Jabari J. Johnson v. James Johnson; Cruz; Modlin; Carillo

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JABARI J. JOHNSON,
Plaintiff - Appellant,
v.
JAMES JOHNSON; CRUZ; MODLIN;
CARILLO,
Defendants - Appellees.
No. 21-1152
(D.C. No. 1:21-CV-01037-LTB)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________
Plaintiff Jabari J. Johnson, appearing pro se, appeals the district court’s
dismissal of his most recent civil rights complaint. Over the past few years, Plaintiff
has filed over 100 actions. Plaintiff also has three strikes under the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. § 1915(g), and thus faces district-court filing
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 6, 2021
Christopher M. Wolpert
Clerk of Court
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restrictions. 1, 2 Plaintiff disregarded those filing restrictions here, and the district
court dismissed his action without prejudice for failure to comply with them.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Further, we now impose
our own filing restrictions.
1 See Johnson v. Hill, et al., No. 20-cv-00188 (D. Colo. March 6, 2020);
Johnson v. Hampton, No. 20-cv-00161 (D. Colo. Mar. 6, 2020); Johnson v. Ponce,
No. 20-cv-00014 (D. Colo. Mar. 4, 2020); Johnson v. Allen, et al., No. 17-cv-2793
(D. Colo. Mar. 20, 2018).
2 The district court imposed the following restrictions in Johnson v. Little:
1) To initiate an action Plaintiff/Applicant must properly complete a Court-
approved prisoner complaint/habeas corpus application form by completing
all sections of the form pursuant to the form instructions, which is not
limited to but includes writing legibly, listing only one defendant per line
in the caption of the form, and providing all named defendants in the
information required in Section E. of the complaint form for each separate
case he has filed in this Court;
2) To initiate an action Plaintiff/Applicant must at the same time he submits a
prisoner complaint/habeas corpus application either pay the required filing
fee, or in the alternative submit a request to proceed pursuant to 28 U.S.C.
§ 1915 on a form that is approved by this Court and applicable to the action
being filed, and attach a certified inmate account statement and
authorization for disbursement as required; and
3) To initiate an action Plaintiff must provide a notarized affidavit that
certifies the lawsuit is not interposed for any improper purpose to harass or
cause unnecessary delay, and that the filing complies with this injunction,
Fed. R. Civ. P. 8, all other provisions of the Federal Rules of Civil
[Procedure], and the Local Rules of Practice of the United States District
Court for the District of Colorado.
Johnson v. Little, No. 20-CV-02613-GPG, 2020 WL 5887449, at *1 (D. Colo. Sept.
15, 2020), aff’d, No. 20-1355, 2021 WL 1561337 (10th Cir. Apr. 21, 2021)
(unpublished) (citing Johnson v. Hawkins, No. 19-cv-03730-LTB, ECF No. 3 at 10–
11 (D. Colo. Mar. 4, 2020) (unpublished) (setting out restrictions)).
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We review the district court’s dismissal of an action “for failure to follow
court orders and rules” for abuse of discretion. Gripe v. City of Enid, 312 F.3d 1184,
1188 (10th Cir. 2002).
Plaintiff alleged four violations of his constitutional rights under § 1983 in the
complaint underlying this appeal. 3 But the district court dismissed his complaint
without prejudice for failure to comply with his filing restrictions because he did not
submit a 28 U.S.C. § 1915 motion and affidavit with his six-month certified account
statement or pay the district-court filing fee. He also did not properly complete the
Prisoner Complaint Form. Plaintiff contended that “Law Librarian Hansen . . .
denied him a certified six-month account statement, a list of the cases he . . . filed,
and notarization of his compliance statement.” But the district court dismissed his
complaint anyway because he failed to assert claims that complied with Federal Rule
of Civil Procedure 8. By the same order dismissing Plaintiff’s complaint for failure
to comply with his filing restrictions, the district court denied Plaintiff in forma
pauperis (“IFP”) status on appeal. Under 28 U.S.C. § 1915(a)(3), the district court
certified that any appeal of that order, accompanied by a judgment, would not be
taken in good faith. Plaintiff still appealed.
3 Plaintiff alleges that (1) prison officials called him a snitch and child
molester, exposing him to prison violence; (2) the prison law librarian prevented
Plaintiff access to forms and other legal materials; (3) if prison staff transfers
Plaintiff to another facility, he will be killed; and (4) other judges have failed to
ensure he obtain access to a wheelchair and ADA showers.
