Mitchell v. McGovern

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 16, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
PAUL A. MITCHELL,
Plaintiff - Appellant,
v. No. 15-1109
(D.C. No. 1:15-CV-00374-LTB)
KAREN MCGOVERN, in her individual (D. Colo.)
capacity as Current Program Director of
the Colorado Medical Board; CHERYL
HARA, in her individual capacity as
Former Program Director of the Colorado
Medical Board,
Defendants - Appellees.
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ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
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Paul Mitchell, proceeding pro se,1 appeals the district court’s dismissal of his
claims against Cheryl Hara and Karen McGovern (“Defendants”). He also requests
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Because Mitchell is proceeding pro se, we construe his filings liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
leave to proceed on appeal in forma pauperis. Exercising jurisdiction under 28
U.S.C. § 1291, we conclude that this appeal is frivolous and dismiss.
I
Mitchell alleges that Hara, as former Program Director for the Colorado
Medical Board (“CMB”), improperly suspended his medical license in 2007.
Additionally, he claims that McGovern, as current Program Director for the CMB,
has informed him that his suspension will not be lifted until he complies with a 2007
order requiring that he undergo an evaluation by the Colorado Physician Health
Program. He asserts that Defendants have violated his rights under 42 U.S.C.
§§ 1981, 1983, and 1985(3), and requests injunctive, declaratory, and other relief.
The violations Mitchell alleges include, inter alia, that Defendants discriminated
against him because of his race; that the process through which his license was
terminated was substantively and procedurally flawed; and that Defendants illegally
interfered with his contractual relationships.
The district court dismissed Mitchell’s complaint as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) because Mitchell failed to allege facts that demonstrate that
the Defendants are responsible for the suspension of his license, or can provide his
requested relief (the reversal of that suspension). It also dismissed as frivolous
Mitchell’s claims against Hara as untimely and repetitive of prior litigation. Mitchell
appealed. After filing his opening brief, Mitchell filed two motions seeking to
expedite and supplement his appeal.
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II
We review a district court’s dismissal under § 1915(e)(2)(B)(i) for abuse of
discretion when the frivolousness determination does not turn on an issue of law.
See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). We conclude that the
district court did not abuse its discretion in this regard. On appeal, Mitchell does not
advance a reasoned challenge to the district court’s determination that he failed to
allege necessary facts. He contends that he need not show that defendants are
members of the CMB; that Hara, not the CMB, suspended his license; and that his
having alleged deprivations of constitutional rights makes immaterial whether
Defendants can provide his requested relief. But these bald assertions, without
further support, do not cure his defective complaint. Because Mitchell’s failure to
allege supporting facts constituted a sufficient basis for the district court to dismiss
his complaint as frivolous, we need not address his challenge to the district court’s
additional determination that his claims against Hara are untimely and repetitive of
prior litigation.
Mitchell also moves to supplement and expedite his appeal but does not
meaningfully explain why either process would be warranted. He appears to contend
that the district court’s order dismissing his case was fraudulently authored by a
judge other than the presiding judge. His evidence for this contention is the court’s
denial of his motion to certify authorship of the order dismissing his case. We do not
so construe the denial of Mitchell’s highly unusual motion.
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III
Because Mitchell’s appeal is frivolous, we DISMISS pursuant to
§ 1915(e)(2)(B). For the same reason, we DENY his motion to proceed in forma
pauperis. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Mitchell’s motions to supplement and expedite his appeal are also DENIED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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