been
submitted, together with a copy of this memorandum and order.
They shall not be filed.
6. Nothing in this order shall prohibit Mr. Tyler from
proceeding as a proponent in any civil claim in this court with
the representation of an attorney licensed to practice in the
State of Nebraska and admitted to practice in this court.
Dated August 25, 1987.
BY THE COURT
/s/ C. Arlen Beam
C. Arlen Beam
Chief Judge
/s/ Warren K. Urbom
Warren K. Urbom
District Judge
/s/ Lyle E. Strom
Lyle E. Strom
District Judge