Watson v. James

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
B ARRY WA TSO N ,
Plaintiff - Appellant,
No. 06-6350
v. W .D. Okla.
HAROLD M AURICE JAM ES; KEVIN (D.C. No. 06-CV-462-R)
M CCRAY ; RA Y C . ELLIOTT;
NA THA N D ILLS; RO BERT BY BEE;
M IKE SPEEGLE; JERA L SCOTT
DU PY; ALLEN J. W ELCH; JEFFREY
B YERS; JEN N IFER RIC HA RD;
CA RO LYN L. M ERRITT,
Defendants - Appellees.
OR D ER D ISM ISSING APPLICATION AS FRIVOLOUS
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
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.
Barry W atson, pro se, 1 appeals from the district court’s dismissal of his
1
W e liberally construe pro se pleadings and appellate briefs. Ledbetter v.
City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
42 U.S.C. § 1983 complaint on statute of limitations grounds. W e dismiss his
frivolous appeal.
Background
In his complaint, W atson related this series of events. W atson was arrested
on April 16, 1998. On November 6, 2000, he proceeded to trial in state court and
was represented by a state public defender. On November 29, 2000, he was
sentenced after being found guilty of charges arising from the April 1998
incident. Carolyn M erritt, a staff lawyer at the state public defender’s office who
did not serve as trial counsel, represented W atson on direct appeal. She did not
raise assignments of error based on ineffective assistance of trial counsel or trial
counsel’s alleged conflict of interest. On October 18, 2001, the O klahoma Court
of Criminal Appeals affirmed W atson’s conviction and sentence.
M ore than four years later, on April 25, 2006, W atson filed a civil rights
complaint in federal court against his appellate counsel, his trial counsel, the
officers involved in his A pril 1998 arrest, and his trial judge. He alleged M erritt
conspired with “co-workers, a state official or state officials,” acting under color
of state law, to deny his rights to 1) direct appeal; 2) conflict-free and effective
assistance of counsel; 3) due process; and 4) equal protection. He also claimed he
was denied equal protection of the law during his direct appeal because of his
poverty and race. He sought 1) a jury trial; 2) declaratory and injunctive relief
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against his trial judge; and 3) monetary damages against the remaining defendants.
The magistrate judge concluded W atson’s claims were filed well after the
two-year statute of statute of limitations had run and recommended dismissing
W atson’s complaint. Over W atson’s objections, the district court adopted the
magistrate judge’s report and recommendation and dismissed W atson’s complaint
as untimely. The court left its previous grant of leave to proceed ifp intact but
imposed a strike under 28 U.S.C. § 1915(g). W atson has filed a motion for leave
to file ifp in this Court even though it is unnecessary to do so. 2 See Fed. R. App.
P. 24(a)(5).
Under 28 U.S.C. § 1915(e)(2)(B)(i), this Court must dismiss frivolous
appeals. W atson’s brief fails to present any legal theory or refer to specific facts
that could conceivably refute the district court’s thoroughly reasoned disposition.
2
W hen a prisoner is granted leave to proceed ifp in the district court that
right continues on appeal unless the district court certifies the appeal is not taken
in good faith. Fed. R. App. P. 24(a)(3). W atson’s continuing ifp status does not
relieve him of his obligation to pay filing fees, it merely permits the fees to be
paid in installments. Accordingly, he must continue to make payments until the
filing fee is paid in full. Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001)
(dismissal of an appeal does not relieve appellant of obligation to pay appellate
filing fee in full).
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DISM ISSED. 3
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
3
This dismissal counts as a strike under § 1915(g). Thus, W atson has
accumulated two strikes, one in the district court and one here. See 28 U.S.C. §
1915(g); Jennings v. Natrona County D et. Ctr. M ed. Facility, 175 F.3d 775, 780
(10th Cir. 1999).
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