Thompson v. Robison ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
October 21, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MAURICE L. THOMPSON,
Plaintiff - Appellant,
v. No. 14-1345
VALERIE J. ROBISON; (D.C. No. 1:14-CV-1850-LTB)
TASHA DOBBS; JOHN JONES, (D. Colo.)
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges. **
In July 2014, Plaintiff Maurice Thompson, appearing pro se, filed what he
labeled a “Notice of Claim” (NOC) in the federal district court. Plaintiff, who
apparently was incarcerated and facing criminal charges of some sort in Colorado
state court, complained of problems with Defendants Valerie Robison, Tasha Dobbs,
and John Jones, a state judge, probation officer, and police officer respectively. In
an “Affidavit of Negative Averment” attached as an exhibit to the NOC, Plaintiff
*
This order and judgment is not binding precedent except under the doctrines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 the briefs and 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); 10th Cir. R. 34.1. The case therefore is submitted
without oral argument.
wrote:
John Jones had no right to arrest me without a warrant issued which is
a constitutional wrong. Tasha Dobbs has acted in quasi-judicial
function under Pa. R. Crim. P. 702(3) is not authorized for parole
officers to do. . . . Valerie J. Robison stated in open court that my
charges are serious in a meaner unprofessional as if I didn’t stand a
chance of a fair trail in her court room. Plus she back’s the two officers
in whom she knowse have committed lawful wrongs under color of law
by allowing my current case to proceed. She also is acting as an
unlawful debt collector by denying commercial drafts and other filiants
which is a commercial injury of misapplication of the statue[,] the very
grounds for this tort. She also denies my safety from the two members
mention that I have veriest of complaints against due too their
unprofessionalism with the federal level.
Rec. at 6 (errors in original).
In the NOC itself, Plaintiff seems to indicate he originally wished to pursue
his grievances in state court but the state judge would not permit him to do so. Id.
at 3. The record contains a state district court order issued by Judge Robison
denying Plaintiff’s claims based on his failure to serve his various filings on
opposing counsel as instructed, as well as his apparent effort to pursue civil claims
in the context of his criminal prosecution:
[T]he most recent documents do not pertain to the instant criminal
charges in this case and the case law cited has no relevance to the
instant charges. There is no clear and concise request contained in the
recent filings.
Therefore, any requests contained in the three documents are hereby
denied. Not only has the Defendant failed to provide the Certificate of
Mailing/Service, but the three documents are nonsensical and do not
make any rational request of the Court.
Id. at 7–8.
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After reviewing Plaintiff’s NOC, a federal magistrate judge issued an order
directing him to “cure deficiencies.” Specifically, the magistrate judge instructed
Plaintiff as follows:
Plaintiff shall obtain (with the assistance of his case manager or the
[Mesa County Detention F]acility’s legal assistant) the Court-approved
forms for filing a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 and a Prisoner Complaint, along with the
applicable instructions, at www.cod.uscourts.gov, and shall use those
forms in curing the designated deficiencies.
Id. at 13. The order further admonished Plaintiff that failure to cure said deficiencies
within thirty days would result in dismissal of his action.
When Plaintiff failed to timely cure his deficient filings, the district court
ordered his action dismissed without prejudice. The court further certified pursuant
to § 1915(a)(3) that any appeal of the dismissal order “would not be taken in good
faith and therefore in forma pauperis [IFP] status will be denied for the purpose of
appeal.” Id. at 16. Plaintiff nevertheless appealed, asking permission to proceed
IFP. We exercise jurisdiction under 28 U.S.C. § 1291. See Moya v. Schollenbarger,
465 F.3d 444, 450 (10th Cir. 2006) (explaining that a dismissal without prejudice is
final and appealable “if a district court order expressly and unambiguously dismisses
a plaintiff’s entire action”).
Section 1915(a)(1) and (2) generally authorize us to allow an appellant to
proceed on appeal “without payment of fees or security therefor” provided such party
proves his indigent status. Where a district court certifies an appeal is not taken in
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good faith, an aggrieved party may still move for leave to proceed IFP “pursuant to
the mechanism set forth in [Fed. R. App. P.] 24(a)(5).” Rolland v. Primesource
Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007). “To do so, however, the
appellant must show not only ‘a financial inability to pay the required filing fees,’
but also ‘the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.’” Crownhart v. Muller, 575 F. App’x 834,
835 (10th Cir. 2014) (unpublished) (quoting DeBardeleben v. Quinlan, 937 F.2d 502,
505 (10th Cir. 1991)).
Even construing his various pleadings liberally, Plaintiff has not met this
requirement. In his appellate brief, Plaintiff continues to complain in a conclusory
fashion about “wrongful arrest,” “denial of fair treatment by way of the court,” and
denial of “the services that are provide[d] for all parolees.” He also cursorily claims
entitlement to monetary damages and release from incarceration. Nowhere in his
brief does he address the district court’s order directing him to cure deficiencies in
his initial filings, or the court’s subsequent order dismissing his action for failure to
do so. Instead, Plaintiff tells us the district court erred by denying his motion to
proceed IFP and dismissing his action despite an unidentified conflict of interest.
He appears to ask us to decide the merits of his claims in the first instance which, of
course, we will not do. See, e.g., United States v. Eatman, 569 F. App’x 626, 631
n.6 (10th Cir. 2014) (unpublished).
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Having thoroughly reviewed the record in this case, we have no choice but to
conclude that Plaintiff fails on appeal to present a reasoned, nonfrivolous argument
on the law and facts that would support setting aside the district court’s judgment.
Accordingly, we deny Plaintiff’s motion to proceed on appeal IFP and dismiss his
appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff is reminded
that he remains responsible for paying the full filing fee for this action as previously
assessed by the Clerk of Court.
Motion to proceed IFP DENIED; Appeal DISMISSED.
Entered for the Court
Bobby R. Baldock
United States Circuit Judge
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