Ray v. Garth , 616 F. App'x 373 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 7, 2015
Elisabeth A. Shumaker
Clerk of Court
AUSTIN RAY,
Plaintiff - Appellant,
v. No. 15-1318
(D.C. No. 1:15-CV-01658-LTB)
MATTHEW GARTH, Special Agent; (D. Colo.)
FOURTEEN UNKNOWN AGENTS;
DOES 1-100,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
Pro se plaintiff Austin Ray sued IRS Special Agent Matthew Garth, 14 unknown
agents, and Does 1-100 seeking relief under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Investigation, 403 U.S. 388 (1971), for violations of procedural and
substantive due process and equal protection.
* After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Mr. Ray filed his complaint on August 3, 2015. He alleged that (1) defendants
deprived him of his property when they executed a search warrant at his tax preparation
business on April 6, 2010, and seized tax preparation equipment and related items, (2) he
was entitled to a pre- and post-deprivation hearing, and (3) the seizure left him without
access to tax returns and he therefore could not timely file corrected returns to avoid
indictment for tax crimes on April 10, 2014. He requested suppression of all evidence
seized in United States v. Ray, No. 14-cr-00147-MSK-2 (D. Colo., filed Apr. 10, 2014),
and compensatory and punitive damages.
The district court dismissed the complaint as legally frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i). It determined that (1) suppression of evidence would be an improper
remedy, noting that Mr. Ray has filed a motion to suppress in his criminal proceeding; (2)
the risk of removal, concealment, or destruction of the property justified postponement of
notice and hearing until after seizure, citing Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U.S. 663, 678 (1974); and (3) Mr. Ray has not alleged that any of his property is
subject to destruction or forfeiture, and his argument about his inability to access tax
returns and make corrections to evade indictment should be made in his criminal case and
not in a Bivens action.
We review the dismissal of a complaint under 28 U.S.C. § 1915(e)(2)(B)(i) for
abuse of discretion. McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997). As
the district court did, we interpret Mr. Ray’s pro se complaint liberally. See Haines v.
-2-
Kerner, 404 U.S. 519, 520-21 (1972). In doing so, we agree with the district court that
the complaint must be dismissed as legally frivolous.
First, nowhere in his complaint or his brief to this court does Mr. Ray indicate how
the procedure afforded for his motion to suppress would be inadequate to address any
property deprivation. His complaint therefore fails to state a procedural due process
claim. See Parratt v. Taylor, 451 U.S. 527, 543 (1981), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986).
Second, the complaint also fails to state an equal protection claim because it does
not allege facts showing disparate treatment. See Kan. Penn Gaming, LLC v. Collins,
656 F.3d 1210, 1217 (10th Cir. 2011); Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th
Cir. 2011).
Third, the complaint equates the substantive due process claim with the procedural
due process claim and otherwise does not allege facts showing executive government
action that “can properly be characterized as arbitrary, or conscience shocking, in a
constitutional sense,” Cty. of Sacramento v. Lewis, 523 U.S. 833, 837 (1998), under any
case authority. It therefore fails to state a substantive due process claim.
Finally, in Ingram v. Faruque, 728 F.3d 1239 (10th Cir. 2013), this court pointed
out the Supreme Court’s reluctance to authorize actions under Bivens, especially when, as
here, there is an “alternative, existing process for protecting the interest” alleged. Id. at
1243-44.
-3-
We dismiss this appeal as frivolous and impose a strike under 28 U.S.C.
§ 1915(g). See Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 780-81
(10th Cir. 1999). We deny Mr. Ray’s request to proceed in forma pauperis; he is
therefore responsible for immediate payment of the unpaid balance of his appellate filing
fee.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
-4-