Vasquez Arroyo v. Sebes ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
October 8, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MARTIN VASQUEZ ARROYO,
Plaintiff-Appellant,
v. No. 08-3132
(D.C. No. 08-CV-03099-SAC)
MICHAEL SEBES, (D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Pro se Plaintiff Martin Vasquez Arroyo appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim upon
which relief may be granted. We review the court’s dismissal of his complaint de
novo. See Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996).
In his complaint, Plaintiff alleges that Defendant committed perjury when
*
This order and judgment is not binding precedent, except under the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.
After examining Plaintiff’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of 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..
testifying against Plaintiff, apparently in Plaintiff’s criminal trial. However, “all
witnesses enjoy absolute immunity from civil liability under § 1983 for their
testimony in a prior trial.” Hunt v. Bennett, 17 F.3d 1263 (10th Cir. 1994) (citing
Briscoe v. LaHue, 460 U.S. 325 (1983)). We therefore agree with the district
court that Plaintiff’s § 1983 action did not state a claim on which relief could be
granted, and we accordingly AFFIRM the district court’s dismissal of Plaintiff’s
complaint.
We advise Plaintiff that the district court’s dismissal of his complaint for
failure to state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g), and
we remind him that, upon incurring three strikes, he will no longer be able to
proceed in forma pauperis in a civil action in federal court unless he is “under
imminent danger of serious injury,” 28 U.S.C. § 1915(g). We also remind
Plaintiff of his obligation to continue making partial payments until his filing fee
has been paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
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