Greene v. First to Serve ( 2022 )

Appellate Case: 21-1246 Document: 010110642973 Date Filed: 02/09/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 9, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
CEDRIC GREENE,
Plaintiff - Appellant,
v. No. 21-1246
(D.C. No. 1:21-CV-01611-LTB)
FIRST TO SERVE INC., (D. Colo.)
Defendant - Appellee.
–––––––––––––––––––––––––––––––––––
CEDRIC GREENE,
Plaintiff - Appellant,
v. No. 21-1278
(D.C. No. 1:21-CV-01922-LTB)
7-ELEVEN, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
these appeals. 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Appellate Case: 21-1246 Document: 010110642973 Date Filed: 02/09/2022 Page: 2
Cedric Greene initiated the underlying cases by filing two pro se pleadings in the
district court without complying with filing restrictions the district court had previously
imposed upon Greene. The district court dismissed the actions because of his failure to
comply with the filing restrictions, and Greene appealed. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm. We also expand the filing restrictions that we previously
imposed upon Greene, subject to any objections he may file within ten days from the date
of this decision.
I
Greene is a California resident who is under filing restrictions in this and
numerous other courts due to his prolific and abusive litigation history. See, e.g., Greene
v. Sprint Nextel Corp., 750 F. App’x 661, 666-67 & nn. 2, 3 (10th Cir. 2018) (describing
Greene’s lengthy history of “duplicative, abusive, and frivolous litigation” that resulted in
the imposition of filing restrictions in this court, the Ninth Circuit, and the United States
District Courts for the Districts of Kansas and Utah, as well as other federal district courts
in California and Nevada). In 2019, the United States District Court for the District of
Colorado became yet another court to impose filing restrictions upon Greene, noting he
had filed some nine other actions, many of which were dismissed for improper venue,
lack of jurisdiction, or both. See Order Dismissing Action & Imposing Filing
Restrictions at 5-6, Greene v. Off. of Comptroller, No. 19-CV-821 (D. Colo. June 13,
2019), ECF No. 10. Although Greene appealed that decision, he did not challenge the
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district court’s filing restrictions, and we affirmed. See Greene v. Off. of Comptroller,
776 F. App’x 983, 984 (10th Cir. Sept. 13, 2019).
Without complying with the district court’s restrictions, Greene attempted to file
the two pro se actions underlying these appeals. In the case underlying No. 21-1246, he
filed a “Motion and Request to Lift Filing Sanctions and Request to Initiate a Pro Se Civil
Filing.” R. at 3. Although his pleading is largely unintelligible, he purported to name
First to Serve Inc., as a defendant and suggested venue was proper in Colorado, not in
California. And in the case underlying No. 21-1278, Greene filed an “Application for an
Order to Lift Filing Requirements for Civil Processing Purposes and Judicial Notice
Request.” R. at 3. This pleading purported to name 7-Eleven as a defendant and was
similarly unintelligible, although it appears to have requested that the district court take
judicial notice of evidence demonstrating that venue was proper in Colorado. The district
court dismissed both cases for failure to comply with its filing restrictions, which the
court refused to lift, and Greene appealed.
II
We review the district court’s dismissal for abuse of discretion. See Gripe v. City
of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (reviewing sanction of dismissal for failure
to follow court order and rules for abuse of discretion). There was no abuse of discretion
here. The district court’s filing restrictions required Greene to file a proposed pleading
and seek leave to proceed pro se; he was also required to provide the district court clerk
with: A) a list of all his pending and previous lawsuits filed in the District of Colorado
and the status of all such lawsuits; B) a statement of the issues and whether they had been
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previously raised; and C) a notarized affidavit certifying that his arguments were not
frivolous or made in bad faith, that they were warranted by the law or a good-faith
argument for alteration of the law, that venue was proper, that the action was not brought
for any improper purpose, and that he would comply with all applicable court rules. See
Order Dismissing Action & Imposing Filing Restrictions at 6-7, Off. of Comptroller,
No. 19-CV-821. Greene did not comply with these requirements.
