Flores v. United States Attorney General , 442 F. App'x 383 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
October 17, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ERIC FLORES,
Plaintiff-Appellant, No. 11-1277
v. (D. of Colo.)
UNITED STATES ATTORNEY (D.C. No. 1:11-CV-01036-LTB)
GENERAL, UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, and SIERRA
MEDICAL CENTER,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Plaintiff-Appellant Eric Flores filed a pro se suit in the District of
Colorado, alleging government agents and foreign diplomatic officials used high-
tech satellites to torture him and members of his family. The district court denied
*
This order and judgment is not binding precedent except under the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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
his claims as frivolous. Exercising our jurisdiction under 28 U.S.C. § 1291, we
AFFIRM the decision of the district court.
I. Background
Flores is a Colorado state prisoner incarcerated at the Pueblo County Jail.
He initiated this action by filing a pro se Prisoner Complaint pursuant to 28
U.S.C. § 1343 and 42 U.S.C. § 1983 in the District of Colorado. The district
court dismissed his complaint on the grounds that it was legally frivolous. Flores
filed this appeal, along with a motion to proceed in forma pauperis. He also filed
a “Notice for Leave to Proceed Informa Pauperis on Petition for Writ of Certiorari
to the United States Supreme Court Before a Judgment is Entered in the United
States Court of Appeals for the Tenth Circuit.” Because we construe complaints
from pro se litigants liberally, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991), we interpret his notice as a motion for leave to proceed in forma pauperis
on a 28 U.S.C. § 2101(e) motion.
II. Discussion
Flores alleges federal employees have violated his constitutional rights and
those of his family members. In his brief he alleges:
The plaintiff is proceeding informa pauperis and pro se as a
representative party on behalf of his immediate relatives to complain
against diplomatic persons of another nation that have solicited an
organized group of executive employees of the federal government
that are persons of white American national origin whom reside in
the geographic location of Denver Colorado, to use advanced
technology with a direct signal to the satellite in outerspace that has
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the capability of calculateing [sic] a genetic code to cause the
plaintiff and his immediate relatives whom are designated as a
protected class of Mexican American citizens of the United States
that reside in the geographic location of El Paso Texas, severe pain
for long durations exceeding calendar years which was equivalent in
intensity to organ failure or impairment of body functions resulting
in the wrongful death of Jorge Salas, Mary Salas, and Javier Flores
Junior the deceased members of this cause of action.
Aplt. Br. at 12.
Flores also alleges the government used the technology to control and harm
his family members. Id. at 13–14. He claims that,
on June 17, 2011 the complained about executive employees of the
federal government simulated the legal process to deprive the
plaintiff and his immediate relatives of equal protection of law by
electronically fileing [sic] frivolous documents resembleing [sic]
legitimate court actions which falsely portrayed to dismiss the
plaintiffs complaint to cause the clerk to close the case.
Id. at 11. June 17 is the date the district court’s judgment was entered.
Flores requests the following avenues of relief. First, a preliminary
injunction to prevent federal employees from further torturing Flores and his
family. Second, a certification of this case to the United States Supreme Court
before this court rules on the merits. Third, a remand to the district court with
instructions to determine whether a permanent injunction is warranted.
Eighteen U.S.C. § 1915(e)(2)(B)(i) requires us to dismiss a case filed in
forma pauperis that is “frivolous.” A complaint is frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). A case is not frivolous simply because it alleges facts that are “unlikely.”
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Denton v. Hernandez, 504 U.S. 25, 33 (1992). Rather, the facts alleged must
“rise to the level of the irrational or the wholly incredible,” id., or depict
“fantastic or delusional scenarios,” Neitzke, 490 U.S. at 328.
Flores’s complaint rises to this level. The district court did not err in
dismissing the complaint as legally frivolous.
We advise Flores that the district court’s dismissal for frivolousness counts
as a “prior occasion” or “strike,” under 18 U.S.C. § 1915(g). Flores “is reminded
that if he accrues three strikes, he will no longer be able to proceed in forma
pauperis in any civil action filed in a federal court unless he is in imminent
danger of physical injury.” Thompson v. Gibson, 289 F.3d 1218, 1223 (10th Cir.
2002) (citing § 1915(g)).
III. Conclusion
Because Flores’s complaint is frivolous, the judgment of the district court
is AFFIRMED, and his motion to proceed in forma pauperis is DENIED. Flores
is directed to pay the entire filing fee immediately. His motion to proceed in
forma pauperis on a 28 U.S.C. § 2101(e) motion is DISMISSED as moot because
this court has now entered a judgment.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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