Reyes v. State of New Mexico , 415 F. App'x 856 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
January 31, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
PAUL KEITH REYES,
Plaintiff - Appellant, No. 10-2142
v. (D. New Mexico)
STATE OF NEW MEXICO; VICTOR (D.C. No. 1:10-CV-00343-JCH-RLP)
MANUEL OLVERA, Badge No. 743;
P.O. RICO, Badge No. 814; SHAWN
MCWHETHEY MEMORIAL SUB-
STATION,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
After examining appellant’s brief and the appellate record, this court 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This order and judgment is not binding precedent except under the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.
Proceeding pro se, Paul Keith Reyes appeals the district court’s dismissal
of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. 1 Reyes
alleged he was deprived of his constitutional right to due process when
Defendants, two Albuquerque police officers, towed a vehicle from his parent’s
home. Reyes sought compensatory damages of $10 million for this alleged
constitutional violation.
The district court concluded Reyes did not have standing to raise the due
process claim because he failed to allege any facts showing he suffered an
“invasion of a legally protected interest” as a result of Defendants’ actions.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). By his own admission,
he does not have an ownership interest in the vehicle or the home from which it
was towed. Accordingly, the court dismissed Reyes’s complaint with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B). The court also informed Reyes of its
intention to impose filing restrictions on him. In response, Reyes requested that
the district judge disqualify herself because she had previously ruled in other
cases involving him and he “suspect[ed]” she was biased in her decision-making.
1
Although Reyes’s pleadings also reference Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) , he has not asserted
any claims against any federal actors. See Romero v. Peterson, 930 F.2d 1502,
1506 (10th Cir. 1991) (“To state a Bivens action, plaintiff must allege
circumstances sufficient to characterize defendants as federal actors.”).
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In a separate order, the court refused to disqualify herself and imposed filing
restrictions.
The matter before this court involves Reyes’s application for a certificate
of appealability, his appeal of the district court’s order of dismissal, his appeal of
the district judge’s refusal to disqualify herself, and his request to proceed on
appeal in forma pauperis. 2 Because this is a § 1983 action and not a habeas
corpus action, Reyes does not need a certificate of appealability to proceed and
we deny his application for a certificate of appealability as moot. After careful
review of Reyes’s appellate brief and the entire appellate record, it is clear the
district court properly concluded he lacks standing to pursue the claims raised in
his complaint. It is equally clear that the district court judge did not abuse her
discretion in denying Reyes’s request that she recuse herself. See United States
v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006) (Recusal is “appropriate only
where a reasonable person, were he to know all the circumstances, would harbor
doubts about the judge’s impartiality.”). Reyes’s appeal is “without merit in that
it lacks an arguable basis in either law or fact.” Thompson v. Gibson, 289 F.3d
1218, 1222 (10th Cir. 2002). We, thus, dismiss the appeal as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i). We also deny Reyes’s motion to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and remind him of his
2
Reyes does not raise any appellate challenge to the imposition of the filing
restrictions.
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responsibility for the immediate payment of any unpaid balance of the appellate
filing fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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