Nonetheless, Greene asks that we “exonerate” him from the district court’s filing
restrictions. See No. 21-1246, Aplt. Br. at 3; see also No. 21-1278, Aplt. Br. at 2. But if
he wished to challenge the district court’s filing restrictions, he was required to challenge
them in his appeal of the order that imposed them. See Werner v. Utah, 32 F.3d 1446,
1448 (10th Cir. 1994) (per curiam) (“[I]f petitioner disagrees with the district court’s
filing restrictions, his avenue for review is an appeal from the order establishing the
restrictions.”). He did not. See Off. of Comptroller, 776 F. App’x at 984. And he may
not collaterally challenge them now in this appeal. See Stine v. Fed. Bureau of Prisons,
506 F. App’x 846, 848 (10th Cir. 2013) (“[T]o the extent Plaintiff is challenging the
terms or scope of the filing restrictions, he cannot collaterally attack those restrictions in
this proceeding . . . .”). We therefore affirm the district court’s dismissal of Greene’s two
actions for failing to comply with that court’s filing restrictions.
III
FILING RESTRICTIONS
We next expand the filing restrictions that we previously imposed upon Greene.
“Federal courts have the inherent power to regulate the activities of abusive litigants by
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imposing carefully tailored restrictions under appropriate circumstances.” Ysais v.
Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Filing restrictions “are appropriate
where the litigant’s lengthy and abusive history is set forth; the court provides guidelines
as to what the litigant may do to obtain its permission to file an action; and the litigant
receives notice and an opportunity to oppose the court’s order before it is implemented.”
Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007).
When we imposed our current filing restrictions, we observed that “[t]his court
and numerous district courts repeatedly [had] explained [to Greene] the jurisdictional and
venue requirements to file a claim in a given federal court,” but “Greene . . . repeatedly
ignored these explanations and simply reasserted the same meritless claims in another
federal district.” Sprint Nextel Corp., 750 F. App’x at 665-66. We had also previously
cautioned Greene that his abuse of the appellate process could lead to filing restrictions.
Id. at 666. We therefore enjoined him from filing further appeals raising issues similar to
those he raised in ten particular appeals, all of which unsuccessfully challenged the
district court’s dismissals for lack of jurisdiction, improper venue, or failure to state a
claim, see id. at 663-66; we also enjoined him from filing appeals asserting that either the
district court or this court should waive subject matter jurisdiction, see id. at 666-67.
Since we imposed appellate filing restrictions, Greene has filed twenty-eight
appeals in this court, eight of which are still pending, including the two presently before
us. Of the twenty appeals that have been adjudicated, eleven fell within the scope of our
filing restrictions and were dismissed accordingly. See Greene v. Hous. Auth. of
Los Angeles, No. 19-1365 (10th Cir. Oct. 22, 2019); Greene v. Pac. Shore Prop. Mgmt.,
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Nos. 19-1473, 19-1474 (10th Cir. Jan. 14, 2020); Greene v. Delgado, No. 19-1485
(10th Cir. Jan. 16, 2020); Greene v. Off. of the Comptroller, No. 20-1015 (10th Cir.
Jan. 31, 2020); Greene v. J.P. Morgan Chase, Nat’l Ass’n., No. 20-1072 (10th Cir.
Mar. 13, 2020); Greene v. Direct TV Inc., No. 20-1098 (10th Cir. Apr. 21, 2020); Greene
v. Access Servs., Inc., No. 19-1447 (10th Cir. June 5, 2020); Greene v. U.S. Dep’t of
Hous. & Urban Dev., No. 20-1212 (10th Cir. July 7, 2020); Greene v. No Named
Defendants, No. 21-1226 (10th Cir. July 1, 2021); Greene v. Los Angeles Cnty. Metro.
Transp. Auth., No. 21-1369 (10th Cir. Nov. 4, 2021). In the rest of Greene’s appeals, we
either affirmed the district court’s dismissal, see Greene v. Off. of the Comptroller,
776 F. App’x at 984; Greene v. U.S. Postal Serv., 795 F. App’x 581, 584 (10th Cir.
2019); Greene v. Denver Cnty. Ct., Nos. 21-1051, 21-1070, 21-1245, 2021 WL 4272901,
at *2 (10th Cir. Sept. 21, 2021), or dismissed the appeals for lack of prosecution, see
Greene v. Comm’r, No. 19-1189 (10th Cir. Nov. 5, 2019); Greene v. Harris, No. 19-1403
(10th Cir. Sept. 3, 2020); Greene v. Comm’r, No. 19-1467 (10th Cir. Nov. 19, 2020), or
lack of jurisdiction, see Greene v. Gomez, No. 19-1097 (10th Cir. Apr. 4, 2019).
