Holloway v. Steve Harris Imports , 671 F. App'x 723 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
December 20, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
STEVEN E. HOLLOWAY,
Plaintiff - Appellant, No. 16-4121
v. (D.C. No. 2:14-CV-00861-DB)
STEVE HARRIS IMPORTS; (D. Utah)
ALBERTO GARCIA,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, MURPHY, and PHILLIPS, 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). 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This order and judgment is not binding precedent except under the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.
Steven E. Holloway appeals from an order of the United States District
Court for the District of Utah. The district court dismissed Holloway’s civil
rights complaint pursuant to the provisions of 28 U.S.C. § 1915(e). Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.
Holloway filed a 42 U.S.C. § 1983 civil rights complaint in the District of
Utah, which named as defendants various private entities and individuals. In
response, the district court filed a “Memorandum Decision & Order to Cure
Deficient Complaint.” The district court’s order identified numerous deficiencies
in Holloway’s complaint, specifically including: (1) the complaint brought civil-
rights claims against parties that did not appear to be state actors, (2) the
complaint did not affirmatively link any particular defendants to a violation of
Holloway’s civil rights, and (3) the complaint contained fantastical sounding
claims that appeared frivolous. After Holloway filed an amended complaint, the
matter was referred to a magistrate judge for initial screening and preparation of a
report and recommendation. 28 U.S.C. § 636(b)(1)(B). The magistrate judge
recommended that Holloway’s complaint be dismissed with prejudiced pursuant
to the provisions of § 1915(e)(2)(B)(i) and (ii). In that regard, the magistrate
judge noted as follows:
[T]he Amended Complaint continues to bring civil-rights claims
against commercial entities and individuals who are not state actors.
The United States Constitution imposes limitations only on state
action; it does not reach the conduct of private parties, no matter how
discriminatory or harmful. The Defendants named herein are not
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alleged to have acted under authority or color of law. . . . Plaintiff
has not affirmatively linked Defendants to any violation of Plaintiff’s
civil rights. It is clear from the Complaint that Plaintiff believes he
is entitled to money from Defendants, but what Plaintiff has not done
is make clear exactly who is alleged to have done what to whom. . . .
[F]inally, Plaintiff continues to have fantastical claims that appear
frivolous.
Report & Recommendation at 3 (quotation and footnotes omitted). Upon de novo
review, the district court adopted the magistrate judge’s report and
recommendation and dismissed Holloway’s complaint with prejudice.
This court reviews de novo the district court dismissal of Holloway’s
complaint. Conkle v. Potter, 352 F.3d 1333, 1335 (10th Cir. 2003) (conducting
de novo review of dismissal pursuant to § 1915(e)(2)(B)(ii)). 1 Upon de novo
review, we affirm the district court for substantially those reasons set out in the
magistrate judge’s report and recommendation, dated June 7, 2016, and the
district court’s order, dated June 27, 2016. Accordingly, the order of the district
court dismissing Holloway’s complaint is hereby AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
We recognize that this court generally reviews for abuse of discretion the
dismissal of a complaint as frivolous under § 1915(e)(2)(B)(i). Conkle v. Potter,
352 F.3d 1333, 1335 n.4 (10th Cir. 2003). Because, however, the district court’s
determination of frivolousness appears, at least in part, intertwined with its
determination Holloway’s complaint failed to state a claim, de novo review is
appropriate in this case. Id. In any event, the resolution of this appeal does not
turn in any way on the standard of review.
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