76 F.3d 392
Clovis Carl GREEN, Jr., Petitioner-Appellant,
William J. PRICE, Warden; Aristedes W. Zavaras, Executive
Director, Colorado Department of Corrections;
Gale A. Norton, Attorney General;
People of the State of
Clovis Carl GREEN, Jr., Petitioner-Appellant,
John SIMONET; Aristedes W. Zavaras, Executive Director,
Colorado Department of Corrections; Robert Furlong,
Warden/Superintendent; People of the State of Colorado;
Gale A. Norton, Attorney General of Colorado, Respondents-Appellees.
Nos. 95-1079, 95-1080.
D.C. No. 95-X-9.
D.C. No. 95-X-11.
United States Court of Appeals, Tenth Circuit.
Feb. 9, 1996.
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Before SEYMOUR, Chief Judge, McKAY, and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
McKAY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted without oral argument.
In No. 95-1079, petitioner Clovis Carl Green, Jr. appeals from an order of the district court dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254. In No. 95-1080, Mr. Green appeals from the district court's denial of his Fed.R.Civ.P. 60(b) motion filed in the same case. We reverse and remand No. 95-1079 for further proceedings. We dismiss No. 95-1080 as moot.
Mr. Green filed this 2254 petition challenging his convictions on charges of second degree sexual assault and criminal extortion. He was sentenced to life imprisonment with forty years for parole eligibility on the sexual assault conviction and eight years on the criminal extortion conviction to run concurrently with the life sentence.
In his petition, Mr. Green raised thirty-one issues. The district court dismissed the case holding that Mr. Green had failed to comply with the requirements of Appendix B2 because he did not list all the cases he has previously filed.
"[P]risoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977). While this right is not unlimited, we have held that a total deprivation of access to the courts would be a constitutional violation. See Housley v. Dodson, 41 F.3d 597, 598-99 (10th Cir.1994)(and cases cited therein).
However, "an indigent person3 has no constitutional or other right of access to the courts to prosecute" duplicative, malicious, frivolous, or harassing actions. Phillips v. Carey, 638 F.2d 207, 209 (10th Cir.), cert. denied, 450 U.S. 985 (1981). Therefore, " ' "onerous conditions" may be imposed upon a litigant as long as they are designed to assist the district court in curbing the particular abusive behavior involved. The conditions cannot be so burdensome, however, as to deny a litigant meaningful access to the courts.' " Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir.1989)(quoting Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986) (citations omitted)).
When deciding to impose sanctions on an abusive litigant the court must balance two competing interests: (1) the litigant's constitutional right of access to the courts, see Bounds, 430 U.S. at 821; and (2) the court's inherent power to regulate its docket, see Link v. Wabash R.R., 370 U.S. 626, 629-31 (1962); see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980)(most prominent inherent power of federal court is contempt sanction, " 'which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court ....' " (quoting Cooke v. United States, 267 U.S. 517, 539 (1925)).
Clearly, Mr. Green is among the small class of prisoners who abuse their constitutional privilege of access to the courts by constantly inundating the courts with a barrage of voluminous, and typically meritless, filings. He is a textbook example of a prisoner who has abused and who continues to abuse his right of access to the courts. An exhaustive review of the record by this court reveals that Mr. Green, over the past two decades, has maintained a continuous stream of meritless filings. Speculating as to Mr. Green's motive behind his voluminous litigation, one court concluded that Mr. "Green considers it his lot in life to taunt, trouble and harass the courts of this land, both state and federal." Green v. Arnold, 512 F.Supp. 650, 652 (W.D.Tex.1981). It is clear from the record that Mr. Green's filings are often derogatory in their text and are extraordinarily abusive both in their volume and lack of merit. Mr. Green's own admission to having filed over 1,000 cases confirms this view. We further note that while Mr. Green has on occasion obtained relief on issues relating to access to the courts, he has failed to succeed in any claim relating to the merits of his convictions or sentences. See Green v. Camper, 477 F.Supp. 758, 770 (W.D.Mo.1979)("[I]t is clear that, in virtually every instance in which plaintiff's claims have appeared colorably valid on the face of his pleadings, an evidentiary probing of those claims has revealed total insubstantiality.").
The district court has every right to, and must, impose sanctions on Mr. Green to control his abuse of court processes. However, the requirement that Mr. Green list all prior cases he has filed in the courts of this nation, stating his involvement in each case and disclosing the judgment issued goes too far. Mr. Green argues that he cannot comply with Appendix B as applied because (a) his legal papers were lost by prison officials when he was moved to a new prison; (b) prison regulations allow him only one box of legal papers; (c) he is permitted to possess only court documents relating to cases currently pending; and (d) courts in which he has previously filed cases have refused to provide the required materials free of charge. Mr. Green argues this listing requirement obstructs his access to the courts and is irrelevant to his current cases. He asserts that the requirement was imposed as reprisal against him for exercising his constitutional rights and that no evidence supports the district court's conclusion that he knowingly filed frivolous suits.
