Barrus v. Hopf , 229 F. App'x 791 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
June 26, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
TO M W . BA RR US,
Plaintiff - Appellant,
v.
NA NC Y A . HO PF; CH RISTINE E. No. 07-1042
SCH OBER; AM Y E. RICH ARD S; (D.C. No. 06-CV-1832-BNB)
JA CQ U ELIN E R . G U ESN O ; (D . Colo.)
STEPHEN B. M cCRO HA N; JAM ES
F. O’CO NNOR; and DAVID S.
K A PLA N,
Defendants - Appellees.
OR DER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Tom W. Barrus appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 action and moves to proceed in forma pauperis. Because Barrus seeks
intervention in a state criminal court proceeding, the district court held that his
claim is barred by Younger v. Harris, 401 U.S. 37 (1971). W e have jurisdiction
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 32.1.
pursuant to 28 U.S.C. § 1291. 1 W e GRANT the motion to proceed in forma
pauperis and DISM ISS the appeal.
Barrus is a pretrial detainee at the Arapahoe County Detention Facility in
Centennial, Colorado. He filed an amended pro se complaint in federal district
court, alleging violations of his Sixth Amendment rights to counsel and a speedy
trial in connection with criminal proceedings against him in Colorado. Finding
that Barrus sought intervention in a pending state court criminal proceeding, the
district court dismissed his complaint as barred by Younger.
Barrus concedes that Younger controls his case, but contends that the
district court erred in its application of that doctrine. See Younger, 401 U.S. at
46. Specifically, he argues that the excessive length of his pretrial detention is
the relevant irreparable injury. He claims the district court erred in treating the
pending state court trial as his claimed injury and in failing to consider “the bad
faith or harassment exception of Younger.”
W e review de novo a district court’s abstention under Younger. Joseph A .
ex rel. W olfe v. Ingram, 275 F.3d 1253, 1266 (10th Cir. 2002). Under the
Younger abstention doctrine, federal courts should ordinarily refrain from
1
Although Barrus’ notice of appeal was filed more than 30 days after the
district court entered the order dismissing his claim, his appeal is timely under
Fed. R. Civ. P. 58(b)(2)(B). Because the district court did not enter a separate
Rule 58 judgment, we deem the judgment to have been entered 150 days from the
entry of the order. Barrus’ notice of appeal was filed within 150 days of the entry
of the order.
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interfering in ongoing state criminal proceedings. 401 U.S. at 45. To justify
intervention, a plaintiff must face irreparable injury that is both great and
immediate. Id. at 46. “Certain types of injury, in particular, the cost, anxiety,
and inconvenience of having to defend against a single criminal prosecution,” are
not irreparable injuries. Id. Although Barrus claims the length of his pretrial
detention constitutes an irreparable injury, he has not shown that his detention is
excessive or otherwise impermissible. In other words, he has failed to claim any
special threat to his liberties beyond those normally associated with a criminal
prosecution.
In addition, Barrus seeks to proceed on appeal in forma pauperis. Pursuant
to 28 U.S.C. § 1915(a)(3), the district court denied his motion because it found
that an appeal could not be taken in good faith. On his renew ed motion before
this court, we conclude that his argument that we consider the length of his
pretrial detention is nonfrivolous. See M cIntosh v. U.S. Parole Comm’n, 115
F.3d 809, 812 (10th Cir. 1997). W e GRANT Barrus’ motion to proceed in forma
pauperis, and DISM ISS his appeal. Barrus remains obligated to comply with our
order of M ay 24, 2007, assessing partial payments. W e DISM ISS all other
pending motions.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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