## F I L E D United States Court of Appeals Tenth Circuit 

### APR 16 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM F. SCHLICHER,

Plaintiff-Appellant,

v. DON THOMAS, JERRY GREEN, ROBERT HENDRICKS and R.L. SMITH,

Defendants-Appellees.

WILLIAM F. SCHLICHER,

Plaintiff-Appellant,

v. JULIE L. RIDDLE and DON THOMAS, and any others whom become exposed or revealed as support/aiders/abettors, in their individual selves, combined and conspired, Defendants-Appellees. No. 95-3402

No. 96-3003* Counsel for defendants-appellees have waived the fi ling of briefs.

WILLIAM F. SCHLICHER,

Plaintiff-Appellant,

v. LORI E. REEVES, JULIE L. RIDDLE, JOHN J. KNOLL, LONNIE KOCH, Officer; GARY COMSTOCK, Officer; JACK HIRES, ROGER PARKER, Officer Major; L.M. LEISING, R. VOGSBURG, MIKE NELSON and WILLIAM L. CUMMINGS,

Defendants-Appellees. No. 96-3399

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. Nos. 92-CV-3498, 95-CV-3468, and 94-CV-3150)

Submitted on the briefs: William F. Schlicher, pro se. Lawrence J. Logback and James W. Coder, Office of the Kansas Attorney General, Topeka, Kansas, for Defendants-Appellees. *

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.
BALDOCK, Circuit Judge.1 Mr. Schlicher filed his notice of appeal in case No . 95-3402 and case No.

96-3003 before the April 26, 1996, enactment of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321. The amended standard for granting in forma pauperis status under 28 U.S.C. § 1915 doe s not apply to these cases. See White v. Gregory , 87 F.3d 429, 430 (10th Cir), cert. denied , 117 S. Ct. 528 (1996). In case No. 96-3003, filed after the PLRA enactment date, the district court granted Mr. Schlicher leave to proceed in forma pauperis on appeal. We do not reopen that determination. However, we note th at Mr. Schlicher is required to comply with the filing fee requirements of § 1915(b ), as amended by the PLRA.

2 After examining the briefs filed by Mr. Schlicher and the appellate record, this panel has determined unanimously that oral arg ument would not materially assist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted without oral argument.

-3- Plaintiff-Appellant William F. Schlicher, a Kansas state prisoner proceeding pro se and in forma pauperis, 1 appeals from the district court’s entry of dispositive orders in these 42 U.S.C. § 1983 act ions filed against employees and officials of the Kansas Department of Correctio ns (DOC) and the Office of the Attorney General. We exercise jurisdiction und er 28 U.S.C. § 1291, consolidate the appeals under Fed. R. App. P. 3(b), and affirm. 2Additionally, we announce restrictions on Mr. Schlicher’s future fil ings based on his history of repetitive, frivolous, and malicious filings.3 Initially, the district court had dismissed the complaint without the benefit

of a Martinezreport. We reversed and remanded with instruction s to develop a record sufficient for an evaluation under 28 U.S.C. § 1915(d). Schlicher v. Thomas , Nos. 93-3062, 92-3498, 1993 WL 207445 (10th Cir. June 10, 1993). -4- I. Schlicher v. Thomas, No. 95-3402 Mr. Schlicher brought this action alleging that def endants-appellees (officials and employees of the Kansas Department o f Corrections (DOC)), violated his due process and equal protection right s by denying him permission to purchase a typewriter with memory features. To asc ertain the adequacy of the factual and legal basis for Mr. Schlicher’s claims, the district court ordered a report and a supplemental report pursuant to Martin ez v. Aaron , 570 F.2d 317, 319-20 (10th Cir. 1978). 3 After considering the report, the court determine d that Mr. Schlicher’s claims were clearly baseless and di smissed the case under the former 28 U.S.C. § 1915(d) (now codified at 28 U.S. C. § 1915(e)(2)(B)(i)). Under § 1915(d), a district court may dismiss an informa pauperis action as frivolous if the “claim [is] based on an indisputab ly meritless legal theory” or if it is founded on “clearly baseless” factual contention s. Neitzke v. Williams , 490 U.S. 319, 327 (1989). Consideration of a Martinez report may enter into the determination. See Hall v. Bellmon , 935 F.2d 1106, 1109 (10th Cir. 1991).-5-

