Creamer v. Kelly ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2015
Elisabeth A. Shumaker
Clerk of Court
MARJORIE A. CREAMER,
Plaintiff - Appellant,
v. No. 14-3252
(D.C. No. 5:14-CV-04073-CM-JPO)
A.D. KELLY; CHRIS DAVIS, (D. Kan.)
Defendants - Appellees.
ORDER AND JUDGMENT*
Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.
Marjorie A. Creamer, proceeding pro se and in forma pauperis (IFP), appeals
the dismissal of her complaint for failure to state a claim and as legally frivolous.
See 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii).1 Under our de novo review, see Vasquez
Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009), we affirm.
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We afford Ms. Creamer’s pro se materials a liberal construction but do not act
as her advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Ms. Creamer brought this action against A.D. Kelly, a veterinarian, and Chris
Davis, a police officer, due to events that transpired after her car ran out of gas.
According to the complaint, Ms. Creamer was with her two dogs when Officer Davis
arrived. He handcuffed her, transported her to Larned State Hospital, and told her
she would never see her dogs again. The dogs were transferred to the custody of
Kelly, who euthanized them. Based on these facts, Ms. Creamer averred that “[t]he
cause of action is the CIVIL RIGHTS action of no probable cause for handcuffing
and confinement, excessive force (i.e. 42 USC section 1983 – ADA 1964, 1991,
4th amendment, K.S.A. 21-6412, K.S.A. 21-4310, K.S.A. 47-1715.” R. at 3.
A magistrate judge screened the complaint and recommended that it be
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) for failure to state a claim and
for frivolousness. The magistrate judge reasoned that the complaint lacked factual
development and contained allegations substantially similar to those Ms. Creamer
had pleaded against the same defendants in a previously dismissed suit. As the
magistrate judge saw it, the complaint suffered from the same deficiencies that led to
the prior dismissal. The district court agreed the complaint was frivolous and failed
to state a claim, and also ruled that amending it would be futile because Ms. Creamer
had failed to properly amend her previous complaint despite multiple opportunities to
do so, her present complaint contained even fewer allegations, and its seventy pages
of attachments did nothing to bolster her claims. Thus, the court granted
Ms. Creamer IFP and dismissed the complaint. Ms. Creamer responded with what
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appeared to be a motion for relief from judgment under Fed. R. Civ. P. 60, but the
district court denied the motion, ruling that she failed to provide any basis for
altering or amending the judgment. Ms. Creamer subsequently appealed.
Under §§ 1915(e)(2)(B)(i) and (ii), a court must screen a complaint filed IFP
and “dismiss the case at any time if the court determines that . . . the action or appeal
is frivolous or malicious; [or] fails to state a claim on which relief may be granted[.]”
“Dismissal of a pro se complaint for failure to state a claim is proper only where it is
obvious that the plaintiff cannot prevail on the facts [she] has alleged and it would be
futile to give [her] an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217
(10th Cir. 2007). A complaint is frivolous where “it lacks an arguable basis either in
law or in fact.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006) (internal
quotation marks omitted).
Here, Ms. Creamer’s complaint was subject to dismissal under both
alternatives because she relied on the same subject matter to advance claims that a
different district judge already determined should be dismissed, with even less factual
development than before. In her previous suit, Ms. Creamer alleged she ran out gas,
Officer Davis stopped and slammed her against the car, and after she was released
from Larned State Hospital, she discovered her dogs had been euthanized by Kelly.
See Creamer v. Rooks Cnty. Kan., 5:13-cv-4076-RDR-KGS (D. Kan. filed July 16,
2013). The district judge in that case dismissed the claims against Kelly because the
complaint failed to state a plausible claim under 42 U.S.C. § 1983. See id., doc. 11,
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at 4-5 (Sept. 25, 2013). The judge further ruled that the claims against Officer Davis
were deficient because Ms. Creamer failed to make a demand for relief as required
by Fed. R. Civ. P. 8(a)(3) or plead compliance with the notice requirements of
Kan. Stat. Ann. § 12-105b(d). Although the judge repeatedly ordered Ms. Creamer to
cure the deficiencies by properly amending her complaint, she failed to do so.
Consequently, the district judge dismissed the complaint for failure to comply with
the court’s rules and orders. See id., doc. 48, at 6 (Apr. 22, 2014).
Ms. Creamer’s present complaint still fails to rectify these deficiencies. It fails
to state a claim against Kelly because it alleges nothing indicating how Kelly could
be liable under § 1983. Further, there is nothing that could be construed as a demand
for relief against Officer Davis. Moreover, nothing that Ms. Creamer has filed thus
far suggests she could cure these deficiencies. And because the complaint is
predicated on the same facts as the previously dismissed suit but provides even less
factual development, it is frivolous. Under these circumstances, the district court
correctly dismissed the complaint for failure to state a claim and frivolousness.
Accordingly, the judgment of the district court is affirmed and any outstanding
requests for relief are denied.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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