Bunch v. Craig , 304 F. App'x 669 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
December 19, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
HENRY JAY BUNCH,
Plaintiff - Appellant,
v. No. 08-7062
(E.D. Oklahoma)
SCOTT CRAIG; JOHN DOE, (D.C. No. 6:07-CV-00391-RAW)
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Henry Jay Bunch, an Arkansas state prisoner proceeding pro se, brought an
action under 42 U.S.C. § 1983 in the United States District Court for the Eastern
District of Oklahoma against Scott Craig, an employee of the Cherokee Nation
Marshal Service, and Craig’s unnamed supervisor at the Marshal Service. The
factual allegations underlying his claim are unusual, but we assume them to be
*
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not binding precedent except under the doctrines of law of the case, res judicata,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.
true for purposes of this appeal: Mr. Bunch was acting as an undercover
informant for the Cherokee Nation Marshal Service. Craig promised to supply
him with the ingredients needed to manufacture methamphetamine so that he
could supply them to a drug dealer under investigation. After Mr. Bunch
promised to supply the dealer with the ingredients, he was unable to contact
Craig, placing Mr. Bunch under “severe duress.” R. at 7. To satisfy the dealer,
he shoplifted sudaphedrine pills from a Wal-Mart in Fayetteville, Arkansas. After
being apprehended by a Wal-Mart employee, Mr. Bunch drew a pistol from his
waistband and fired several shots in the air. When confronted by law-
enforcement officers, Mr. Bunch fired the pistol a third time but was ultimately
arrested. Mr. Bunch complains that Craig injured him by not assisting in getting
supplies for the dealer and in not helping him after he was arrested. His claim
against the supervisor is for deficient supervision of Craig.
Craig filed a motion to dismiss for lack of jurisdiction and failure to state a
claim. Mr. Bunch filed a motion for appointment of counsel. The district court
denied Mr. Bunch’s motion and dismissed the case because Mr. Bunch had failed
to state a claim against Craig or his supervisor and, to the extent that the
Defendants were sued in their official capacities, the suit was barred by tribal
sovereign immunity. Mr. Bunch’s motion for rehearing was denied as repetitious.
Mr. Bunch appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
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We agree with the district court that Mr. Bunch failed to state a claim. A
claim under § 1983 requires the defendant to have acted “under color of state
law.” E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1305 (10th Cir.
2001). Not only does the complaint fail to tie either defendant to a state
government, but Mr. Bunch checked boxes on the complaint form saying that
neither defendant was acting “under color of state law,” R. at 4–5.
We AFFIRM the judgment of the district court. We DENY Mr. Bunch’s
motion for leave to proceed in forma pauperis and ORDER him to immediately
commence partial payments until the fees assessed on September 19, 2008, have
been paid in full.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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