Zimmer v. Gallagher ( 2022 )

Appellate Case: 22-1270 Document: 010110778141 Date Filed: 12/06/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
PATRICK M. ZIMMER,
Plaintiff - Appellant,
v. Nos. 22-1270, 22-1271, 22-1272, 22-1273,
22-1274, 22-1275
GORDON P. GALLAGHER, Magistrate (D.C. Nos. 1:22-CV-02013-LTB,
Judge, 1:22-CV-02018-LTB, 1:22-CV-02019-
LTB, 1:22-CV-02022-LTB, 1:22-CV-
Defendant - Appellee. 02021-LTB, 1:22-CV-02016-LTB)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Patrick M. Zimmer, proceeding pro se, appeals the district court’s summary
dismissals of his six nearly identical complaints on the grounds they were frivolous,
malicious, and abusive. See 28 U.S.C. § 1915(e)(2)(b)(i). Exercising jurisdiction
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the appellant’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The 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 This order and judgment is not binding precedent,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.
Appellate Case: 22-1270 Document: 010110778141 Date Filed: 12/06/2022 Page: 2
under 28 U.S.C. § 1291, we affirm and dismiss the appeals as frivolous. We deny his
request to proceed in forma pauperis (“ifp”) on appeal. 1
I. BACKGROUND
Mr. Zimmer filed six civil actions against Magistrate Judge Gallagher, each (1)
alleging that Magistrate Judge Gallagher’s actions and orders in a separate case
violated his rights under the Fourteenth Amendment, and (2) seeking five million
dollars in damages.
The district court summarily dismissed the cases, stating they “appear to be
nothing more than an attempt to manipulate the assignment of judges in Plaintiff’s
cases” and “are malicious and abusive for that reason.” ROA at 9-11. It further
stated that sovereign immunity bars a claim asserted against a federal officer in his
official capacity, and absolute immunity bars suits seeking money damages against
judges exercising their judicial discretion.
Mr. Zimmer filed a notice of appeal. The district court denied leave to appeal
ifp under 28 U.S.C. § 1915(a)(3), which provides that “[a]n appeal may not be taken
in forma pauperis if the trial court certifies in writing that it is not taken in good
faith,” as the district court did here.
1
Because Mr. Zimmer appears pro se, “we liberally construe his filings, but
we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir.
2013).
2
Appellate Case: 22-1270 Document: 010110778141 Date Filed: 12/06/2022 Page: 3
II. DISCUSSION
We review the district court’s dismissal of claims as frivolous under 28 U.S.C.
§ 1915(e)(2)(b)(i) for abuse of discretion. See Fogle v. Pierson, 435 F.3d 1252, 1259
(10th Cir. 2006). If the frivolousness determination turns on an issue of law, our
review is de novo. Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003).
Mr. Zimmer argues that under Harper v. McDonald, 679 F.2d 955 (D.C. Cir.
1982), cases brought under the constitutional amendments are not frivolous. Aplt.
Br. at 2. Beyond stating that oral argument will not be necessary, he leaves the rest
of the pro se appeal brief form blank. Id. at 3-4.
The district court did not abuse its discretion. When a plaintiff proceeds ifp
before the district court, 28 U.S.C. § 1915 requires judges to dismiss the proceeding
“at any time if the court determines” that it “is frivolous or malicious.” 28 U.S.C.
§ 1915(e)(2). Rather than appeal the district court’s unfavorable ruling in his
separate case, Mr. Zimmer filed six suits against Magistrate Judge Gallagher. The
district court did not abuse its discretion in concluding that these suits were
“frivolous, malicious, and abusive.” ROA at 9.
Mr. Zimmer’s reliance on Harper v. McDonald is unavailing. In Harper, the
D.C. Circuit explained that the district court possessed jurisdiction over claims made
“directly under the Constitution” when, unlike Mr. Zimmer’s claims here, they were
neither “wholly insubstantial nor frivolous.” 679 F.2d at 956 (quotations omitted).
Because Mr. Zimmer lists no other issues on these appeals, any other
arguments he made before the district court are waived. See Burke v. Regalado, 935
3
Appellate Case: 22-1270 Document: 010110778141 Date Filed: 12/06/2022 Page: 4
F.3d 960, 995 (10th Cir. 2019) (“The failure to raise an issue in an opening brief
waives that issue.” (quotations omitted)). And even if Mr. Zimmer had properly
presented other arguments in this appeal, we agree with the district court that
sovereign immunity and absolute immunity shield Magistrate Judge Gallagher from
suit. See United States v. Mitchell, 463 U.S. 206, 212 (1983); Andrews v. Heaton,
483 F.3d 1070, 1076 (10th Cir. 2007).
III. CONCLUSION
We affirm the district court's dismissal of the six actions as frivolous, dismiss
these appeals as frivolous, and assess a strike against Mr. Zimmer under the Prisoner
Litigation Reform Act. See 42 U.S.C. § 1997(e). 2 Because Mr. Zimmer fails to show
“the existence of a reasoned, nonfrivolous argument on the law and facts in support
of the issues raised in his action,” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312
(10th Cir. 2005), we deny his motion for leave to proceed ifp on appeal. Mr. Zimmer
is obligated to pay the filing fee in full for each of his appeals. 3
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
2
Because Mr. Zimmer has accrued more than three strikes, he may no longer
proceed ifp in any civil action filed in federal court unless he is in imminent danger
of physical injury. 28 U.S.C. § 1915(g); see also Thompson v. Gibson, 289 F.3d
1218, 1222-23 (10th Cir. 2002).
3
Mr. Zimmer’s Notice, filed on November 28, 2022, does not raise
meritorious arguments or alter this disposition.
4