Opinion
Civil Action No. 22-cv-00229-GPG
2022-01-28
Jabari J. JOHNSON, Plaintiff, v. Phillip WIESER, et al., Defendants.
Jabari J. Johnson, Canon City, CO, Pro Se.
Jabari J. Johnson, Canon City, CO, Pro Se.
ORDER DISMISSING CASE
CHRISTINE M. ARGUELLO, United States District Judge
Plaintiff Jabari J. Johnson is in the custody of the Colorado Department of Corrections at the Colorado State Penitentiary in Cañon City, Colorado. Plaintiff initiated this action pro se in the United States District Court for the District of Maryland by filing a partially completed copy of the District of Colorado's form Prisoner Complaint. (ECF No. 1). The District of Maryland transferred the case to this Court pursuant to 28 U.S.C. §§ 85, 1391(b) and 1406(a), because venue properly lies in the District of Colorado. (See ECF No. 2).
This Court, however, has imposed filing restrictions against Plaintiff based on his abusive litigation. The filing restrictions are as follows:
(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. Hawkins, et al., No. 19-cv-03730-LTB, ECF No. 3 at 10-11 (D. Colo. Mar. 4, 2020).
Nothing in Plaintiff's complaint suggests a basis for having filed this lawsuit in the District of Maryland. All named defendants reside in the District of Colorado and all the events alleged in the complaint occurred in Colorado. At least one federal court has explained to Plaintiff—on three prior occasions—that venue properly lies in the District of Colorado when all the allegations and defendants are in Colorado. Johnson v. Gentzler, et al. , No. 22-cv-00048-LTB, ECF No. 3 at 1. The District of Colorado was clearly the proper venue for filing this action; the District of Maryland clearly was not. As such, the Court finds that Plaintiff initiated this lawsuit in the District of Colorado as a bad faith attempt to circumvent the filing restrictions imposed by this Court. Glendora v. Sellers , 57 F. App'x 378, 380 (10th Cir. 2003) (where the plaintiff files a lawsuit in a district that "has no relation to any of the claims or parties, [it] can only be characterized as abusive conduct" warranting filing restrictions).
Despite Plaintiff's attempt to avoid the filing restrictions imposed by this Court, they still apply. But Plaintiff has not complied with his filing restrictions. Plaintiff has failed to attest in any format, with or without notarization, that "the lawsuit is not interposed for any improper purpose to harass or cause unnecessary delay, and that the filing complies with [the Court's] 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." Plaintiff has also failed either to pay the $402 filing fee or, in the alternative, submit a court-approved form requesting leave to proceed pursuant to 28 U.S.C. § 1915 with an attached certified account statement to the § 1915 motion for the six months immediately preceding the filing of this action. Nor has Plaintiff properly completed the complaint form.
Accordingly, it is
ORDERED that the Clerk of Court is directed to terminate this case and close the action because Plaintiff has failed to comply with the sanction order entered in Johnson v. Hawkins, et al., No. 19-cv-03730-LTB, ECF No. 10 (D. Colo. Mar. 4, 2020). It is FURTHER ORDERED that pursuant to 28 U.S.C. § 1915(a)(3) any appeal from this order is not taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal. See Coppedge v. United States , 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). If Plaintiff files a notice of appeal, he must pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.