Fish v. Golder , 133 F. App'x 472 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 20 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
DANNY R. FISH,
Plaintiff - Appellant,
v.
No. 04-1294
GARY GOLDER, Sterling (D. Colorado)
Correctional Facility; PAUL KLINE, (D.Ct. No. 04-Z-1046)
Captain, Casemanager III, Sterling
Correctional Facility; J. YATES, LT.,
Classification Chairman, Living Unit
Supervisor; C. THOMAS, LT., Living
Unit 3 Supervisor, Sterling
Correctional Facility,
Defendants - Appellees.
____________________________
ORDER DENYING REQUEST TO PROCEED IN FORMA PAUPERIS
Before SEYMOUR, LUCERO, and O’BRIEN, 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 appeal. See F ED . R. A PP . P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is
therefore ordered submitted without oral argument.
Appellant Danny Fish is confined in the custody of the Colorado
Department of Corrections for violating the conditions of his parole. He seeks
leave to proceed on appeal in forma pauperis (ifp). We deny his request.
While detained at the prison facility in Sterling, Colorado, Fish was
charged with violating a posted operational rule when he was observed using a
“cheat sheet” during a computer class. He was convicted of the offense at an
informal hearing and was sanctioned with fourteen days of extra duty and
fourteen days of confinement. On May 21, 2004, Fish filed a pro se complaint
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 alleging, inter alia, his
confinement in a Level V facility and his transfer to a more restricted housing
unit within the facility without reclassification violated due process. A short time
later, he moved to amend his complaint to add claims under the Americans With
Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (“ADA”), and the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796l. His motion to amend was
granted.
Finding the amended complaint woefully inadequate, the magistrate judge
ordered Fish to submit another amended complaint within thirty days that would
meet the pleading requirements of Rule 8(a) of the Federal Rules of Civil
Procedure. 1 On the same day, Fish was granted leave to proceed ifp. In his third
1
FED. R. CIV. P. 8(a) provides in relevant part:
A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain
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and final amended complaint filed on June 21, 2004, Fish abandoned his ADA
and Rehabilitation Act claims, returning to his initial theory of recovery—a
violation of due process based on his transfer to a higher security unit without
reclassification.
On July 6, 2004, the district court dismissed, sua sponte, Fish’s final
complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). See
Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (holding that an action is
frivolous under § 1915(e)(2)(B)(i) if “the claim [is] based on an indisputably
meritless legal theory or if it is founded on clearly baseless factual contentions”)
(quotations omitted). The district court found Fish had not asserted a violation of
a constitutional liberty interest pursuant to Sandin v. Conner, 515 U.S. 472(1995).
Thereafter, Fish gave notice of his intent to appeal the district court’s
dismissal and requested the district court’s authorization to proceed ifp on appeal.
The district court denied his motion pursuant to § 1915(a)(3), finding his “appeal
was not taken in good faith because [he had] not shown the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal.” (Order Denying Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915statement of the grounds upon which the court’s jurisdiction depends . . . (2) a
short and plain statement of the claim showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief the pleader seeks.
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and F ED . R. A PP . P. 24 at 1.) Fish then filed this appeal, again moving to proceed
on appeal ifp.
“An appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Upon
consideration of the briefs, the record on appeal and the applicable law, we conclude
the district court correctly determined that Fish had failed to show the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues he
raises on a appeal. 2 Fish’s final complaint consists solely of conclusory allegations
and fails to present any legal theory or specific fact that could conceivably amount
to a constitutional violation. 3 Accordingly, we DENY his motion to proceed in
forma pauperis on appeal and ORDER that he pay the filing fee in full within
twenty days of this order or his appeal will be dismissed. 4
2
Appellant filed a motion for a default judgment pursuant to Rule 31(C) of the
Federal Rules of Appellate Procedure. Rule 31provides an Appellee may move for a
default judgment if the Appellant fails to file a timely brief. However, the rule also
provides that the consequences of the failure of an Appellee to file a brief is “he will not
be heard at oral argument unless the court grants permission.” There was no oral
argument in this case. Appellant’s motion is denied.
3
On appeal, Fish claims his reclassification has lengthened his parole sentence
beyond the limits of Colorado law. Not only is this argument unsupported by fact or law,
it is raised for the first time in this Court. We generally do not consider issues raised for
the first time on appeal. Parker v. Scott, 394 F.3d 1302, 1309 n.1 (10th Cir. 2005).
4
Section 1915(g) provides that a prisoner may not:
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Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
bring a civil action or appeal a judgment in a civil action or
proceeding [in forma pauperis] if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of
serious physical injury.
The district court’s dismissal of Fish’s complaint as frivolous counts as one strike
against him.
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