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noting that, under the local rules, a party to litigation enters an appearance by filing a pleading
Summary of this case from Nishiyachi v. Citibank, N.A. (In re Nishiyachi)Opinion
Civil Action No. 13-cv-00100-BNB
02-25-2013
JOVAN G. MCGLOTHIN, Plaintiff, v. DAN OATES, JEFFERY LONGNECKER, and BARRY MARTIN, Defendants.
ORDER OF DISMISSAL
Plaintiff, Jovan G. McGlothin, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. He initiated this action by filing pro se on January 16, 2013, a Prisoner Complaint (ECF No. 1) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). On January 18, 2013, Magistrate Judge Boyd N. Boland granted Mr. McGlothin leave to proceed in forma pauperis pursuant to § 1915.
On January 22, 2013, Magistrate Judge Boland entered an order (ECF No. 5) noting that Mr. McGlothin appeared to have initiated two similar 42 U.S.C. § 1983 cases. At that time, Mr. McGlothin was proceeding in this action pro se. In McGlothin v. Martin, 13-cv-00078-RBJ (D. Colo. filed Jan. 14, 2013), Mr. McGlothin was represented by counsel. The January 22 order directed Mr. McGlothin to show cause within thirty days why the instant action should not be dismissed as repetitive of No. 13-cv-00078-RBJ.
The January 22 order noted that "the court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record." Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir.2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001); see also Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972). The order also warned Mr. McGlothin that repetitious litigation of virtually identical causes of action may be dismissed as frivolous or malicious. See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (per curiam); see Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975) (per curiam).
On February 21, 2013, Mr. McGlothin's attorney in No. 13-cv-00078-RBJ entered his appearance pursuant to D.C.COLO.LCivR 11.1A. in the instant action by filing Mr. McGlothlin's response (ECF No. 10) to the order to show cause. Counsel confirms there is no need to proceed with both cases, and asks that they be consolidated. He also asks that the $35.00 Mr. McGlothin has paid towards the $350.00 filing fee be refunded, if possible, and that no further fees be charged in the instant action because Mr. McGlothin has paid the $350.00 filing fee in No. 13-cv-00078-RBJ. Finally, he clarifies that the correct spelling of Mr. McGlothin's surname. The caption to this order has been corrected to reflect the correct spelling.
The requests to consolidate and refund and suspend the partial filing fee payments in this action will be denied. The fact that Mr. McGlothin is represented in No. 13-cv-00078-RBJ, initiated in this Court on January 14, 2013, through counsel, is even more reason why Mr. McGlothin should not have initiated the instant action pro se on January 16, 2013, two days later. Counsel apparently did not learn of the instant action until Magistrate Judge Boland ordered that counsel be emailed a copy of the show-cause order (ECF No. 5 at 2) and Mr. McGlothin asked him to represent him in the instant action. The order granting Mr. McGlothin leave to proceed in forma pauperis pursuant to § 1915 (ECF No. 4) noted the partial payment plan to which Mr. McGlothin had consented. The Court will not vacate the order granting leave to proceed pursuant to § 1915. The instant action will be dismissed as frivolous because it is repetitive of No. 13-cv-00078-RBJ.
Mr. McGlothin is cautioned that his ability to file a civil action or appeal in federal court in forma pauperis pursuant to § 1915 may be barred if he has three or more actions or appeals in any federal court that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). Under § 1915(g), the Court may count dismissals entered prior to the enactment of this statute. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. McGlothin files a notice of appeal he also must pay the full $455.00 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.
Accordingly, it is
ORDERED that the requests in the response (ECF No. 10) to order to show cause to consolidate this action with McGlothin v. Martin, 13-cv-00078-RBJ (D. Colo. filed Jan. 14, 2013), and refund and suspend the partial filing fee payments in this action are denied. It is
FURTHER ORDERED that the instant action is dismissed as frivolous because it is repetitive of No. 13-cv-00078-RBJ. It is
FURTHER ORDERED that the clerk of the Court correct the Court's docketing records to reflect the correct spelling of Mr. McGlothin's name, i.e., Jovan McGlothin, as indicated in the caption to this order. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 25th day of February, 2013.
BY THE COURT:
____________________
LEWIS T. BABCOCK, Senior Judge
United States District Judge