We review the § 1915(d) dismissal of this action fo r abuse of discretion, Denton v. Hernandez , 504 U.S. 25, 33 (1992), and affirm substantially for the reasons set forth in the district court’s memorandum and order of May 2, 1995. II. Schlicher v. Riddle, No. 96-3003 In this case, Mr. Schlicher alleged that defendants -appellees, who were attorneys in the office of the attorney general, we re liable to him for participating in a conspiracy involving the submission of a fraudulent Martinezreport in case No. 95-3402. The district court characterized Mr. Schlicher’s unsupported allegations as abusive and malicious, then dismisse d the complaint under § 1915(d). See Hall , 935 F.2d at 1108. We agree with the ruling of th e district court. On its face, the claim was frivolous and ma licious. Summary dismissal was the proper disposition of the matter.

III. Schlicher v. Reeves, No. 96-3399 Mr. Schlicher filed this action alleging violations of his constitutional and statutory rights in connection with the results of DOC disciplinary proceedings. Defendants-appellees, DOC employees and attorneys i n the Office of the Attorney General, filed an answer which incorporated a motio n to dismiss and a Martinez report. The district court gave notice to the part ies that it would treat defendants’ motion to dismiss as a motion for summary judgment. See Fed. R. Civ. P. 12(b). The court specifically advised Mr. Schlicher that aresponse under oath was4 We note that, like Mr. Schlicher’s filings in the d istrict court, his appellate

brief is filled with invective, but bereft of factu al analysis or legal argument. -6- necessary, see Fed. R. Civ. P. 56(e), and alerted him to the factthat he could not rest upon mere allegations without risking entry of summary judgment, see id. Mr. Schlicher’s responsive filing failed to meet th e standards of Fed. R. Civ. P. 56(e) and the district court entered an order strik ing the response. Later, the court granted appellees’ motion for summary judgment. We review de novo the district court’s grant of sum mary judgment. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). The distric t court gave the requisite notice to Mr. Schlicher that it was going to treat the motion to dismiss, along with the Martinezreport, as a motion for summary judgment. See David v. City & County of Denver , 101 F.3d 1344, 1352 (10th Cir. 1996). Moreover, the court advised Mr. Schlicher of his right to file material responsive to the Martinez report, explained the affidavit requirements of Fed . R. Civ. P. 56(e), and warned that failure to make a satisfactory response could result in entry of summary judgment. See Hall , 935 F.2d at 1111. Mr. Schlicher chose to ignore the district court’s directives. 4As a consequence, the record contained no evidence of a genuine issue of a material fact. We affirm the district court’s entry of summ ary judgment.

