Sardakowski v. Ivandick , 653 F. App'x 596 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 23, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JAMES SARDAKOWSKI,
Plaintiff - Appellant,
v. No. 16-1140
(D.C. No. 1:16-CV-00232-LTB)
MARK IVANDICK, in his official (D. Colo.)
capacity; RANDY CHAPMAN, in his
official capacity; JOHN DOE, in his
official capacity; DISABILITY LAW
COLORADO,
Defendants - Appellees.
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ORDER AND JUDGMENT*
_________________________________
Before KELLY, HOLMES, and MORITZ, Circuit Judges.
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James Sardakowski appeals the district court’s dismissal of his civil action as
frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i) (requiring court to screen in forma
pauperis (IFP) complaint and dismiss if court determines action is frivolous).
Because Sardakowski proceeds pro se on appeal, we liberally construe his filings. See
*
After examining Sardakowski’s brief and the appellate record, this panel has
determined unanimously to honor Sardakowski’s request for a decision on the brief
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But
we won’t act as his advocate. See id.
A claim is legally frivolous if it alleges the “infringement of a legal interest
which clearly does not exist.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Here,
Sardakowski’s amended complaint alleges that the defendants violated 42 U.S.C.
§ 10801 by failing to investigate Sardakowksi’s previous allegations of abuse.1 The
district court characterized this claim as frivolous, reasoning that the Protection and
Advocacy for Individuals with Mental Illness (PAIMI) Act of 1986, 42 U.S.C.
§§ 10801-10851, doesn’t “provide a private cause of action to an individual such as”
Sardakowski. R. 37.
On appeal, Sardakowski argues that because the defendants “are funded by”
§ 10801, they “are required to investigate [his] claims of abuse.” Aplt. Br. 3. Thus, he
maintains, the district court erred in concluding that his complaint “asserts the
violation of a legal interest that does not exist.” Id. at 4. But Sardakowski doesn’t
challenge the district court’s finding that the PAIMI Act doesn’t provide a private
cause of action for individuals like him. So he has waived any challenge to that
finding. See City of Colorado Springs v. Solis, 589 F.3d 1121, 1135 n.5 (10th Cir.
2009).
1
Liberally construed, Sardakowski’s original complaint also asserted a 42
U.S.C. § 1983 claim. But Sardakowski abandoned that claim in his amended
complaint. And he doesn’t address it on appeal. Thus, we confine our analysis to his
§ 10801 claim.
2
Because Sardakowski has waived any challenge to the district court’s basis for
dismissing his action as frivolous, we affirm. See Nixon v. City & Cty. of Denver, 784
F.3d 1364, 1369 (10th Cir. 2015) (affirming district court’s dismissal of claim
because appellant’s opening brief failed to challenge district court’s basis for
dismissal). And while we grant Sardakowski’s motion to proceed IFP on appeal, we
remind him of his obligation to continue making payments until the filing fee is paid
in full. See § 1915(b).
Entered for the Court
Nancy L. Moritz
Circuit Judge
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