Tillotson v. McCoy

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 13, 2014
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
CHRIS TILLOTSON,
Plaintiff - Appellant,
v. No. 14-1003
(D.C. No. 1:13-CV-03421-LTB)
T.J. McCOY, (D. Colo.)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
After examining Appellant’s brief and the 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.
Proceeding pro se, Chris Tillotson appeals the dismissal of the civil rights
action he brought pursuant to 42 U.S.C. § 1983. In the complaint, filed on
*
This order and judgment is not binding precedent except under the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.
December 18, 2013, Tillotson alleged Defendant, a police officer, injured him
during an arrest. He also asserted a claim of false imprisonment. In his request
for relief, Tillotson stated: “The only relief that I am asking for is to have my
charges dropped or reduced so I can put this mess behind me.”
The district court dismissed Tillotson’s § 1983 complaint without
prejudice, concluding the remedy Tillotson seeks is only available to him in an
action for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 504
(1973). To the extent Tillotson’s claims implicitly challenge the validity of his
state conviction, the district court dismissed those claims as barred by Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994) (“In order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused
by actions whose unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.”).
Having reviewed the record, Tillotson’s appellate brief, and the applicable
law, we conclude the dismissal of Tillotson’s § 1983 complaint without prejudice
was proper. Accordingly, finding no reversible error, we affirm the district
court’s dismissal of Tillotson’s complaint for substantially the reasons stated in
the district court’s order dated December 23, 2013.
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Tillotson has also filed a motion seeking to proceed in forma pauperis on
appeal. We cannot grant his motion unless he is able to “show a financial
inability to pay the required filing fees and the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). In light
of the district court’s clear and concise order and the absence of any reasoned
argument in Tillotson’s appellate brief, this court concludes Tillotson’s appeal is
frivolous. 1 Because Tillotson’s appeal is frivolous, his motion to proceed in
forma pauperis is denied. Tillotson is reminded of his responsibility to
immediately remit any unpaid balance of the appellate filing fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
Tillotson is confined at the Colorado Mental Health Institute in Pueblo,
Colorado. Because we conclude Tillotson’s appeal is frivolous, it is unnecessary
to determine whether he is a prisoner within the meaning of the Prison Litigation
Reform Act.
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