Gravley v. Hunter ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 18, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DWAUNE J. GRAVLEY,
Plaintiff-Appellant,
v. No. 18-1246
(D.C. No. 1:18-CV-00171-LTB)
LARRY HUNTER, CEO of Direct (D. Colo.)
TV; RANDALL STEPHENSON,
CEO of AT&T; JEFFREY ZUCKER,
“Jeff” President of CNN; PHILIP T.
GRIFFIN, “Phil” President of
MSNBC; RUPERT MURDOCH,
CEO of Fox News; CHRIS
MCCARTHY, President of VH1;
GEORGE BODENHEIMER, CEO,
and Acting Chairman of ESPN;
BRIAN ROAPP, CEO of NFL
Networks; BERNARDO GOMEZ,
Co-CEO of Televisa; ALFONSO DE
ANGOITIA, Co-CEO of Televisa;
SEAN L. ATKINS, President of
MTV; STEPHEN B. BURKE, CEO
of NBC; BEN SHERWOOD, CEO of
ABC; JOHN K. MARTIN, CEO and
Current Chairman of TNT; JOHN
LANDGRAF, CEO of FX Networks;
PAUL RYAN, House Speaker; and
ALL OTHER CEO'S, of the
unnamed channels provided by
Prison Admax, Florence Colorado,
Defendants-Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
In this suit, Mr. Dwaune J. Gravley alleges that television networks
and public figures are secretly “branding” him as a sexual predator.
According to Mr. Gravley, he discovered this branding by deciphering a
secret code used on television. The district court sua sponte dismissed the
suit as frivolous, leading Mr. Gravley to appeal and move for leave to
proceed in forma pauperis. We dismiss the appeal and deny the motion.
Because Mr. Gravley proceeded in forma pauperis in district court,
the court must dismiss the suit or the appeal if it is frivolous. 28 U.S.C.
§ 1915(e)(2)(B)(i). A suit or appeal is frivolous if it “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324
(1989).
*
Mr. Gravley requests oral argument, but it would not materially aid
in our decision. We are therefore deciding the appeal based on Mr.
Gravley’s appeal brief and the record. See Fed. R. App. P. 34(a)(2); Tenth
Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited if otherwise appropriate. See Fed.
R. App. P. 32.1(a); Tenth Cir. R. 32.1(A).
2
We review the district court’s ruling for an abuse of discretion.
Denton v. Hernandez, 504 U.S. 25, 33 (1992). In our view, the dismissal
obviously fell within the district court’s discretion because Mr. Gravley’s
factual contentions were unbelievable. We therefore dismiss the appeal as
frivolous. 1
Though we dismiss the appeal, we must consider Mr. Gravley’s
request for leave to proceed in forma pauperis. Mr. Gravley lacks enough
money to prepay the filing fee, but we can grant leave to proceed in forma
pauperis only if Mr. Gravley acted in good faith. 28 U.S.C. § 1915(a)(3).
We consider good faith under an objective standard, so a frivolous appeal
is—by definition—made in bad faith. Coppedge v. United States, 369 U.S.
438, 444–45 (1962). Because we have already characterized the appeal as
frivolous, we deny Mr. Gravley’s request for leave to proceed in forma
pauperis. See Lee v. Clinton, 209 F.3d 1025, 1026–27 (7th Cir. 2000)
(holding that a frivolous suit is, by definition, not taken in good faith for
purposes of leave to proceed in forma pauperis).
1
The district court’s dismissal and ours count as two “prior occasions”
for future requests for leave to proceed in forma pauperis. See 28 U.S.C.
§ 1915(g); see also Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175
F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal of
an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B),
both dismissals count as strikes.”), overruled on other grounds by Coleman
v. Tollefson, 135 S. Ct. 1759, 1763 (2015).
3
Entered for the Court
Robert E. Bacharach
Circuit Judge
4