IV. Sanctions5 In addition to the appeals addressed in this opinio n, Mr. Schlicher has filed

the following matters: Schlicher v. Munoz , No. 90-3064 (10th Cir. May 30, 1990) (terminated on the merits); Schlicher v. Young , No. 90-3065 (10th Cir. May 30, 1990) (terminated on the merits); Schlicher v. Davi es , No. 89-3336 (10th Cir. June 12, 1990) (dismissed as frivolous); Schlicher v. Davies , No. 89-3325 (10th Cir. June 12, 1990) (dismissed as frivolous); Schli cher v. United States Dist. Ct. , No. 90-601 (10th Cir. Feb. 25, 1991) (procedurally terminated); Schlicher v. Roberts , No. 91-3046 (10th Cir. June 3, 1991) (dismissed); Schlicher v. Roberts , No. 91-3081, 1991 WL 94453 (10th Cir. June 3, 1991) (dismissed as frivolous ); Schlicher v. Smith , No. 91-3213, 1992 WL 19887 (10th Cir. Feb. 5, 199 2) (dismissed); Schlicher v. United States Dist. Ct. , No. 92-533 (10th Cir. May 1, 1992) (petition for mandamus denied); Schlicher v. United States Dist. Ct. , No. 92-537 (10th Cir. May 1, 1992) (petition for mandamus denied); Schlicher v. Davies , No. 92-3143 (10th Cir. June 17, 1992) (procedural ly terminated); Schlicher v. Hendrick , No. 92-3229, 1992 WL 372577 (10th Cir. Dec. 15, 1 992) (dismissed); Schlicher v. Gibbens , No. 92-3087, 1993 WL 125407 (10th Cir. Apr. 20, 1993) (affirmed); Schlicher v. Furgason , No. 93-3041, 1993 WL 152659 (10th Cir. May 11, 1993) (affirming district court’s dism issal of action as frivolous); Schlicher v. Thomas , No. 93-3062, 1993 WL 207445 (10th Cir. June 10, 1 993) (earlier appeal in No. 95-3042, reversed and remand ed for development of record); Schlicher v. Saffels , No. 93-591 (10th Cir. Aug. 17, 1993) (petition fo r mandamus denied); Schlicher v. Saffels , No. 93-613 (10th Cir. Sept. 8, 1993) (petition for mandamus procedurally terminated); Sc hlicher v. Saffels , No. 93-614 (10th Cir. Sept. 8, 1993) (petition for mandamus pr ocedurally terminated); Tucker v. Maschner , No. 91-3363, 1994 WL 123241 (10th Cir. Apr. 11, 1 994) (affirmed); Schlicher v. Saffels , No. 94-595 (10th Cir. Aug. 25, 1994) (petition fo r mandamus denied); Schlicher v. Saffels , No. 94-597 (10th Cir. Aug. 25, 1994) (petition fo r mandamus denied); Schlicher v. Saffels , No. 94-604 (10th Cir. Aug. 25, 1994) (continued...) -7- In the past, we have permitted Mr. Schlicher to pro ceed in forma pauperis and have construed his filings liberally, in defere nce to his status as a pro se litigant. See Hall , 935 F.2d at 1110. A review of his filing historyreveals the extent to which he abused these privileges. Since 1989, Mr. Schlicher has filed thirty-three appeals and original proceedings in th is court. 5 Most were summarily5 (...continued)

(petition for mandamus denied, with warning of poss ibility of sanctions for additional frivolous filings); Schlicher v. Smith , No. 94-3265 (10th Cir. Nov. 4, 1994) (procedurally terminated); Schlicher v. Smith , No. 94-3336, 1995 WL 221492 (10th Cir. Apr. 13, 1995) (affirmed); Schlic her v. Martin , No. 95-3118, 1996 WL 41848 (10th Cir. Feb. 2, 1996) (affirmed); Schlicher v. Reeves , No. 96- 606 (10th Cir. Mar. 1, 1996) (petition for mandamus denied); Schlicher v. Reeves No. 96-3073 (10th Cir. Aug. 15, 1996) (procedurallyterminated); Schlicher v. Peters , 103 F.3d 940 (10th Cir. 1996) (affirmed); Schlich er v. Wasinger , No. 96- 3300 (10th Cir. Feb. 5, 1997) (procedurally terminated); Tucker v. Graves , No. 96-3015, 1997 WL 100884 (10th Cir. Mar. 6, 1997) (a ffirmed).

6 He has prevailed on appeal in only one matter. As previously noted, Schlicher v. Thomas , No. 93-3062, was initially reversed and remanded for development of the record. -8- terminated or dismissed. 6Five of these matters were dismissed as frivolous ; one with a warning that filing “any additional frivolou s petitions or appeals will result in the imposition of sanctions,” Schlicher v. Saffe ls , No. 94-604. Accordingly, we have determined to call a halt to M r. Schlicher’s wasteful abuse of judicial resources. Mr. Schlicher’s futur e filings are restricted in two ways: (A) by operation of 28 U.S.C. § 1915(g), a pr ovision of the PLRA; and (B) by an exercise of our “inherent power to enter orders ‘necessary or appropriate’ in aid of our jurisdiction,” see Winslow v. Hunter (In re Winslow) , 17 F.3d 314, 315 (10th Cir. 1994) (quoting 28 U.S.C . § 1651).
A. Section 1915(g) Section 1915(g) provides that a prisoner may not-9-

