United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion to Vacate and/or Set
Aside the Order and Judgment and to Reopen the Case [Doc. No.
109]. In his Motion, Plaintiff seeks to vacate (1) the
Court's Order adopting the Magistrate Judge's Report
and Recommendation, which dismissed Plaintiff's Complaint
for failure to state a claim and exhaust administrative
remedies [Doc. No. 51]; (2) the Court's Order striking
Plaintiff's Amended Complaint [Doc. No. 103]; and (3) the
Court's Order denying Plaintiff's Motion to Vacate
and Set Aside the Prior Judgment Nunc Pro Tunc and other
various motions [Doc. No. 108]. As stated in his Motion,
Plaintiff asserts the requested relief should be granted
on the grounds of mistake, inadvertence, surprise, the Court
lacked jurisdiction of the subject matter and acted in a
manner inconsistent with due process rendering the judgment
void and an extraordinary circumstance, because the District
Court violated the law, court rules and the provisions of the
Code of Judicial Conduct[.]
Mot. at 1-2. For the reasons stated below, the Court finds
Plaintiff's Motion should be denied.
a state prisoner appearing pro se, brought the present action
against numerous defendants, mostly prison officials,
alleging violations of his constitutional rights during his
confinement. The matter was referred to United States
Magistrate Judge Charles B. Goodwin for initial proceedings.
Upon conducting an initial review of the Complaint and
accompanying exhibits,  Judge Goodwin found and recommended
that all claims be dismissed as (1) barred by the Court's
disposition of Plaintiff's previous lawsuit, and/or (2)
failing to state a claim upon which relief may be granted,
and/or (3) barred by Eleventh Amendment immunity, or (4)
barred due to lack of exhaustion under the Prison Litigation
Reform Act of 1995 (“PLRA”) as codified in
pertinent part at 42 U.S.C. § 1997e(a). See
generally Report and Recommendation
(“R&R”) [Doc. No. 48]. The Court overruled
Plaintiff's objections, adopted the R&R in its
entirety, and assessed another “strike” against
Plaintiff [Doc. No. 51, 52].
filed a Motion to Alter or Amend Judgment, which was denied
[Doc. Nos. 58, 60]. The Tenth Circuit dismissed his
subsequent appeal as frivolous and assessed another strike
against Plaintiff, which resulted in Plaintiff accruing four
strikes in total (the Tenth Circuit had assessed a third
strike in response to a related appeal). Accordingly, the
court found Plaintiff could not proceed without prepayment of
fees in any future civil action or appeal unless he was under
imminent danger of serious physical injury [Doc. Nos. 80-82].
Shortly after his appeal was submitted, Plaintiff filed a
Motion for Relief from Judgment [Doc. No. 77] in which he
requested that the aforementioned Order and Judgment
dismissing his Complaint be set aside. That motion was denied
[Doc. No. 92]. Plaintiff's Motion for Reconsideration was
denied as well [Doc. No. 96].
18, 2017, Plaintiff filed an Amended Complaint [Doc. No. 97].
The Amended Complaint was stricken, however, as Judgment had
been entered and Plaintiff failed to show any reason that
warranted having the Judgment vacated or set aside [Doc. No.
103]. The Tenth Circuit has repeatedly cited the general rule
that once judgment has been entered, the filing of an amended
complaint is not permissible until the judgment is set aside
or vacated. See, e.g., Brannon v. Boatmen's First
Nat. Bank of Okla., 153 F.3d 1144, 1150 (10th Cir. 1998)
(affirming denial of leave to amend, noting plaintiffs
neither sought leave to amend prior to entry of judgment, nor
sought to amend judgment or have it vacated pursuant to
either Rule 59(e) or 60(b)). Plaintiff then filed a Motion to
Vacate and Set Aside the Prior Judgment Nunc Pro Tunc and a
Motion for Leave to File Amended Complaint [Doc. Nos.
105-106]. The Court denied these motions as untimely and
repetitive of arguments previously raised [Doc. No. 108].
Plaintiff has now filed another Motion to Vacate and/or Set
Aside the Order and Judgment and to Reopen the Case [Doc. No.
109]; another Motion for Leave to File an Amended Complaint
[Doc. No. 110]; two notices of his intent to seek recusal of
the undersigned [Doc. Nos. 111, 112]; a Motion for Leave of
the Court to File an Objection Exceeding the Page Limits
[Doc. No. 113]; a document entitled “Written
Objections to the District Court's Order” [Doc. No.
114]; and an “Affidavit of Paul Pemberton for Bias or
Prejudice of Judge” [Doc. No. 115].
previously stated throughout these proceedings,
Plaintiff's Motion, as before, fails to provide the Court
with any justification to vacate or set aside the Judgment
entered in this case. Plaintiff's Motion is needlessly
verbose, repetitive, conclusory, and fails to articulate a
single cogent reason as to why the Judgment dismissing his
Complaint should be lifted. Plaintiff has incurred multiple
strikes throughout this litigation. Despite being repeatedly
advised of the deficiencies of his request, he has continued
to file multiple lengthy motions without any discernable
factual or legal support. The federal courts have limited
resources; frequent frivolous filings diminish the ability of
the courts to manage their dockets for the efficient
administration of justice. To this end, “[f]ederal
courts have the inherent power to regulate the activities of
abusive litigants by imposing carefully tailored restrictions
under appropriate circumstances.” Ysais v.
Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010) (citing
Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir.
1989)). Plaintiff is warned that the future filing of
vexatious motions may result in the imposition of sanctions,
including, but not limited to, an injunction prohibiting
Plaintiff from making future filings without leave of court.
Plaintiff's Motion to Vacate and/or Set Aside the Order
and Judgment and to Reopen the Case [Doc. No. 109], Motion
for Leave to File an Amended Complaint [Doc. No. 110], and
Motion for Leave of the Court to File an Objection Exceeding
the Page Limits [Doc. No. 113] are DENIED as
set forth herein.
IS SO ORDERED.
 Plaintiff filed a previous action on
September 7, 2010 in which he raised multiple legal claims,
including several of the same claims now raised in the
instant case, against some of the same defendants. The Court
dismissed Plaintiff's claims, some with prejudice and
some without, and assessed a “strike” under 28
U.S.C. § 1915(g). The Tenth Circuit Court of Appeals