Banks v. McFarland , 12 F. App'x 873 ( 2001 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 13 2001
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    ROY DALE BANKS,
    Plaintiff-Appellant,
    v.
    No. 01-3052
    (FNU) MCFARLAND; (FNU) SIX;                        (District of Kansas)
    (FNU) ALLEGRUCCI; (FNU)                        (D.C. No. 01-CV-3021-GTV)
    FROMME; (FNU) LOCKETT; (FNU)
    MILLER; JOHN DOE, Kansas
    Supreme Court Justices,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before HENRY, BRISCOE, and MURPHY, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    *
    This order and judgment is not binding precedent, except under the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. 36.3.
    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.
    Roy Dale Banks, an inmate proceeding pro se and in forma pauperis,
    appeals the district court’s dismissal of his 
    42 U.S.C. § 1983
     civil rights
    complaint. In his complaint, Banks named as defendants various justices of the
    Kansas Supreme Court who had participated in handing down the following three
    decisions: State v Colbert, 
    769 P.2d 1168
     (Kan. 1989); State v. Davis, 
    605 P.2d 572
     (Kan. 1980); and State v. Robertson, 
    592 P.2d 460
     (1979). Banks alleged that
    these judicial decisions imposed an unconstitutional subjective standard for
    evaluating the dangerous-weapon element of aggravated robbery. He sought a
    declaratory judgment that this test violated clearly established constitutional
    rights and an injunction to prevent further usage of the subjective standard to the
    offense of aggravated robbery.
    The district court dismissed Banks’ complaint as frivolous pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B). To the extent that Banks’ complaint stated a freestanding
    challenge to the decisions listed above, none of which involved Banks, the district
    court noted that it lacked Article III jurisdiction to consider the complaint. On
    the other hand, to the extent that Banks was instead contending that the
    application of these decisions caused him to be unconstitutionally convicted of
    aggravated robbery, the district court noted that Banks’ remedy lies in a petition
    -2-
    for writ of habeas corpus filed under 
    28 U.S.C. § 2254
    . See Preiser v. Rodriquez,
    
    411 U.S. 475
    , 489 (1973) (holding that § 2254 habeas corpus petition is the
    exclusive remedy where a state prisoner challenges the fact or duration of his
    confinement).
    On appeal, Banks merely reasserts the same arguments he advanced in the
    district court. It is absolutely clear, however, that Banks lacks standing to lodge a
    generalized challenge to the defendants’ application of a subjective standard to
    the dangerous-weapon element of aggravated robbery. See Schaffer v. Clinton,
    
    240 F.3d 878
    , 882 (10th Cir. 2001) (setting forth elements of standing). Banks
    does allege in his appellate brief that the “‘subjective test’ had a direct
    infringement to plaintiff’s aggravated robbery conviction.” This assertion of
    injury in fact merely serves to demonstrate the district court’s conclusion that
    Banks’ sole remedy lies in a § 2254 habeas corpus petition. See Preiser, 
    411 U.S. at 489
    .
    In light of the district court’s clear explanation of the controlling law in its
    order of dismissal, this court concludes that Banks’ appeal is frivolous. See 
    28 U.S.C. § 1915
    (e)(2)(B)(i). Both the district court’s dismissal of the complaint
    and this court’s dismissal of the appeal count as strikes under § 1915(g). See
    Jennings v. Natrona County Det. Ctr., 
    175 F.3d 775
    , 780 (1999). Banks is hereby
    warned that if he accrues one more strike, he will be precluded from proceeding
    -3-
    in forma pauperis in any further civil proceedings unless he is under “imminent
    danger of serious physical injury.” 
    28 U.S.C. § 1915
    (g). Banks is further
    notified that despite this court’s dismissal of his appeal, he remains obligated to
    continue making partial payments until his appellate filing fee is paid in full. See
    
    id.
     § 1915(b).
    For those reasons set out above, this appeal is hereby DISMISSED.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
    -4-
    

Document Info

Docket Number: 01-3052

Citation Numbers: 12 F. App'x 873

Judges: Henry, Briscoe, Murphy

Filed Date: 6/13/2001

Precedential Status: Non-Precedential

Modified Date: 11/5/2024