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No free lawsuits for Yellowbear, court says

May 18, 2017 From staff reports

The convicted murderer killed his 22-month-old daughter, Marcela Hope Yellowbear.

A three judge panel from the 10th Circuit Court of Appeals has dismissed multiple appeals from Andrew Yellowbear, requiring the convicted murderer to pay court fees in his current lawsuit against the Wyoming prison system.

In that ongoing claim, Yellowbear contends that the prison has consistently retaliated against him for his frequent lawsuits.

During his imprisonment, Yellowbear has become a prolific litigant, representing himself in his abounding cases against the Wyoming prison system.

In 10 separate lawsuits over the last decade, Yellowbear has made more than 250 court filings composed of more than 5,000 pages of legal arguments and other demands. In some instances, he's also received counsel from private attorneys or the American Civil Liberties Union, which won a 2008 lawsuit for Yellowbear that secured his right to have eagle feathers in prison.

Most of his claims, however, have been dismissed by judges in months of back-and-forth filings between Yellowbear and the state's attorneys.

Yellowbear was convicted in 2006 of murdering his 22-month-old daughter, Marcela Hope Yellowbear. The child died in 2004 after weeks of torture and beatings in a Riverton apartment.

Despite the brutality of his daughter's death, Yellowbear's claims have occasionally garnered sympathy from even the most conservative judges, including Supreme Court Justice Neil Gorsuch, who said in 2014 while sitting on the 10th Circuit that the Medium Correctional Institution in Torrington "may even harbor some animus or at least indifference to (Yellowbear's) religion."

Yellowbear's latest appeal to the 10th Circuit -- his 14th -- challenged four unfavorable rulings, including one from the district court that revoked his ability to sue without payment of usual court fees.

That status, known as in forma pauperis in the legal world, is typically granted to indigent litigants who cannot afford such fees.

Yellowbear was originally granted that status last June by Judge Alan Johnson after arguing that his only income is $40 each month from the Department of the Interior.

The decision was later reversed after the prison's attorneys showed that Yellowbear received a deposit of $17,483 in August 2015.

Yellowbear argued that money came from probate funds from oil and gas royalties that are exempt of any claim.

In response, Johnson ruled that Yellowbear had to pay a filing fee by Dec. 5 or have his suit dismissed, saying Yellowbear should have disclosed his receipt of the funds and then argued that he still qualified for indigent status.

When faced with an unfavorable ruling from Johnson, Yellowbear has consistently sought to have the judge disqualified, saying Johnson has a "personal bias" against him.

But despite his criticism of Johnson, the judge has, more often than not, allowed Yellowbear to continue his lawsuits without paying court fees in the past.

Because the current lawsuit has not yet been dismissed and there's an outstanding motion for partial summary judgment, the 10th Circuit determined that none of the claims amount to "final appealable order" and dismissed the claims "for want of jurisdiction."

Typically, such a revocation of the status would be immediately appealable, especially if it barred a defendant from proceeding in district court.

In this case, however, the 10th Circuit determined that such case law does not apply since Yellowbear's case has not been dismissed in district court and he has yet to contend that he cannot pay the necessary fees.

If Yellowbear were to pay the filing fee, he could still challenge the status in future proceedings.

In its dismissal, the 10th Circuit also denied Yellowbear's appeals of other decisions by the district court, including its denial of a hearing on a motion to dismiss and a denial of Yellowbear's request to file a sur-reply.

None of those decisions, the 10th Circuit decided, amount to appealable final orders.

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2017-10-22