Rollins v. Fisch

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 25, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SHAWN LA'VELLE ROLLINS,
Plaintiff - Appellant,
v. No. 17-1029
(D.C. No. 1:16-CV-02871-LTB)
SUSAN FISCH; GREGORY (D. Colo.)
HOLLOWAY,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Shawn La’Velle Rollins, a federal prisoner, appeals the dismissal of his claims
for money damages against the public defender and the federal prosecutor in his case.
Rollins brought his claims pro se1 and had in forma pauperis (ifp) status at the district
court. The district court dismissed his claims as legally frivolous under 28 U.S.C.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 Rollins is proceeding in this action pro se, we construe his pleadings
liberally, but we do not serve as his advocate. Yang v. Archuleta, 525 F.3d 925, 927
n.1 (10th Cir. 2008).
§ 1915(e)(2)(B)(i). We affirm the dismissal, deny Rollins’s request for ifp status on
appeal, and assess a second strike under 28 U.S.C. § 1915(g).
In his complaint and in his appeal, Rollins alleges a willful and purposeful
conspiracy to deprive him of his civil rights during the criminal proceedings against
him in state and federal court. More specifically, Rollins alleges that the federal
prosecutor violated his rights by not informing Rollins about his pending federal
indictment and that his public defender was constitutionally ineffective for not
discovering that violation. Rollins brought his claims under the authority of Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and
42 U.S.C. § 1985(3) and seeks only money damages as relief.
The district court rejected these claims for a host of deficiencies, most notably
that such actions for money damages are barred if the underlying conviction or
sentence has not been reversed, invalidated, expunged, or somehow called into
question. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996). That obstacle
made Rollins’s claim legally frivolous, and because Rollins is proceeding with ifp
status, 28 U.S.C. § 1915(e)(2)(B)(i) mandates that frivolous claims be dismissed sua
sponte. The district court also certified that any appeal of the dismissal would not be
in good faith and denied ifp status for appeal. Rollins moved for the district court to
reconsider the dismissal, but the district court denied the motion for the same reasons
as in its first order. Rollins appealed and seeks ifp status.
A claim made with ifp status is frivolous if it is based on a meritless legal
theory or baseless factual contentions. Schlicher v. Thomas, 111 F.3d 777, 779
2
(10th Cir. 1997). We generally review a § 1915 frivolousness dismissal for abuse of
discretion, unless the dismissal turns on a legal issue and then we review de novo.
Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).2 Our review should examine
whether “factual allegations could be remedied through more specific pleading” and
therefore whether a “district court abused its discretion by dismissing the complaint
with prejudice or without leave to amend.” Denton v. Hernandez, 504 U.S. 25, 34
(1992).
In his appellate brief, Rollins has done nothing to remove the legal obstacle
that blocked his claims at the district court: his underlying conviction and sentence
have not been called into question and so his money-damage claims, which
necessarily imply that his conviction and sentence were invalid, are barred. See id.;
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Instead, Rollins merely reiterates
the purposefulness and the magnitude of the wrongs perpetrated against him. He can
point to no prior invalidation of his conviction or sentence. Rollins previously tried to
invalidate his sentence by bringing these same claims in a 28 U.S.C. § 2255 habeas
2
Though, in two unpublished cases, we have also called that standard into
doubt, seeing as the Supreme Court case that created it, Denton v. Hernandez, 504
U.S. 25, 33-34 (1992), was based on an older version of the relevant statute. Lowe v.
Sockey, 36 F. App’x 353, 356 (10th Cir. 2002) (unpublished); Basham v. Uphoff, No.
98-8013, 1998 WL 847689, at *4 n.2 (Dec. 8, 1998) (unpublished). Denton found
that § 1915 gave the district court discretion over ifp frivolousness dismissals, but the
1995 Prison Litigation Reform Act (PLRA) removed the discretionary language from
the statute. Lowe, 36 F. App’x at 356. The Sixth Circuit has found that the PLRA
now compels a de novo review standard. McGore v. Wrigglesworth, 114 F.3d 601,
604 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry,
716 F.3d 944, 951 (6th Cir. 2013). We find that Rollins’s claims would be frivolous
under either standard, and so do not decide the standard-of-review issue.
3
corpus petition, but we rejected them as time-barred (by denying Rollins a certificate
of appealability for them). United States v. Rollins, No. 15-1459 (10th Cir. Mar. 3,
2016) (unpublished).
A finding in that § 2255 Order also blocks a final possible avenue for Rollins’s
money-damage claims. We have held that if a petitioner has no available habeas
corpus remedy “through no lack of diligence on his part,” the normal bar that a valid
conviction and sentence presents to a 42 U.S.C. § 1983 or Bivens claim is removed.
Cohen v. Longshore, 621 F.3d 1311, 1316-17 (10th Cir. 2010). But when we denied
Rollins’s claims in his § 2255 petition, we noted in a discussion about equitable
tolling that Rollins failed to show that he exercised due diligence in discovering the
facts underlying his claims. Rollins, No. 15-1459 at 10-12. So the exception
discussed in Cohen does not apply and the validity of his conviction and sentence
bars Rollins’s claims for money damages. The claims, then, are based on a meritless
legal theory and the district court was right to dismiss them as legally frivolous.
Rollins was initially granted leave to proceed with ifp status in this action, but then
lost that status for appeal when the district court found his claims frivolous and certified
that any appeal would not be in good faith. See 28 U.S.C. § 1915(a)(3). But even a party
who has been certified as not appealing in good faith can request ifp status on appeal so
long as he shows both a financial inability to pay and a reasoned, nonfrivolous argument,
and follows the procedure mandated by Fed. R. App. P. 24(a)(5). Rolland v. Primesource
4
Staffing, L.L.C., 497 F.3d 1077, 1078-79 (10th Cir. 2007).3 But we agree with the district
court that Rollins has not shown the existence of a reasoned, nonfrivolous argument and
so he cannot proceed on ifp status.
Finally, 28 U.S.C. § 1915(g) prohibits prisoners from bringing civil actions or
appeals under ifp status if the prisoner has, on three or more occasions, brought an action
or appeal that was dismissed because it was “frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.” For his claims at the district court, Rollins was assessed his first
strike under § 1915(g). We now assess a second strike for this frivolous appeal. See
Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If
we dismiss as frivolous the appeal of an action the district court dismissed under 28
U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”), overruled on other grounds
by Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). We urge Rollins to consider
more carefully when to file lawsuits and appeals, so that if more meritorious
circumstances ever arise for a civil suit in federal court, ifp status will not be
3
“Upon its face, § 1915(a)(3) would appear to foreclose our consideration of
[a motion to proceed IFP]; its mandatory language denies the availability of an
appeal in forma pauperis upon the district court’s certification of a lack of good faith,
and it provides no escape hatch of appellate review or reconsideration. Federal Rule
of Appellate Procedure 24(a)(5), on the other hand, purports to expressly permit our
consideration of [such] a motion . . . . The palpable conflict between these provisions
is resolved in favor of the procedures dictated by Rule 24(a)(5), by virtue of the fact
that its most recent reenactment postdates that of § 1915(a)(3).” Rolland, 497 F.3d
at 1078.
5
automatically foreclosed for him.
Entered for the Court
Gregory A. Phillips
Circuit Judge
6