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Because Plaintiff has three strikes, we ordered him to show cause why he
should not be required to pay the filing fee before proceeding with this appeal.
Section 1915(g) precludes IFP for Plaintiff unless he can show he is under imminent
danger of serious physical injury. 28 U.S.C. § 1915(g). In his show-cause response,
Plaintiff alleged the prison staff deprived him of his medically necessary wheelchair.
We deferred ruling on the three-strikes issue, and Plaintiff moved for leave to
proceed IFP. Because the failure to provide a wheelchair could cause imminent
serious physical injury, see Fuller v. Wilcox, 288 F. App’x 509, 511 (10th Cir. 2008)
(unpublished), we GRANT Plaintiff’s motion to proceed on appeal without
prepayment of costs and fees.
But satisfying that exception, alone, does not absolve Plaintiff of his
responsibility to adhere to his filing restrictions. Johnson v. Nunez, No. 21-1108,
2021 WL 2774949, at *2 (10th Cir. July 2, 2021) (unpublished). Nor does it relieve
him of his obligation to provide a rational argument showing why the district court
erred in dismissing his complaint. Id. So because Plaintiff failed to comply with the
filing restrictions, the district court justifiably dismissed his complaint. We therefore
find no abuse of discretion.
FILING RESTRICTIONS
“Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under appropriate circumstances.”
Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Appropriate
circumstances exist when (1) the litigant’s lengthy and abusive history is set forth;
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(2) the court explains what the litigant must do to obtain its permission to file an
action; and (3) the litigant receives notice and an opportunity to oppose the court’s
order before implementation. Id.
We conclude that Plaintiff’s repetitive appeals of dismissals for failure to
comply with district-court filing restrictions warrant filing restrictions in this Court. 4
Therefore, to proceed pro se in this Court in any new civil appeal of a dismissal in
district court for failure to comply with filing restrictions, Plaintiff must provide the
following:
1. A list of all appeals filed involving a suit or claim based on the district court’s
dismissal for failure to comply with filing restrictions; and
2. A notarized affidavit, in proper legal form, which recites the issues he seeks to
present, including a short discussion of the legal basis asserted therefor, and
describing with particularity the order being challenged. The affidavit must
also certify, to the best of his knowledge, that the legal arguments being raised
4 Johnson v. Nunez, No. 21-1108, 2021 WL 2774949, at *1 (10th Cir. July 2,
2021) (concluding Johnson’s failure to comply with the district court’s filing
restrictions justified the district court’s dismissal and reminding him of potential
sanctions); Johnson v. Little, No. 20-1355, 2021 WL 1561337, at *1 (10th Cir. Apr.
21, 2021) (warning Johnson that filing restrictions were imminent because 28 of his
34 appeals dismissed for failure to satisfy filing restrictions).
And the Tenth Circuit dismissed these cases based on procedural termination
without judicial action for failure to pay or failure to respond to a PLRA show-cause
order: Nos. 20-1362, 20-1373, 20-1375, 20-1379, 20-1412, 20-1007, 21-1015, 21-
1021, 21-1022, 21-1024, 21-1037, 21-1039, 21-1042, 21-1045, 21-1046, 21-1053,
21-1054, 21-1056, 21-1058, 21-1059, 21-1063, 21-1064, 21-1082, 21-1140, 21-1138,
21-1171.
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are not frivolous or made in bad faith; that they are warranted by existing law
or a good-faith argument for the extension, modification, or reversal of
existing law; and that he will comply with all appellate and local rules of this
Court.
Plaintiff will submit these filings to the Clerk of the Court, who will review
them for compliance with the above restrictions. The Clerk will dismiss the appeal
for failure to prosecute if Plaintiff does not fully comply with the above restrictions.
If Plaintiff fully complies with the filing restrictions, the Clerk will forward
Plaintiff’s filings to the Chief Judge or his designee to determine whether to permit
Plaintiff’s proposed pro se civil appeal to proceed. If the Chief Judge or his designee
does not grant authorization, the Clerk will dismiss the matter on behalf of the Court.
If the Chief Judge or his designee grants authorization, the Clerk will enter an order
directing that the matter may proceed in accordance with, and that Plaintiff must
comply with, the Federal Rules of Appellate Procedure and the Tenth Circuit Rules.
Plaintiff may, within twenty days from the date of this Order and Judgment,
file written objections, limited to ten pages or fewer, to these proposed restrictions.
Absent further order of the Court upon review of any objections, the restrictions will
take effect thirty days from the date of this Order and Judgment and apply to any
appeal Plaintiff files after that time.
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AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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