F I LED

United States Court of Appeals

Tenth Circuit

November 14, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KAY SIEVERDING,

Plaintiff-Appellant,

and

DAVID SIEVERDING;

ED SIEVERDING;

TOM SIEVERDING,

Plaintiffs,

v.

COLORADO BAR ASSOCIATION,

and their insurance company (true

name unknown); CITY OF

STEAMBOAT SPRINGS, CO,

a municipality; AMERICAN BAR

ASSOCIATION, and their insurance

company (true name unknown);

JANE BENNETT, private citizen

acting in conspiracy with City policy

makers; KEVIN BENNETT,

individually and in capacity as City

council member; KEN BRENNER,

individually and in capacity as a City

council member; DAVID

BROUGHAM, individually and in

capacity as apparent City insurance

agent (for CIRSA); CIRSA, insurance

agent for the CITY; INSURANCE

AGENT, other than Brougham, and

decision makers for CIRSA (true

name unknown); KATHY

CONNELL, individually and as

No. 06-1038
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employed as City council member;

DAVIS, GRAHAM & STUBBS,

LLC; JAMES ENGLEKEN,

individually and in capacity as City

council member; ART FIEBING,

individually and as employed as City

assistant chief of police; SANDY

FIEBING, individually and as the

City code enforcement officer;

DANIEL FOOTE, individually and in

capacity as assistant City attorney;

JAMES GARRECHT, in capacity as

district court judge (for injunctive

relief only since he is immune from

suit for damages); J. D. HAYS,

individually and in capacity as City

director of public safety; HALL &

EVANS, LLC, and their insurance;

JAMES “SANDY” HORNER,

individually and as attorney working

for Klauzer & Tremaine and his

insurance company; PAUL HUGHES,

individually and in capacity as City

manager; KLAUZER & TREMAINE,

a law firm, and insurance (true name

unknown); RANDALL KLAUZER,

individually and in capacity as an

attorney and his insurance company;

CHARLES LANCE, individually and

in capacity as former district attorney

and his insurance; ANTHONY

LETTUNICH, individually and in

capacity as City attorney and his

insurance; PAUL R. MCLIMANS,

individually and in capacity as a

district attorney and his insurance

company; WENDIE

SCHULENBURG, (a.k.a. Rooney),

individually and in capacity as City

planning services director and her

insurance; MELINDA SHERMAN,
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former assistant City attorney,

individually, and in capacity, and

their insurance; KERRY ST. JAMES,

individually and in capacity as deputy

or assistant district attorney and his

insurance; JAMES B.F. OLIPHANT,

Bennett’s attorney and purchaser of

plaintiff’s home; SUZANNE

SCHLICHT, individually and in

capacity as newspaper publisher and

her insurance; STEAMBOAT PILOT

& TODAY NEWSPAPER,

(Worldwest Limited Liability

Company), and insurance (true name

unknown); ARIANTHE STETTNER,

individually and in capacity as City

council member; PAUL STRONG,

individually and in capacity as City

council member and his insurance

company; RICHARD TREMAINE,

individually and in capacity as an

attorney and his insurance company;

JAMES WEBER, individually and in

capacity as City public works director

and his insurance company; P.

ELIZABETH WITTEMYER,

individually and in capacity as deputy

district attorney, and her insurance,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 02-CV-1950-EWN-OES)
After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

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Submitted on the briefs:*

Kay Sieverding, Pro Se.

Patricia J. Larson, Senior Associate General Counsel, American Bar Association,

Chicago, Illinois, for Defendant-Appellee American Bar Association.

Thomas B. Kelley, Christopher P. Beall, Faegre & Benson, LLP, Denver,

Colorado, John M. Palmeri, Brett Norman Huff, White and Steele, P.C., Denver,

Colorado, Michael T. McConnell, Traci L. Van Pelt, Robert W. Steinmetz,

McConnell, Siderius, Fleischner, Houghtaling & Craigmile, LLC, Denver,

Colorado, David R. Brougham, Hall & Evans, Denver, Colorado, for

Defendants-Appellees.

Before BARRETT, ANDERSON, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Kay Sieverding, proceeding pro se, appeals from the district court’s order 

imposing filing restrictions. We affirm the district court’s imposition of filing

restrictions, but we conclude that a portion of the order must be modified. 

