Wideman v. Garcia

FILED
United States Court of Appeals
Tenth Circuit
June 14, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
EUGENE WIDEMAN, JR.,
Plaintiff–Appellant,
v. No. 09-1433
(D.C. No. 1:08-CV-00966-MSK-MJW)
AMELIA GARCIA, (D. Colo.)
Defendant–Appellee.
ORDER AND JUDGMENT *
Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.
This is the fourth of five pro se appeals plaintiff-appellant Eugene
Wideman, Jr. has filed with this court. In this case, he appeals the district court’s
dismissal of his 42 U.S.C. § 1983 suit for failure to state a claim upon which
relief can be granted under Fed. R. Civ. P. 12(b)(6). Wideman sued Amelia
Garcia, the mother of his daughter, asserting that she violated his constitutional
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
rights by filing allegedly false affidavits in connection with Colorado state court
child custody and support proceedings, and allegedly conspiring with Colorado
officials to deprive him of his parental rights and personal property through the
illegal entry of child custody and support judgments. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I
To state a valid claim under § 1983, a plaintiff must allege: (1) the
violation of a constitutional or federal statutory right; and (2) that the alleged
violation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988)). The district court dismissed Wideman’s appeal
under Fed. R. Civ. Pro. 12(b)(6), holding that he had not sufficiently alleged facts
demonstrating that Garcia was acting under color of state law. Wideman v.
Garcia, No. 08-cv-00966-MSK-MJW, 2009 WL 2809419, at *2-3 (D. Colo. Aug.
28, 2009). Wideman now appeals that ruling.
We review a Rule 12(b)(6) dismissal de novo, asking whether the complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Because
Wideman appeals pro se, we construe his complaint liberally. Ledbetter v. City
of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
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After reviewing the pleadings, the evidence of record, and the applicable
law, we find no fault in the decision of the district court. Garcia was not a state
official, nor could her decision to file several family-law actions against
Wideman be plausibly read as a conspiracy with Colorado officials. We therefore
affirm the dismissal for substantially the reasons stated by that court in its Order
Granting Motion To Dismiss dated August 28, 2009.
II
We now turn to Garcia’s motion for sanctions under Fed. R. App. P. 38.
Wideman’s pro se status does not shield him from the imposition of sanctions.
See Van Sickle v. Holloway, 791 F.2d 1431, 1437 (10th Cir. 1986). Under Rule
38, “[i]f a court of appeals determines that an appeal is frivolous, it may, after a
separately filed motion or notice from the court and reasonable opportunity to
respond, award just damages and single or double costs to the appellee.” “Just
damages” may include attorney’s fees. Braley v. Campbell, 832 F.2d 1504, 1510
(10th Cir. 1987) (en banc). “An appeal is frivolous when the result is obvious, or
the appellant’s arguments of error are wholly without merit.” Id. (quotation
omitted).
Wideman’s appeal is frivolous. His appellate arguments ignore legal
precedent in favor of his own interpretation of the language of § 1983, and his
federal case against Garcia is simply another attempt to relitigate state court
proceedings that concluded years ago. His response to Garcia’s motion for
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sanctions evidences his true intent. Despite the fact that this is nominally a
§ 1983 case with Garcia as the sole defendant, he devotes two sentences of his
two-page response to arguing that his appeal is meritorious, but the remainder to
asking this court to overturn state child support and custody rulings.
While Garcia’s motion asked for double her reasonable attorney’s fees and
costs, we instead award reasonable appellate attorney’s fees and double appellate
costs. Pursuant to Fed. R. App. P. 39, Garcia must file within fourteen days an
itemized and verified statement of her costs and proof of service with the clerk of
this court. We remand to the district court for a determination of reasonable
appellate attorney’s fees. The district court shall modify its judgment
accordingly. See Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993).
III
The judgment of the district court is therefore AFFIRMED and Garcia’s
motion for sanctions is GRANTED in part. We REMAND for calculation of
appellate attorney’s fees.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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