Curiale v. Hawkins , 139 F. App'x 21 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 19 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH CURIALE,
Plaintiff - Appellant, No. 04-4289
v. (D.C. No. 2:03-CV-1086 PGC)
UINTAH COUNTY SHERIFF RICK (D. Utah)
HAWKINS, and CHIEF UINTAH
COUNTY DEPUTY ROBERT
VANDERBUSSE,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Joseph Curiale, proceeding pro se and in forma pauperis, appeals from the
district court’s dismissal of his claims. He seeks injunctive relief under 42 U.S.C.
§ 1983, alleging that Defendants, Uintah County Sheriff Rick Hawkins and Chief
*
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Deputy Robert Vanderbusse, violated his civil rights. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Mr. Curiale claims that Defendants violated his civil rights by (1) framing
him for unnamed actions and having him committed to a mental hospital in 1996
and 1997 and (2) making threatening statements. He alleges that on
December 15, 2003, Vanderbusse threatened him by saying, “Go in your house
now or I’ll take you in,” Aplt. Br. at 3, and on October 9, 2003, Hawkins told him
to “move out to Vernal City.” Id.
Mr. Curiale’s suit was referred to a magistrate judge, who recommended
that Defendants’ motion to dismiss be granted. The magistrate judge found that
any claims relating to Mr. Curiale’s 1996-97 commitment to the Utah State
Mental Hospital were time-barred under Utah Code Ann. § 78-12-25(2) See
Arnold v. Duchesne County, 26 F.3d 982, 985 (10th Cir. 1994); Mismash v.
Murray City, 730 F.2d 1366, 1367 (10th Cir. 1984) (“[A]ll section 1983 claims
brought in federal court in Utah are subject to the four-year limitations period
provided in Utah Code Ann. § 78-12-25.”). She also found that the alleged
threats made by Defendants were “insufficient to state a claim upon which relief
may be granted.” R. Vol. I, doc. 50 at 4. See Collins v. Cundy, 603 F.2d 825,
827 (10th Cir. 1979) (“Verbal harassment or abuse [by law enforcement] . . . is
-2-
not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”). The
district court adopted the magistrate judge’s Report and Recommendation and
granted Defendants’ motion to dismiss.
II. DISCUSSION
“We review de novo a district court's ruling on a motion to dismiss for
failure to state a claim upon which relief can be granted. Allegations in the
plaintiff's complaint are presumed true.” Miller v. Glanz, 948 F.2d 1562, 1565
(10th Cir. 1991) (internal citation omitted). We also review de novo “the district
court’s application of the statute of limitations[.]” Van Tu v. Koster, 364 F.3d
1196, 1198 (10th Cir. 2004). In applying this standard, “[w]e construe a pro se
litigant’s pleadings liberally.” Miller, 948 F.2d at 1565.
On appeal Mr. Curiale restates the same claims under 28 U.S.C. § 1983,
arguing that the magistrate judge was biased and unfair in recommending they be
dismissed. We find no error in either the magistrate judge’s application of the
statute of limitations to the claims based on Mr. Curiale’s 1996-97 commitment or
her recommendation to dismiss his claims that Defendants’ statements violated his
civil rights. These unfavorable rulings are insufficient to demonstrate judicial
bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings
alone almost never constitute a valid basis for a bias or partiality motion.”).
-3-
Mr. Curiale also appeals the denial of his motions for appointment of
counsel. “We review the denial of appointment of counsel in a civil case for an
abuse of discretion.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
“The burden is upon the applicant to convince the court that there is sufficient
merit to his claim to warrant the appointment of counsel.” McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). In determining whether to appoint
counsel, the court should consider the following factors: “the merits of the
litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s
ability to present his claims, and the complexity of the legal issues raised by the
claims.” Rucks, 57 F.3d at 979 (internal quotation marks omitted). The
magistrate judge concluded “that (1) it is not clear yet whether [Mr. Curiale] has
asserted a colorable claim; (2) the issues involved are not complex; and (3)
[Mr. Curiale] is able to adequately pursue this matter.” R. Vol. I, doc. 31 at 2-3.
We find no abuse of discretion in her denial of Mr. Curiale’s motion to appoint
counsel.
III. CONCLUSION
For substantially the same reasons set forth in the district court’s
November 17, 2004, Order and the magistrate judge’s October 25, 2004, Report
-4-
and Recommendation, we AFFIRM. Any pending motions are DENIED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-5-