Background

Ms. Sieverding, her husband, and two sons filed a complaint in the District

of Colorado in October 2002. The complaint was 106 pages long and set forth
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claims against thirty-six individuals or entities. The underlying issue in the case

related to the alleged violation of the Sieverdings’ rights with regard to zoning

decisions that affected them and their former neighbors. During the pendency of

the case, the Sieverdings filed more than 100 motions. In October 2003, the

magistrate judge assigned to the case issued a sixty-one page recommendation

that the case be dismissed with prejudice; that the Sieverdings be required to pay

defendants’ costs and fees; and that they be enjoined from commencing further

litigation in the District of Colorado regarding these events without first obtaining

counsel. The district court accepted and adopted the recommendations in an order

entered on March 19, 2004, but expanded on the magistrate judge’s recommended

filing restrictions by enjoining the Sieverdings from filing lawsuits related to this

subject matter in the District of Colorado or any other court. 

The Sieverdings filed three appeals from the March 2004 order in this court

and they were consolidated. The district court’s order adopting the magistrate

judge’s recommendation was summarily affirmed on appeal. We observed that

“appellants did not assert error with the imposition of filing restrictions and,

therefore, this court will enforce those restrictions.” Sieverding v. Colo. Bar

Ass’n, 126 F. App’x 457, 459 (10th Cir. 2005).

In late 2004 and 2005, the Sieverdings continued filing actions relating to

the subject matter of their previous lawsuit. They filed five new civil actions in

the federal district courts in Minnesota, Northern Illinois, and the District of
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Columbia; one new civil action in the state court in Denver County, Colorado;

and one appeal in the Eighth Circuit Court of Appeals. In the summer of 2005,

the defendants filed a motion requesting a show cause order as to why the

Sieverdings should not be sanctioned for violating the filing restrictions portion

of the March 2004 order. On September 2, the district court held a hearing and

found the Sieverdings to be in contempt of court for violating the March 2004

order. The district court gave both of the Sieverdings the option of dismissing the

lawsuits that remained pending in the District of Columbia and Colorado state

court or going to jail. Ms. Sieverding refused to dismiss the lawsuits and was

sent to jail. Mr. Sieverding withdrew his name from the pending cases.

On January 4, 2006, Judge Nottingham held a show cause hearing, and

ordered Ms. Sieverding to dismiss the remaining lawsuits that had been filed in

violation of the March 2004 order. Ms. Sieverding was released from custody

with the condition that she dismiss all of her remaining lawsuits by January 11. 

At that hearing, Judge Nottingham also entered another order, which prohibited

Ms. Sieverding from filing any further lawsuits anywhere in this country unless

she is represented by a lawyer or unless the district court specifically approves

her filing of a given lawsuit. This order broadened the March 2004 order because

it was not limited by subject matter. The district court entered a written order on

January 31 that memorialized the verbal order from January 4 and gave support

for his filing restrictions decision. Ms. Sieverding filed a petition for mandamus
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from the January 4 order and this court construed it as a notice of appeal from the

verbal January 4 order as memorialized in the January 31 order.

Discussion

“[T]he right of access to the courts is neither absolute nor unconditional

and there is no constitutional right of access to the courts to prosecute an action

that is frivolous or malicious.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.

1989) (citations omitted) (per curiam). Federal courts have the inherent power

“to regulate the activities of abusive litigants by imposing carefully tailored

restrictions under the appropriate circumstances.” Id. at 352 (quoting Cotner v.

Hopkins, 795 F.2d 900, 902-03 (10th Cir. 1986)). We agree with the district court

that filing restrictions were appropriate in this case. We conclude, however, that

the restrictions were not carefully tailored as required by our case law and that a

portion of the filing restrictions order must be modified. 

The substance of the filing restriction states: 

Kay Sieverding and David Sieverding are hereafter prohibited from

commencing any pro se litigation in any court in the United States on

any subject matter unless they meet the requirements of Paragraph 2

below.

R., Vol. I, Doc. 788 at 7 ¶ 1. Paragraph 2 explains that the Sieverdings must seek

approval from the District of Colorado before commencing any pro se litigation in

any court in the United States on any subject matter. Id. at ¶ 2. The order does

not apply if the Sieverdings are represented by a licensed attorney. Id. at ¶ 3. 
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This filing restrictions order is unlike other filing restrictions orders that

have been reviewed by this court because it extends to any court in this country as

opposed to being limited to the jurisdiction of the court issuing the order. The

order thereby includes every state court, every federal district court and every

federal court of appeal. Appellees cite to only one case that involved similarly

broad filing restrictions, Martin-Trigona v. Lavien, 737 F.2d 1254 (2d Cir. 1984),

to support their argument that the breadth of the district court’s order was

appropriate. 

