Ruston v. Church of Jesus Christ of Latter-Day Saints , 304 F. App'x 666 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 19, 2008
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
LESTER JON RUSTON,
Plaintiff-Appellant,
v. No. 08-4101
CHURCH OF JESUS CHRIST OF District of Utah
LATTER-DAY SAINTS; GORDON B.
HINCKLEY; VICTOR JAMES (D.C. No. 2:07-CV-00929-TS)
RUSTON; MARGARET ELIZABETH
RUSTON; JERRY HENDERSON;
ALLISON RUSTON-SMITH; MEL
CHADWICK; IAN JAMES RUSTON;
BRAD OATES; LARRY K.
HERCULES; STATE OF TEXAS and
ROLLAND SAFE COMPANY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, KELLY and McCONNELL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Lester Jon Ruston was found not guilty of a criminal charge for reason of
insanity, and is presently confined at the Federal Medical Center in Devens,
Massachusetts, which houses male offenders requiring specialized or long-term
medical or mental health care. He filed suit alleging racketeering and civil rights
violations against the Church of Jesus Christ of Latter Day Saints, various
relatives, the state of Texas, and other defendants. Mr. Ruston sought to proceed
in forma pauperis without prepayment of fees, but the district court rejected his
request pursuant to 28 U.S.C. § 1915(g). That provision of the Prison Litigation
Reform Act (“PLRA”) provides that a “prisoner” cannot proceed in forma
pauperis before paying his filing fee in full when he has at three or more times
filed a motion dismissed as “frivolous or malicious or fail[ing] to state a claim
upon which relief may be granted.” As the district court noted, Mr. Ruston has
previously filed three or more such motions. Because Mr. Ruston failed to prepay
his filing fee in full, the district court concluded that he could not proceed in
forma pauperis, and dismissed the appeal.
Mr. Ruston argues, however, that he is not a “prisoner” within the meaning
of the Act, and therefore that the “three strikes” provision of the PLRA would not
prevent us from granting him leave to proceed in forma pauperis. Although we
have never squarely decided the issue, other courts have found that mental
patients are not “prisoners” within the meaning of the PLRA when they are
confined as a result of being found not guilty by reason of insanity. See
-2-
Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001); see also Troville v.
Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (finding PLRA’s definition of
prisoner “appl[ies] only to persons incarcerated as punishment for a criminal
conviction”). Nevertheless, we need not decide this issue because we have
determined that Mr. Ruston’s complaint is frivolous, and affirm the dismissal of
his complaint on that ground.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), a court is directed to dismiss an
action involving a litigant seeking to proceed in forma pauperis at any time that
it determines that the action is “frivolous or malicious.” Although much of §
1915, by its terms, refers to prisoners, the principle is well-established that
regardless of whether a litigant seeking to proceed in forma pauperis is a prisoner
or not, a court may and should dismiss the action and refuse to appoint counsel
where the action is frivolous. See Kinney v. Plymouth Rock Squab Co., 236 U.S.
43 (1915). Indeed, we have often cited § 1915(e)(2)(B) when dismissing
litigants’ claims because frivolous, even where the litigants were not prisoners
within the meaning of the PLRA. See, e.g., Jamison v. Costco Wholesale, 280
Fed. Appx. 738 (10th Cir. 2008) (dismissing non-prisoner complaint under
Americans with Disabilities Act under § 1915); see also Hafen v. Carter, 274
Fed. Appx. 701 (10th Cir. 2008); Azubuko v. New Hampshire, 175 Fed. Appx. 975(10th Cir. 2006). Accordingly, Mr. Ruston cannot proceed if his action is
frivolous, regardless of whether he is a prisoner within the meaning of the PLRA.
-3-
An action is frivolous under § 1915(e)(2)(B) if “the claim [is] based on an
indisputably meritless legal theory or if it is founded on clearly baseless factual
contentions.” Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (internal
quotations omitted). Here, Mr. Ruston contends that defendants, including the
Church of Jesus Christ of Latter Day Saints, various relatives, the state of Texas,
and others, are engaged in a conspiracy designed to, among other things, destroy
his small businesses, violate international law and the Convention Against
Torture, and commit acts of stalking, kidnaping, attempted murder, torture,
slander, robbery, bribery, and mail fraud. Mr. Ruston alleges facts including a
massive “brain washing scheme” and asserts, amongst other things, that the state
of Texas operates as a “R.I.C.O. racketeering enterprise.” Complaint 3, 5.
After reviewing the factual basis for Mr. Ruston’s complaint, we are
satisfied that “it is founded on clearly baseless factual contentions.” Dismissal is
therefore warranted under § 1915(e)(2)(B). Accordingly, the district court’s
dismissal of his complaint is AFFIRMED on this alternative ground.
Entered for the Court,
Michael W. McConnell
Circuit Judge
-4-