We agree with Mr. Green, albeit for different reasons, that this requirement is inappropriate. Our concern is that the district court's demand will place an unnecessary burden on our sister federal and state courts throughout the country. We see no point in forcing these courts to replicate over 1,000 records when few, if any, would be relevant to his current complaint.
The district court held that Mr. Green did not need access to copies of his prior filings to comply with Appendix B. We disagree. We find no reason to dispute Mr. Green's assertions that he does not have current access to his prior filings due to prison regulations limiting the legal papers he may retain. Thus, the cooperation of court personnel across the country would be necessary before he could comply with the current requirements of Appendix B. In effect, this requirement places a total ban on Mr. Green's access to the courts.
Further, like all convicted criminals, Mr. Green has the basic right to challenge his current conviction in the court of primary jurisdiction. After exhausting his state remedies, he has the right to bring a federal habeas corpus action challenging the constitutional validity of that affirmed and exhausted conviction. See 28 U.S.C. 2241-2255. Therefore, the trial court must entertain a properly verified petition for habeas corpus directly challenging the constitutional validity of Mr. Green's current conviction and sentence.
The sanctions imposed on Mr. Green must bear a relationship to controlling his access to the court, but must not totally prohibit it. The court may require Mr. Green to list all cases in which the issues he currently raises have been or should have been raised. Certainly, he may be required to compile this list under oath. We, therefore, modify the court's requirement that Mr. Green list all his previous cases to reflect that Mr. Green list all cases, including state court cases showing exhaustion, which relate to the matters raised or which arise in the relevant time frame. The listing will assist the court in determining if the current filing constitutes an abuse of the writ or is otherwise infirm. On remand, Mr. Green should be permitted to amend his petition to set forth all exhausted constitutional claims, including proof of exhaustion.
Of course, the district court is free, as are we, to limit the number of filings it will accept in a pending matter to those necessary to the advancement of the action. We note that interlocutory appeals from the district court's orders limiting Mr. Green's filings in pending cases will not be entertained. Mr. Green is entitled to one appeal to this court after final judgment is entered.
We remind Mr. Green that it is incumbent upon prisoners filing habeas corpus petitions to raise all issues regarding the constitutionality of their conviction and incarceration in the first habeas corpus action. Any further habeas corpus petitions upon this conviction will be dismissed as successive and abusive, absent truly extraordinary circumstances such as proof of actual innocence. See Rules Governing 2254 Cases 9(b). Similarly, all appealable issues must be raised together in one appeal.
In No. 95-1080, Mr. Green moved to reopen this case so he could set forth additional constitutional claims and issues which he claimed had been fully exhausted. He also asserted that the district court had jurisdiction over his claims and he could not comply with Appendix B. Based on our disposition of No. 95-1079, we need not determine whether the district court properly denied his Rule 60(b) motion. This appeal is moot.
The judgment of the United States District Court for the District of Colorado is REVERSED in No. 95-1079 and the case is REMANDED for further proceedings in accordance with this order and judgment. Further, the court should MODIFY Appendix B to reflect the goal4 of controlling Mr. Green's access to the court, but not completely prohibiting it. Appeal No. 95-1080 is DISMISSED as moot. We GRANT Mr. Green's motion for leave to proceed in forma pauperis on appeal and issue a certificate of probable cause. All other outstanding motions are DENIED. The mandates shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
Appendix B imposed sanctions on Mr. Green by setting forth prerequisites with which Mr. Green must comply before he may file an action in the United States District Court for the District of Colorado. See Green v. Simonet, 19 F.3d 1443 (10th Cir.1994)(Table)(affirming in part and remanding the case for modification of the Appendix B sanctions). In that Mr. Green has now challenged the sanctions both as written and as applied, any further challenges to Appendix B are barred
Cases addressing abuse of the right of access to the courts have been particularly concerned with indigent litigants. Indigent litigants have little or no motivation to screen their cases prior to filing due to the lack of financial considerations which deter litigants not proceeding in forma pauperis. See In re McDonald, 489 U.S. 180, 184 (1989)
This goal also applies to any civil cases Mr. Green may file challenging his conditions of confinement. Access to the court cannot be denied should he assert, under oath, valid issues not raised before such as conditions posing an immediate threat of harm to his health or safety. Of course, should the district court discover Mr. Green has not been totally truthful in any pleading, appropriate sanctions may be imposed so long as they do not have the practical effect of totally closing his access to the courts. We warn Mr. Green, that should the sanction imposed in such a circumstance include dismissal of the case in which he asserted false claims, such a sanction is not a total denial of access to the court. Mr. Green can prevent such a sanction by filing only objectively honest pleadings