Newton v. Moten

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 1 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
EDWARD RICHARD NEWTON,
Plaintiff-Appellant,
v. No. 97-2212
(D.C. No. CIV-93-994-JP)
LADON MOTEN, Individually and (D. N.M.)
as a Police Officer in the New Mexico
State Police Department; NEIL
MERTZ, Individually and as Chief
Deputy District Attorney for the
County of Socorro; JEFF LAHANN,
Individually and as Senior Trial
Prosecutor for the County of Socorro,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff seeks leave to appeal in forma pauperis the district court’s denial
of his Fed. R. Civ. P. 60(b) motion, which sought to set aside the court’s
dismissal of his civil rights action. Plaintiff, who was incarcerated, instituted the
underlying action under a false name and then failed to prosecute the action after
escaping from prison. The district court subsequently granted defendants’ motion
to dismiss, which was based on improper service, failure to prosecute, and Rule
11 violations. Almost three years later, plaintiff filed the present Rule 60(b)
motion, in which he acknowledged that he had filed the complaint under a false
name and explained that he had been unable to prosecute the action after his
escape because he was hiding from authorities. The district court denied the Rule
60(b) motion, finding both that it was not filed within a reasonable time and that
it was without merit.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), this court “shall dismiss the case
at any time if the court determines that . . . the action or appeal is frivolous or
malicious.” Based upon our review of the briefs and the record, we conclude that
the present appeal is frivolous. Therefore, plaintiff’s request to proceed in forma
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pauperis is DENIED and the appeal is DISMISSED as frivolous. Because this
appeal is frivolous under § 1915(e)(2)(B), it counts as a “prior occasion[]” under
28 U.S.C. § 1915(g). Plaintiff is hereby notified that three filings of cases that
are dismissed or affirmed on the basis that they are frivolous or fail to state a
claim under § 1915(g) will result in him being unable to proceed in forma
pauperis under the provisions of 28 U.S.C. § 1915.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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