Davis v. Bacon

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 18, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ANTH ONY L. DAVIS,
Plaintiff-Appellant,
v. No. 07-3015
(D.C. No. 06-CV-3337-SAC)
CAROL J. BACON, Public D efender, (D . Kan.)
in her individual and official capacity;
RICHARD NEY, Chief Public
Defender, in his individual and official
capacity; JESSICA R. KUNEN, Chief
Appellate Defender, in her individual
and official capacity; STEVEN R.
ZIN N, Appellate Defender, in his
individual and official capacity;
REID T. NELSON, Appellate
Defender, in his individual and official
capacity; SEA N C. M C EN U LTY,
Public Defender, in his individual and
official capacity; M ICHAEL C.
BROW N, Public D efender, in his
individual and official capacity;
ROGER FALK, Appellate Public
Defender, in his individual and official
capacity; GARY W . OW EN S,
Appellate Public D efender, in his
individual and official capacity,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
*
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
(continued...)
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.
Plaintiff Anthony L. Davis, appearing pro se and in forma pauperis, filed
this civil rights suit under 42 U.S.C. § 1983, seeking damages for alleged
constitutional violations by trial and appellate public defenders involved in his
1988 state criminal proceedings and appeals. Upon reviewing plaintiff’s
complaint, the district court determined that this suit “substantially mirrored a
previously filed complaint in which plaintiff asserted the same or similar claims
against the same defendants,” and ordered plaintiff to show cause why it should
not be dismissed “as a frivolous and malicious duplicative filing.” R., Doc. 6,
at 1. After reviewing plaintiff’s response, the district court dismissed the new
complaint under 28 U.S.C. § 1915A(b)(1) “as frivolous and malicious.” Id. at 2.
Plaintiff filed a notice of appeal and a motion to proceed in forma pauperis on
appeal. Id., Docs. 8, 9. The district court granted plaintiff’s m otion to proceed in
forma pauperis on appeal. Id., Doc. 11.
W e have “not yet determined whether a dismissal pursuant to § 1915A on
the ground that the complaint is legally frivolous is reviewed de novo or for abuse
*
(...continued)
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.
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of discretion.” Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000). As in
Plunk, however, we “need not resolve that question at this juncture” because our
review of the record in both of plaintiff’s cases “reveals no hint of reversible
error under either standard.” Id.In his prior district court case, Davis v. Bacon, D.C. No. 06-3132, plaintiff
sued under 42 U.S.C. § 1983, alleging that state trial and appellate public
defenders conspired with state officials to deny him a fair trial and appeal. See
R. No. 06-3132, Doc. 1. The district court ordered plaintiff to show cause why the
complaint should not be dismissed prior to service because his allegations of
conspiracy were conclusory and insufficient to overcome the general rule that
public defenders practicing law are not state actors. Id., Doc. 4, at 2-3. After
reviewing plaintiff’s response to the show cause order, to which plaintiff attached
numerous irrelevant photocopies of articles about his boxing career, id., Docs. 6-7,
the district court concluded that plaintiff’s allegations of conspiracy were still
conclusory and insufficient to show that any of the public defenders acted under
color of state law, id., Doc. 8, at 1-2. The court dismissed the complaint under
28 U.S.C. § 1915A(b)(1) “as stating no claim upon which relief can be granted
under 42 U.S.C. § 1983.” Id., Doc. 8, at 2. The court then entered judgment.
Id., Doc. 9. Plaintiff filed a motion to alter or amend the judgment, an affidavit
and supplement, a motion for leave to amend his complaint, and a motion for leave
to file a motion for summary judgment. Id., Docs. 10-14. The district court
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denied relief in a written order, explaining that plaintiff’s allegations of conspiracy
were conclusory and insufficient to state a claim for relief. Id., Doc. 15. It does
not appear that plaintiff appealed to this court.
It is clear that the current suit substantially mirrors the prior complaint that
was dismissed. This appeal is therefore frivolous for the same reasons that
underlie the district court’s dismissal, and both this dismissal and the district
court’s dismissal count as strikes under 28 U.S.C. § 1915(g). See Thompson v.
Gibson, 289 F.3d 1218, 1222-23 (10th Cir. 2002). W e take judicial notice that the
dismissal in district court case No. 06-3132 also counts as a strike because
plaintiff did not appeal. See Jennings v. Natrona County Det. Ctr. M ed. Facility,
175 F.3d 775, 780 (10th Cir.1999); see also Green v. Nottingham, 90 F.3d 415,
418 (10th Cir. 1996) (taking judicial notice of strikes imposed by other courts).
Because plaintiff has accrued three strikes, he will no longer be able to proceed in
forma pauperis in any civil action or appeal filed in a federal court unless he “is
under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
In light of our conclusion that this appeal is frivolous, the district court’s
grant of in forma pauperis status on appeal is VACATED, and in forma pauperis
status is DENIED. See Coppedge v. United States, 369 U.S. 438, 445-46 (1962).
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Plaintiff is ordered to pay the entire appellate filing fee of $455.00 within thirty
days of the date of this order.
The appeal is DISM ISSED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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