Opinion
Case No. 02-1137-WEB
February 27, 2003.
ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING CASE, AND IMPOSING FILING RESTRICTIONS
REPORT AND RECOMMENDATION
Now before the Court is the Report and Recommendation of Magistrate Judge Karen M. Humphreys, dated September 6, 2002 (Doc. 13). In her Report and Recommendation, Magistrate Judge Humphreys recommends that the Court grant the motion to dismiss filed by Westar Energy/Kansas Gas Service (Doc. 9). The Plaintiffs filed a "Motion for Reconsideration" regarding the Report and Recommendation on September 10, 2002 (Doc. 15), but this was considered and properly denied by Magistrate Humphreys in a Memorandum and Order dated January 29, 2003 (Doc. 27).
The motion to dismiss was made jointly by Western Resources, Inc. and Kansas Gas Service, a division of ONEOK, Inc.
The Court now considers the Report and Recommendation and determines that it is based on an suitable review of the record and a sound application of the law. The motion to dismiss should be granted because the Court lacks subject matter jurisdiction. There is neither complete diversity nor federal question jurisdiction.
• FILING RESTRICTIONS
In her Report and Recommendation, Magistrate Judge Humphreys also noted that Plaintiff Jay Dee Portley is a "frequent and persistent pro se litigator. . . ." The course of the litigation after the filing of the Report and Recommendation bears this out. The Plaintiffs next filed a lengthy motion to amend and amended complaint, in which they repeated their requests for class certification (with themselves as class representatives and pro se litigators), in order to pursue civil rights and antitrust violations (Doc. 14). This time, however, the Plaintiffs sought to establish federal question jurisdiction by adding a state actor, the Kansas Corporation Commission (KCC). When the KCC moved for dismissal, Plaintiffs moved to strike the KCC's filing (Doc. 22). Without waiting for a ruling on their first motion to amend, Plaintiffs again moved to amend and filed a second amended complaint (Doc. 24), which failed to remedy the flaws just described. These motions were all denied in the Memorandum and Order dated January 29, 2003, where Magistrate Judge Humphreys correctly described the Plaintiffs' citations to law as "misguided" and "mechanical" attempts to establish federal question jurisdiction. Magistrate Judge Humphreys also found that the Plaintiffs had failed to state a cause of action, but instead had proffered only a "sham basis for litigating in federal court. . . ." The Court, having reviewed the Plaintiffs' pleadings, agrees with this assessment.
The Court has concluded that its consideration of these repeated and meritless pleadings are an unacceptable waste of judicial time and resources. This is not the first case in which the Plaintiffs, particularly Jay Dee Portley, Jr., have so occupied the Court's attention. Mr. Portley filed 12 cases in the District of Kansas prior to the instant case: 93-3232, 93-3249, 93-3375, 93-3482, 94-3496, 95-3017, 97-1281, 98-1424, 00-1100, 00-1275, 00-1470, 01-1114. All have been pro se, and all have been dismissed.
In 98-1424, Portley v. City of Wichita, a licenced attorney entered an appearance after the case had been filed, and the case was later dismissed on plaintiff's motion.
Mr. Portley's mother, Cleo P. Portley, has also appeared in two of the prior cases, 00-1100, 00-1275, as well as in the instant case. Although Mrs. Portley's pro se appearances have not been as numerous, she nevertheless shows an similar willingness to pursue pointless and wasteful litigation. In 00-1100, the Plaintiffs attempted to bring a class action against various lawyers based on alleged violations of the Plaintiffs' civil rights. Facing motions to dismiss for lack of subject matter jurisdiction, the Plaintiffs voluntarily dismissed their case. They then re-filed in 00-1275, this time naming, in addition to the lawyers previously identified, the State of Kansas, the Attorney General of the State of Kansas (in both her individual and official capacities), the Eighteenth Judicial District, and the Sedgwick County District Judges, (several of whom in both their individual and official capacities). This pattern of filing sham civil rights actions against private entities, then adding public or quasi-public entities in an attempt to establish state action, is common in Mr. Portley's lawsuits, including of course the instant action.
