Another Pro se suit dismissed by the 10th Cir. under the because-I-said-so doctrine

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by: tiltawhirl

All pro se litigants in the Tenth Circuit and District of Colorado federal court, regardless of their legal acumen and regardless of the merits of their causes of action, may as well wipe their asses and file the soiled pieces of toilet paper with the court, because it would receive the same attention, consideration and analysis as any legal briefs or motions they might file.

This fact was again demonstrated by the dismissal (with prejudice, but for want of jurisdiction -go figure!) of yet another pro se federal case, as affirmed by the Tenth Circuit (and just in time for Fathers’ Day). The Order and judgment, was announced in an unpublished opinion (because it couldn’t have otherwise been possible to release it for citation).^n.1

The decision can only be described as lazy, erodes confidence in our judicial system, and is an affront to anyone, who pays taxes (or has paid a $455 docket fee). The two-and-one-half page opinion was hastily drafted and sent out the very same day that the case had been assigned to the panel on the merits. The gist of the decision was that the plaintiff-appellant has been pursuing custody of his daughter, which does not belong in federal court. Of course, if the judge, who is paid $175K per year (for life), had read even reviewed the complaint, the record (or anything other than the magistrate’s recommendations), he would have known that the case had nothing to do with “custody,” whatever.

Perhaps, one can assume that the judge[s] or clerk[s] responsible for reviewing the case were overwhelmed with the complexity of the arguments and, quite simply, didn’t feel like dealing with it (“dealing with it” means reading the Opening Brief, the Answer Brief or the Reply Brief, which clearly did not happen here).

Alternatively, one may conclude, in light of the defendants named, that the decision is another pro se lawsuit disposition that corroborates Professor Erwin Chemerinsky’s treatise, Closing the Courthouse Doors to Civil Rights Litigants or Benjamin Barton’s thesis, Do Judges Systemically Favor the Interests of the Legal Profession.

Consequently, the opinion, devoid of any analysis of any of the arguments or facts raised by either party, is simply a regurgitation of the magistrate’s recommendations (which themselves bear little relation to the facts of the case and an even more remote relation to the applicable law).

If this was a published opinion affirming the magistrate’s recommendations , it would have set new precedent, including the following:

courts are now once again allowed to engage in exercising hypothetical jurisdiction;

a state entity is no longer required to answer or respond to a request for reasonable accommodation under the Americans with Disabilities Act;

a litigant, who was once a party to a divorce action at one time, may not file a contract or tort claim against any person for any reason, if that person was an opposing party in the divorce action;

Rooker-Feldman may now be used for temporary restraining orders, where the merits of the case had never been “actually decided,”

Rooker-Feldman may now be used to preclude cases brought by state court winners, as well as state court losers;

a divorce case is considered pending for the purposes of the Younger absention doctrine, even if the case has been “suspended” for over two years, thereby putting the litigant out of court;

only a racial animus is a valid bases for claims under 42 U.S. § 1985(3);

a complaint regarding retaliation under the Americans with Disabilities Act is no longer subject to a separate inquiry; and

a pro se litigant, who was once a party to a divorce proceeding, has no right to enforce contract or consumer protection act claims against a child and family investigator, who breached a contract in bad faith.

If this was a published opinion affirming the article III judge’s recommendations, it would have set a new precedent, including:

a case dismissed for lack of jurisdiction may now be dismissed with prejudice;

a judge may characterize the case as frivolous and vexatious (i.e.,rule on the merits of a case) that was just dismissed for want of jurisdiction and; and

under Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636, an article III judge no longer needs to consider the objections to the recommendations of a U.S. magistrate judge.

Because this opinion is so inexplicably erroneous, it not only is an embarrassment to the judge who authored it but, it argues strongly in favor of litigants resorting to “inappropriate” self-help, because pursuing redress in a civil court of law without an attorney is a waste of time and resources, regardless of how well the litigant researched his claims and argued his case and, especially, without regard for any prior “binding” precedents. (Binding precedents do not apply to such cases).

Just last week, the U.S. Supreme Court remanded another case, Erickson v. Pardus, back to the Tenth Circuit for doing essentially the same, as happened here, which is a pattern in this district.^{n. 2}

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^n.1 Judge Alex Kozinski of the Ninth Circuit has described unpublished opinions as “inedible sausage” unfit for human consumption, yet, some litigants are forced to swallow them. “In [Judge Kozinzki’s] words, ‘When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.’ True. But the real problem lies not with the committee but with the faulty sausage itself. If future litigants shouldn’t have to consume the ‘sausage’ of an ill-considered decision, why should the parties to that particular case have to eat it either?” Philip Mann, Esq., Citation To “Non-Precedential” Opinions To Be Permitted. It’s About Time, IP Litigation Blog, Apr. 14, 2006.

