Tomoson v. Crowley County Correctional Facility

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS APR 17 2003
TENTH CIRCUIT PATRICK FISHER
Clerk
DENNIS TOMOSON,
Plaintiff - Appellant,
v.
CROWLEY COUNTY
CORRECTIONAL FACILITY;
DOMINION; CORRECTIONAL
No. 02-1537
SERVICES CORPORATION;
(D.C. No. 02-Z-1168)
CROWLEY CORRECTIONAL
(D. Colorado)
SERVICES; MARK E. MCKINNA;
EDWARD G. RODENBECK; JACK J.
SEXTON; RANDY TATE; RONALD
MCCALL; JOHN R. THOMPSON;
CATHIE HOLST; DONALD
MORTON; JOHN W. SUTHERS;
KEN SALAZAR,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument.
Dennis Tomoson moves for leave to proceed in forma pauperis on his pro
se appeal of the district court’s dismissal of his 42 U.S.C. § 1983 action. For the
reasons set forth below, we deny his motion and dismiss the appeal.
Mr. Tomoson brought this civil rights action against a private Colorado
correctional facility, alleging his transfer from a Washington state prison was
illegal and in violation of his constitutional rights of liberty, equal protection, and
due process. He sought ten million dollars in damages. The district court
determined his claims were frivolous and dismissed the complaint. The court also
denied Mr. Tomoson’s motion for reconsideration. When a district court
dismisses an action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), we review
only for an abuse of discretion. See Denton v. Hernandez, 504 U.S. 25, 33-34
(1992).
The district court carefully explained, both in its order of dismissal and
again in its denial of reconsideration, the reasons why Mr. Tomoson’s action is
frivolous. Rec., docs. 7, 10. The court cited and explained specific statutory
authority in both the states of Washington and Colorado that permits the transfer
of inmates from one state to the other. Id., doc. 7 at 3; cf. doc. 10 at 2-3. The
court also cited federal case law regarding the frivolousness of a constitutional
claim based on transfer to a private prison. Id., doc. 7 at 3; cf. doc. 10 at 2-3
(citing Olim v. Wakinekona, 461 U.S. 238, 248 (1983); Montez v. McKinna, 208
-2-
F.3d 862, 865-66 (10th Cir. 2000)).
To be granted in forma pauperis status, Mr. Tomoson must demonstrate the
existence of a reasoned, nonfrivolous argument on the law and the facts in
support of reversing the district court’s dismissal of his action. See
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Pursuant to
Haines v. Kerner, 404 U.S. 519, 520 (1972), we have construed Mr. Tomoson’s
complaint liberally, but we agree with the district court that the claims are
frivolous.
Accordingly, we DENY in forma pauperis status, DISMISS this appeal,
and ORDER immediate payment of the unpaid balance Mr. Tomoson owes to this
court.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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