The underlying cases here represent a new category of non-meritorious appeals in
which Greene made no effort to comply with the district court’s filing restrictions, the
district court dismissed based on his noncompliance, and Greene appealed, attempting to
circumvent the district court’s filing restrictions without having challenged them when
they were imposed. Greene took a similar course in several of his other appeals. See
Denver Cnty. Ct., 2021 WL 4272901, at *1-2. And while we offer no opinion on his
pending appeals, we note some of them appear to fall in this category because Greene
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appeals from either a dismissal for noncompliance or from an order denying his motions
to reopen or reconsider the dismissal order. See Greene v. CVS, Inc., No. 21-1366;
Greene v. Frontier Airlines, No. 21-1395; Greene v. Charter Spectrum, No. 21-1447.
Further, Greene’s appeals have involved a host of different defendants, including
individuals, private companies, and government entities, but none have been successful
and many were frivolous. Moreover, notwithstanding the breadth of defendants named
and the subject matter implicated, Greene has also persisted in prosecuting repetitive or
duplicative litigation despite our prior admonishments. See, e.g., Greene v. U.S. Postal
Serv., 795 F. App’x 581, 584 & n.3, No. 19-1305 (10th Cir. Nov. 27, 2019) (recognizing
“we’ve previously dismissed a virtually identical suit, Greene v. U.S. Postal Serv.,
745 F. App’x 299 (10th Cir. 2018),” which involved the same subject matter as another
suit Greene brought in the Western District of Washington, which was also dismissed, as
was the appeal from that decision to the Ninth Circuit). These abusive tactics have
consumed our limited judicial resources and precipitated our repeated warnings that we
would impose further filing restrictions upon Greene, see Denver Cnty. Ct., 2021 WL
4272901, at *2. But he has been undeterred. Given the sheer breadth, quantity, and lack
of merit to Greene’s appeals, coupled with his complete disregard for the district court
and this court’s filing restrictions, additional filing restrictions are warranted. See
Ketchem v. Cruz, 961 F.2d 916, 921 (10th Cir. 1992) (approving filing restrictions against
a pro se litigant and recognizing “that a pattern of . . . groundless and vexatious litigation
will justify . . . enjoining him from filing any claims without first seeking prior leave of
court” (internal quotation marks omitted)).
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Accordingly, we enjoin Greene from filing further pro se civil appeals in this court
unless he first obtains permission to proceed pro se. See Werner, 32 F.3d at 1449(enjoining pro se matters in this court without prior leave of court); Winslow v. Hunter
(In re Winslow), 17 F.3d 314, 316 (10th Cir. 1994) (per curiam) (enjoining pro se appeals
and original proceedings without prior leave of court). If Greene wishes to initiate a civil
appeal in this court, he must either be represented by a licensed attorney admitted to
practice in this court or obtain permission to proceed pro se by taking the following steps:
1. File a petition with the Clerk requesting leave to proceed pro se;
2. Include with his petition a list of all civil appeals pending or previously filed in
this court, including the name and number of each appeal and its current status
or disposition;
3. File with the Clerk a notarized affidavit, in proper legal form, that 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 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; that the proposed matter is not
interposed for any improper purpose, such as delay or to needlessly increase
the cost of litigation; that the claims he wishes to present have never been
raised by him except in the district court in the present case, nor finally
disposed of by any federal or state court; and that he will comply with all
appellate and local rules of this court.
Greene shall 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 Greene does not fully comply with the above restrictions.
If Greene fully complies with the filing restrictions, the Clerk will forward his filings
to the Chief Judge or his designee to determine whether to permit Greene’s proposed
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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 Greene must comply with, the
Federal Rules of Appellate Procedure and the Tenth Circuit Rules.
Greene shall have ten days from the date of this order and judgment to file
written objections, limited to fifteen pages, to these proposed filing restrictions.
Unless this court orders otherwise upon review of any objections, the restrictions
shall take effect twenty days from the date of this order and judgment and shall apply
to any appeal filed by Greene after that time.
IV
Finally, Greene seeks leave to proceed on appeal without prepayment of the
necessary filing fees. To proceed on appeal without prepayment, Greene “must show
a financial inability to pay the required filing fees, as well as the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues raised.”
Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). Greene’s appeals
are frivolous, and we deny his motions to proceed without prepayment of the
requisite filing fees.
V
The district court’s judgments are affirmed. The foregoing proposed filing
restrictions are imposed subject to any objections Greene might file within the
specified time. Greene’s motions to proceed without prepayment of the filing fees
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are denied. Greene’s request to be “exonerate[d]” from filing restrictions in this
court, No. 21-1246, Aplt. Br. at 3, is denied as well.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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