bring a civil action or appeal a judgment in a civi l action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any fa cility, brought an action or appeal in a court of the United States th at was dismissed on the grounds that it is frivolous, malicious, or fai ls to state a claim on which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. The provision applies to mandamus proceedings, Gree n v. Nottingham , 90 F.3d 415, 418 (10th Cir. 1996), and to appeals that were dismissed prior to enactment of the PLRA, id. at 420. Under § 1915(g), Mr. Schlicher is barred from proce eding in forma pauperis in the future. We therefore direct the cl erk of this court not to accept from Mr. Schlicher any further appeals of judgments in civil actions or proceedings or any extraordinary writs in noncrimin al matters, unless he pays the filing fees established by our rules. This directi ve does not apply to appeals or petitions claiming that Mr. Schlicher is under immi nent danger of serious physical injury.
B. Inherent power of this court In cases other than those in which imminent danger of serious physical injury is alleged, we further restrict Mr. Schliche r’s filing privileges through an exercise of “our inherent power to enter orders ‘n ecessary or appropriate’ in aid of our jurisdiction.” Winslow , 17 F.3d at 315 (citing 28 U.S.C. § 1651); see als o Werner v. State of Utah , 32 F.3d 1446, 1448 (10th Cir. 1994). The “‘rightof-10-

access to the courts is neither absolute nor uncond itional, and there is no constitutional right of access to the courts to pro secute an action that is frivolous or malicious.’” Winslow , 17 F.3d at 315 (quoting Tripati v. Beaman , 878 F.2d 351, 353 (10th Cir. 1989) (further citation omitted ). If a party “‘has engaged in a pattern of litigation activity which is manifestly abusive,’ restrictions are appropriate.” Winslow , 17 F.3d at 315 (quoting Johnson v. Cowley , 872 F.2d 342, 344 (10th Cir. 1989)). Mr. Schlicher’s filings have been repetitive, frivo lous, and malicious. We therefore impose additional restrictions on his fil ings in this court, whether or not he pays a full filing fee. Mr. Schlicher is enjoin ed from proceeding as an appellant or a petitioner without the representatio n of a licensed attorney admitted to practice in this court, unless he first obtains permission to proceed pro se. To do so, he must take the following steps: 1. File a petition with the clerk of this court requ esting leave to file a pro se action; 2. Include in the petition the following information : a. A list of all lawsuits currently pending or filed previously with this court including the name, number, and citation , if applicable, of each case, and the current status or disposition of the appeal or original proceeding;-11- b. A list apprising this court of all outstandi ng injunctions or orders limiting his access to federal court, includ ing orders and injunctions requiring him to be represented by an attorney, inc luding the name, number, and citation, if applicable, of all such orders and inj unctions; 3. File with the clerk a notarized affidavit, in pro per legal form, which recites the issues which he seeks to present, inclu ding a short description of the legal basis asserted for modifying the lower court decision, and describing with particularity the order or ruling being challenged. The affidavit must also certify, to the best of his knowledge, that the legal argume nts 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 r eversal of existing law, that the appeal is not interposed for any improper purpose, and that he will comply with all appellate and local rules of this court. These documents shall be submitted to the clerk of the court, who shall forward them to the chief judge for review to determine whether to permit a pro se original proceeding or appeal. Without the chie f judge’s approval, the matter will be dismissed. If the chief judge approves the filing, an order shall be entered indicating that the appeal or original proceeding s hall proceed in accordance with the Federal Rules of Appellate Procedure and the Te nth Circuit Rules. If, at any-12-

time Mr. Schlicher submits any filing to this courtthat contains abusive language, the clerk shall immediately return those papers unf iled to Mr. Schlicher. Mr. Schlicher shall have twenty days from the date of this order to file written objections, limited to fifteen pages, to th ese proposed sanctions. If he does not file objections the sanctions shall take e ffect thirty days from the date of this order. The filing restrictions shall apply to any matter filed after that time. If Mr. Schlicher does file timely objections, these sanctions shall not take effect until after this court has ruled on those objection s. V. Conclusion The judgments of the United States District Court f or the District of Kansas
are AFFIRMED.