Most recently, Mr. Portley has filed Portley v. City of Wichita, et al., 03-1040-WEB, and has moved for leave to proceed in forma pauperis. The complaint and amended complaint are vague and often incoherent. Construed liberally, Mr. Portley's driver's license has been suspended, and he protests the required reinstatement fee. He claims his civil rights have been violated in municipal court, and he seeks an injunctive and declaratory relief against the City of Wichita and the Attorney General of the State of Kansas, and monetary damages in excess of $75,000.00 against the City, the Attorney General, and the law firm of Palmer, Leatherman White, LLP. For the reasons set out in the Court's order in 003-1040-WEB, the Court is denying the motion to proceed in forma pauperis and dismissing that case.
Based on this long string of vexatious litigation, the Court has concluded that it cannot continue to accept filings from the Plaintiffs without assurances that the pleadings are based on actual fact and applicable law. "The `right of access to the courts is neither absolute nor unconditional,'" and there is no constitutional right of access to the courts to prosecute an action which is abusive, frivolous, or malicious. Schlicher v. Thomas, 111 F.3d 777, 781 (10th Cir. 1997) (quoting Winslow v. Hunter, 17 F.3d 314, 315 (10th Cir. 1994) (further citation omitted). An action is frivolous when it lacks an arguable basis in either fact or law. Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995). As both the instant case and the Plaintiffs' other litigation establishes, the actions they have pursued in the Federal District Kansas are abusive and frivolous.
The Court may impose filing restrictions on the Plaintiffs so long as the Court informs the Plaintiffs of what they must do to obtain court permission to file, and so long as the Plaintiffs are given notice and an opportunity to respond to the restrictive order. See Werner v. State of Utah, 32 F.3d 1446, 1447-48 (10th Cir. 1994). The restrictions set out below are imposed under the Court's inherent power to enter orders "necessary or appropriate" in aid of its jurisdiction, whether or not Plaintiffs pay a full filing fee. 28 U.S.C. § 1651(a); see Howard v. Mail-Well Envelope Co., 150 F.3d 1227, 1232 (10th Cir. 1998); Schlicher, 111 F.3d at 781.
IT IS THEREFORE ORDERED that the Report and Recommendation (Doc. 13) be and hereby is adopted by the Court, and that the motion to dismiss of Westar Energy/Kansas Gas Service (Doc. 9) be and hereby is GRANTED. The case is DISMISSED.
IT IS FURTHER ORDERED that the Plaintiffs are enjoined from proceeding or filing any further matters in this Court either individually or jointly without the representation of a licensed attorney admitted to practice in this Court, unless they first obtain leave to proceed pro se. To obtain such leave, the Plaintiffs must take all of the following steps:
• File a petition with the clerk of the court requesting leave to file a pro se complaint or other pleading (with the exception of a notice of appeal);
• Include in the petition the following information:
• A copy of the proposed pro se complaint or other pleading;
b. A list, by case name, number, and citation where applicable, of all lawsuits or other matters currently pending or filed previously with this Court by each of the Plaintiffs who petition for leave to proceed. The list must include a statement of the involvement in such prior proceedings by each of the Plaintiffs who petition for leave to proceed, and a description of the current status or disposition of such proceedings;
• A list of all outstanding injunctions or orders applicable to each of the Plaintiffs who petition for leave to proceed which limit access to federal, state, or municipal court, including the name, number, and citation, if applicable, of all such orders or injunctions;
• File with the clerk, at the same time as the petition, a notarized affidavit in proper legal form certifying that the legal arguments being raised are not frivolous or made in bad faith, that they are warranted by the existing law or a good faith argument for the extension, modification or reversal of existing law, that the filing is not for any improper purpose, and that each of the Plaintiffs who petition for leave to proceed will comply with all applicable federal rules of civil and appellate procedure, as well as the rules of this Court and the U.S. Court of Appeals for the Tenth Circuit.
These documents shall be submitted to the clerk of the court, who shall forward them to the undersigned or another judge of this Court for a determination whether the complaint or pleading is lacking in merit, duplicative, frivolous, or abusive. The Court will either permit the filing of the complaint or pleading, or the Court will issue a minute order denying the petition.
Failure to follow these procedures will result in rejection of any future pro se complaint or other pleading the Plaintiffs, either individually or jointly, attempt to file in this Court.
Plaintiffs shall have 30 days from the date of this order to file written objections, limited to fifteen pages. If no objections are filed, the restrictions shall take effect 30 days from the date of this order, and shall apply to any matter filed on or after that date. If objections are filed, the restrictions shall not take effect until after this Court has ruled on the objections.
SO ORDERED.