Ferguson v. Jefferson County ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 3, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
THEODORE R. FERGUSON,
Plaintiff - Appellant,
v. No. 18-1461
(D.C. No. 1:18-CV-01828-LTB)
JEFFERSON COUNTY SHERIFF'S (D. Colo.)
OFFICE; SECURUS TECHNOLOGIES,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
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Pro se plaintiff/appellant Theodore Ferguson filed this case when he was
incarcerated at the Jefferson County jail in Colorado. The district court dismissed his
amended complaint as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and entered
judgment against him. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.1
*
This order and judgment is not binding precedent, except under the doctrines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.
1
Because Mr. Ferguson is pro se, we liberally construe his filings but do not
act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
I. BACKGROUND
Mr. Ferguson filed the original complaint along with four other plaintiffs. ROA
at 5-16. The district court dismissed the other plaintiffs for failure to prosecute and to
cure deficiencies in the original filing. Id. at 30-32. Mr. Ferguson was ordered to file an
amended complaint to clarify his claim. Id. at 33-38.
Mr. Ferguson’s amended complaint alleged that the Jefferson County Sheriff’s
Office and Securus Technologies, the contractor that manages financial accounts for the
jail, improperly disclosed inmates’ personal identification numbers (e.g., date of birth),
shared inmates’ private financial information, and failed to disclose policies and practices
about disclosure of that information. Id. at 39-51. The district court dismissed the
amended complaint as legally frivolous, ruling as follows:
1. 12 U.S.C. § 1884 claim – The statute provides that “[a] bank or savings and loan
association which violates a rule promulgated pursuant to this chapter shall be
subject to a civil penalty which shall not exceed $100 for each day of the
violation.”
The district court held this claim fails because (1) the statute applies only to a bank
or a savings and loan association and neither defendant is a bank or a savings and
loan, and (2) the amended complaint has not identified any rule promulgated under
Chapter 19 of Title 12 of the United States Code that the defendants may have
violated. Id. at 60-61.
2. 12 U.S.C. § 3417 claim – This statute provides for civil penalties for “[a]ny
agency or department of the United States or financial institution obtaining or
disclosing financial records contained therein in violation of” the Right to
Financial Privacy Act. 12 U.S.C. § 3417(a). The Right to Financial Privacy Act
“prohibits a financial institution from disclosing a customer’s financial records . . .
to a governmental authority unless either the customer authorizes the disclosure of
such information or the government obtains a valid subpoena or warrant. Neece v.
IRS, 96 F.3d 460, 462 (10th Cir. 1996) (quotations omitted). “‘Government
authority’ means any agency or department of the United States, or any officer,
employee, or agent thereof.” 12 U.S.C. § 3401(3).
2
The district court held this claim fails because the amended complaint did not
allege that either defendant, even if they are “financial institution[s],” had
disclosed his financial records to an agency or department of the United States. Id.
at 61.
3. 15 U.S.C. §§ 6801, 6802, 6803, 6805 claims – These statutes protect against
disclosures of nonpublic information by financial institutions.
The district court held the amended complaint did not allege facts showing a
violation of these statutes or that he is entitled to relief based on a violation of
these statutes. Id. at 61-62.2
The district court certified under 28 U.S.C. § 1915(a)(3) that an appeal would not
be taken in good faith and therefore denied Mr. Ferguson in forma pauperis status to take
his appeal. Id. at 62.
II. DISCUSSION
In his brief on appeal, Mr. Ferguson argues that the Sheriff’s Office and Securus
Technologies are financial institutions. Aplt. Br. at 2-4. He cites 15 U.S.C. § 6805,
12 C.F.R. § 1016.3, and 31 C.F.R. § 14.1. Id. at 2. This argument appears to concern his
claims under 12 U.S.C. § 3417 and 15 U.S.C. §§ 6801 et seq. But, as the district court
held, even if the defendants are financial institutions, the amended complaint failed to
allege facts showing a statutory violation on which to base a claim. Our review of the
amended complaint leads us to agree, for substantially the same reasons the district court
stated, that the amended complaint should be dismissed as legally frivolous.
2
The amended complaint is laden with citations to federal statutes and
regulations. In its dismissal order, the district court attempted to sort out the possible
statutory bases for Mr. Ferguson’s claims. We have carefully reviewed the amended
complaint find no reason to disagree with the district court’s efforts.
3
Mr. Ferguson also appears to argue that the district court should not have
dismissed his amended complaint without requiring the defendants to file an answer.
Aplt. Br. at 3. But because Mr. Ferguson was granted leave to proceed ifp in district
court under 28 U.S.C. § 1915, see ROA at 60, the court acted within its authority to
dismiss the amended complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), which
states that “the court shall dismiss the case at any time if the court determines that the
action or appeal is frivolous.”
III. CONCLUSION
We affirm the district court’s judgment. Because Mr. Ferguson has not advanced
a “reasoned, nonfrivolous argument” on appeal, see Lister v. Dep’t of the Treasury, 408
F.3d 1309, 1312 (10th Cir. 2005), we also deny his request to proceed ifp, which means
that payment is due on his filing fee.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
4