In Martin-Trigona, the Second Circuit was reviewing an order imposing

restrictions that enjoined the filing of any action in any state or federal court in

the United States arising out of plaintiff’s bankruptcy proceedings, unless certain

conditions were met. The order did, however, include an exception for certain

types of filings, including filings in the federal appellate courts. See id. at 1259

(“Nothing in this order shall be construed as denying [plaintiff] access to the

United States Courts of Appeals.”). The Second Circuit upheld the portion of the

filing restrictions order that prohibited the plaintiff from filing an action in any

federal district court in the country without prior permission. See id. at 1262. 

The court determined, however, that the district court erred by extending the

filing restrictions to include state courts, although the court left intact the

requirement that Mr. Martin-Trigona notify the state courts regarding his prior

litigation history. See id. at 1262-63. 
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We disagree with the Second Circuit’s decision to uphold the broad filing

restriction limiting access to any federal district court in the country and we will

not uphold such a broad filing restriction in this case. We think it is appropriate

for the District of Colorado to impose filing restrictions that include other federal

district courts within the Tenth Circuit, but that it is not appropriate to extend

those restrictions to include federal district courts outside of this Circuit. It is not

reasonable for a court in this Circuit to speak on behalf of courts in other circuits

in the country; those courts are capable of taking appropriate action on their own.

We agree with the Second Circuit’s determination that it is not appropriate

for a federal district court to restrict access to the state courts. The district court

erred in this case by imposing filing restrictions limiting access to any court in

the country. Finally, we note that the district court’s broad order, unlike the order

at issue in Martin-Trigona, fails to include an exception for filings in the federal

appellate courts. This was error. It is unreasonable for the District of Colorado

to attempt to limit access to this court or any other court of appeal. We are

capable of deciding if filing restrictions are appropriate in this court. 

In light of our ruling in this case, we note that the district court’s March

2004 order is also defective. Although that order is not properly before us and

the district court did not have the benefit of this decision when it entered that

order, we exercise our supervisory power to instruct the district court that it may

not enforce the provisions of the March 2004 order that are inconsistent with this
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decision. See, e.g., United States v. Ochoa-Vasquez, 428 F.3d 1015, 1029-30

(11th Cir. 2005), cert. denied, No. 05-1524, 2006 WL 1522633 (U.S. Oct. 10,

2006); see generally Cupp v. Naughten, 414 U.S. 141, 146 (1973) (describing

supervisory power of appellate courts to review proceedings of trial courts). 

Finally, we conclude that the district court’s decision to restrict

Ms. Sieverding’s filings on any subject matter and as to any defendant is

overbroad. The district court’s March 2004 filing restrictions order was properly

limited by subject matter and defendant because it prohibited filings based on the

series of transactions described in that initial federal action, case number

02-cv-1950. Given Ms. Sieverding’s continued filings after that restriction was

entered, the district court was justified in expanding the scope of the filing

restrictions, but there is no apparent basis for extending the restriction to include

any subject matter and any party. Ms. Sieverding has not filed litigation against

random persons or entities. Instead, she has focused her efforts on filing actions

against the persons, entities, counsel, and insurance companies of the parties

involved in 02-cv-1950. We believe the district court’s intention, to restrict

further abusive filings by Ms. Sieverding, is best accomplished by modifying its

order to create a carefully-tailored restriction limiting her ability to file actions

against those persons and entities, but without limitation to subject matter. See,

e.g., Martin-Trigona v. Lavien, 737 F.2d at 1263 (instructing district court on
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remand to craft injunction restricting abusive litigant from filing any actions

against parties, counsel, and court personnel involved in prior litigation).

For the foregoing reasons, we affirm the district court’s order as modified

by this opinion. The portion of the order that states “Kay Sieverding and David

Sieverding are hereafter prohibited from commencing any pro se litigation in any

court in the United States on any subject matter,” R., Vol. I, Doc. 788 at 7 ¶ 1,

is modified to prohibit the Sieverdings from commencing any pro se litigation in

any federal district court within the Tenth Circuit against the persons, entities,

counsel, and insurance companies of the parties involved in 02-cv-1950. The

district court’s order is MODIFIED IN PART, and, as modified, is AFFIRMED. 

All outstanding motions are DENIED.