Marjenhoff v. New Mexico State Police

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 17, 2015
Elisabeth A. Shumaker
Clerk of Court
BRUCE MARJENHOFF,
Plaintiff - Appellant,
v. No. 14-2177
(D.C. No. 1:14-CV-00364-LH-WPL)
NEW MEXICO STATE POLICE; FNU (D. N.M.)
JENKINS, Sergeant, New Mexico State
Police; APRIL SILVERSMITH,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.
Bruce Marjenhoff is unhappy about a speeding conviction. He appeals for
relief from the district court’s order dismissing his amended complaint without
prejudice.1 He reargues the merits of his case at length, but fails to address the
determinative procedural issue. We affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Our jurisdiction derives from 28 U.S.C. § 1291.
In 2013, Marjenhoff was issued a speeding ticket by Sergeant Jenkins, a
New Mexico state police officer. Following trial, April Silversmith, a New Mexico
state magistrate judge, found Marjenhoff guilty of speeding. He appealed from that
decision to a New Mexico district court. On April 7, 2014, state district judge, Louis
E. DePauli, Jr., dismissed the appeal because it was untimely. That ended matters in
state court.
On April 17, 2014, Marjenhoff brought this federal action under 28 U.S.C.
§ 1983. He alleged the New Mexico State Police and Sergeant Jenkins violated his
civil rights by issuing him the speeding ticket and Magistrate Judge Silversmith and
Judge DePauli violated his due process rights in resolving the case against him.2 He
requested the following relief: (1) a written apology; (2) repayment of $241 in state
court costs; (3) removal of the points assessed against his driver’s license; (4) federal
court costs; and (5) no retaliation. See R. Vol. 1 at 13.
The district judge ultimately dismissed the complaint because it failed to state
a claim upon which relief could be granted as to Sergeant Jenkins3 and Magistrate
Judge Silversmith was entitled to judicial immunity.4 The dismissal was without
2
Marjenhoff eventually moved and the court granted his motion to dismiss
Judge DePauli.
3
The judge relied on Heck v. Humphrey, 512 U.S. 477, 487 (1994).
4
See 28 U.S.C. § 1915(e)(2) (The court must screen an IFP case and “dismiss
the case . . . if the court determines that . . . the action or appeal [] (1) is frivolous or
malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.”).
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prejudice and Marjenhoff was afforded the opportunity to file an amended complaint,
which he did. However the amendment failed to cure the defects in the original
complaint so it was dismissed as well, again without prejudice.
“Like dismissals under Rule 12(b)(6), we review de novo a district court’s . . .
dismissal pursuant to 28 U.S.C. § 1915(e)(2) in an in forma pauperis proceeding.”
Vasquez Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009). Because
Marjenhoff is pro se, we liberally construe his pleadings. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). But we do not act as his advocate. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Unfortunately, Marjenhoff never
explains why the dismissals for failure to state a claim were error. Instead, he
retreats to arguing the merits of the underlying speeding case decided against him.
The failure to argue or explain any error on the relevant issues means Marjenhoff has
forfeited his right to appellate review. See Yang, 525 F.3d at 927 n.1 (holding pro se
litigants are required to comply with the requirements of the Federal Rules of
Appellate Procedure).
Affirmed. The district court granted Marjenhoff’s motion to proceed IFP on
appeal. We have not revisited the matter, but only prepayment of fees is excused.
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Marjenhoff is required to immediately pay all filing and docketing fees to the clerk of
the district court.5
Entered for the Court
Terrence L. O’Brien
Circuit Judge
5
In their response brief, appellees request their “attorney’s fees and costs for
defending against this frivolous appeal.” Aplee. Br. at 6. We deny the request
because there is not a “separately filed motion” as required by Fed. R. App. P. 38.
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