^{n. 2} By way of example, since January 1, 2006 (ignoring cases where no objections were filed), Judge Blackburn adopted the recommendations of his magistrate eleven (out of eleven) times regarding a pro se complaint. Shell v. Devries, No. 06-cv-00318 (D.Colo. Jan. 30, 2007); Gallegos v. ACE Express – Coach USA, No. 06-cv-00408 (D.Colo. Jan. 19, 2007); Automated Lending, Inc. v. Ransom, No. 05-cv-02487 (D.Colo. Nov. 30, 2006); Signer v. Pimkova, No. 05-cv-02039 (D.Colo. Nov. 30, 2006); Baldauf v. Garoutte, No. 03-RB-01104 (D.Colo. Jul. 20, 2006); Williams v. United States Forest Service, No. 05-cv-01277 (D.Colo. Jun. 27, 2006); Martin v. Directors Guild of America, No. 06-cv-00609 (D.Colo. May 16, 2006); Baldauf v. Hyatt, No. 01-cv-01315 (D.Colo. Feb. 08, 2006); Calvert v. Safranek, No. 05-cv-001713 (D.Colo. Jan. 30, 2006); Lawton v. Center Stock Company, LLC, No. 06-cv-01125 (D.Colo. Jan. 19, 2006); Stetzel v. Attorney General of the State of Colorado, No. 04-cv-01531 (D.Colo. Jan. 3, 2006). More importantly for purposes of the Due Process Clause, the official record is completely devoid of any evidence that Judge Blackburn ever even read the objections filed by pro se plaintiffs in any of these cases. See also, e.g., Smith v. Tenth Circuit Court of Appeals, No. 04-cv-01222 (D.Colo. Oct. 15, 2004); Gambina v. Hood, 05-cv-00793 (D.Colo. Nov. 2, 2005).keywords = Attorney Regulation Counsel, John Gleason, John S. Gleason, Louise Culberson-Smith, Madeline Wilson, Law Office of Madeline Wilson, Madeline Elizabeth Wilson, Bill Fyfe, Bill J. Fyfe, Dr. Bill Fyfe, William Fyfe, William J. Fyfe, Columbine Counseling Center, Colorado Division of Civil Rights, Colorado Civil Rights Division, Colorado Civil Rights Commission, Mike Wantanabe, Michael Watanabe, Magistrate Watanabe, Michael J. Wantanabe, Edward Nottingham, petty tyrant, Michel Oconnell, Michael W. OConnell, Michael W. O’Connell, Tenth Circuit, District of Colorado, pro se bias, Jefferson County, Robert Evans, Americans with Disabilities Act, ADA, Title II, 1985(3), concealment, minor child, Sheltra v. Smith, Raftery v. Scott, Hall v. Hall-Stradley, unpublished opinions, non-precedential opinions

One thought on “Another Pro se suit dismissed by the 10th Cir. under the because-I-said-so doctrine”

….and can see why the motion was refused. This case was DOA from the outset, despite its obvious merits. The docket shows that it was assigned to a panel on June 7, and the opinion was issued the very same day.

Appellate review in America used to be a respectable affair, with opinions crafted by real judges who actually reviewed the parties’ briefs personally before asking searching questions in oral argument. Today, it more closely resembles a ‘cheap trick’ on East Colfax, with disputes often important enough to determining the course of entire lives decided by fresh-faced kids who got their jobs from the friend of a friend in their second year of law school. Professor Sarah Ricks uncovered this remarkable exchange in a trial transcript:

THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that theyвЂ™re not well reasoned, they donвЂ™t give them much thought. So itвЂ™s hard to say that thatвЂ™s a well-reasoned opinion that has any precedential value.
MR. WINEBRAKE: Well, we concedeвЂ”
THE COURT: ItвЂ™s instructive on what theyвЂ™ll do without much thought.

As lawyers, judges, and commentators know, unpublished opinions are generally unfit to line a birdcage. Judge Alex Kozinski of the Ninth Circuit openly described unpublished opinions as вЂњinedible sausage,вЂќ unfit for human consumption, but yet, defenseless litigants are forced to swallow them. Attorney Philip Mann asks:

In [Judge Kozinzki’s] words, “When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.” True. But the real problem lies not with the committee but with the faulty sausage itself. If future litigants shouldn’t have to consume the “sausage” of an ill-considered decision, why should the parties to that particular case have to eat it either?

Let me call out OhWill, Cuervo, and other court defenders on this one: How can you possibly defend this practice?

Another Pro se suit dismissed by the 10th Cir. under the because-I-said-so doctrine

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Another Pro se suit dismissed by the 10th Cir. under the because-I-said-so doctrine

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