In Re Keith Thomas ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: KEITH THOMAS,  No. 01-80091
Respondent. D.C. No.
 CV-07-1028-LKK
Eastern California
 ORDER
Filed November 29, 2007
Before: Betty B. Fletcher, Marsha S. Berzon and
Sandra S. Ikuta, Circuit Judges.
ORDER
PER CURIAM:
Respondent Keith Thomas has been a frequent and vexa-
tious litigant in this court for at least seven years.1 In 2001, we
entered a pre-filing review order precluding Thomas from fil-
ing new appeals or petitions in this court unless Thomas is
appearing through counsel, the district court has certified that
Thomas’s appeal is taken in good faith, or we have deter-
mined the appeal or petition has sufficient merit to proceed.2
1
Before we entered a pre-filing review order, Thomas had filed 17
appeals and petitions with this court in less than two years, all of which
were eventually denied, affirmed or dismissed as completely without merit
or lacking in appellate jurisdiction.
2
Since the pre-filing review order was entered on July 18, 2001,
Thomas has attempted to file no fewer than 28 new appeals and petitions,
all of which have been rejected by this court pursuant to the pre-filing
review order as lacking sufficient merit and/or lacking in jurisdiction. In
addition, he has filed more than 69 separate civil actions in the Eastern
District of California alone.
15295
15296 IN RE: THOMAS
Because our decisions pursuant to a pre-filing review order
are rarely published, we have not yet clarified the standard for
determining whether an appeal or petition has sufficient merit
to proceed. We take the opportunity to do so now. In address-
ing this issue, we are guided by prior decisions setting stan-
dards for disposing of cases on a summary basis.
In United States v. Hooton, we permitted summary affir-
mance of a final judgment in a nonemergency situation only
where “it is manifest that the questions on which the decision
of the cause depends are so unsubstantial as not to need fur-
ther argument.” 693 F.2d 857, 858 (9th Cir. 1982) (citations
omitted). Such summary affirmances “should be confined to
appeals obviously controlled by precedent and cases in which
the insubstantiality [of the appeal] is manifest from the face
of appellant’s brief.” Id. Similarly, in Franklin v. Murphy we
indicated that a court could dismiss an in forma pauperis
action as frivolous before service of process when the com-
plaint recites “bare legal conclusions with no suggestion of
supporting facts, or postulating events and circumstances of a
wholly fanciful kind,” or when the complaint recites facts that
conflict with facts of which the district court may take judicial
notice. 745 F.2d 1221, 1228 (9th Cir. 1984) (quoting Crisafi
v. Holland, 655 F.2d 1305, 1307-08 (D.C. Cir. 1981) (per
curiam)).
Like summarily affirming a final judgment on appeal or
dismissing a frivolous complaint, precluding an appellant
from proceeding with a petition or appeal pursuant to a pre-
filing order restricts access to court, and therefore “must be
based on adequate justification supported in the record and
narrowly tailored to address the abuse perceived.” De Long v.
Hennessey, 912 F.2d 1144, 1149 (9th Cir.), cert. denied, 498
U.S. 1001 (1990). Accordingly, we hold that when we have
imposed prefiling requirements, we can preclude an appellant
from proceeding with a petition or appeal only when it is clear
from the face of the appellant’s pleadings that: (i) the appeal
is patently insubstantial or clearly controlled by well settled
IN RE: THOMAS 15297
precedent; or (ii) the facts presented are fanciful or in conflict
with facts of which the court may take judicial notice. See
Franklin v. Murphy, 745 F. 2d at 1228; United States v. Hoo-
ton, 693 F.2d at 858.
In this case, Thomas seeks to appeal a magistrate judge’s
order recommending dismissal of one of Thomas’s most
recent actions. Thomas’s complaint indicates that he is bring-
ing this action against four district court judges to challenge
the judges’ rulings in prior actions filed by Thomas. Under
well-settled precedent, Thomas may challenge those prior rul-
ings only via appeal, not by suing the judges. See, e.g.,
Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Because the
appeal before us is clearly controlled by existing precedent
and the insubstantiality of the appeal is manifest from the face
of Thomas’s pleadings, we hold that the appeal lacks suffi-
cient merit to proceed.
A certified copy of this order served on the district court for
the Eastern District of California shall constitute the mandate
of this court.
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