Johnson v. Westfall

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 6 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD WALTER JOHNSON,
Plaintiff - Appellant,
v. No. 99-1210
(D. Ct. No. 99-N-498)
RICHARD WESTFALL; ROY (D. Colo.)
ROMER; ADELE ANDERSON;
STEVEN PELICAN; EARNEST
RUYBALID; PETER WARREN
BOOTH; MARLENE LANDFIELD,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TACHA , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2)(C);
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This order and judgment is not binding precedent, except under the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. This 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.
Plaintiff, an inmate at the Colorado State Penitentiary, has filed various
self-styled documents with this court. We are obliged to construe pro se
pleadings liberally, Haines v. Kerner , 404 U.S. 519, 520-21 (1971) (per curiam),
and therefore treat his filings as a motion for leave to proceed on appeal in forma
pauperis. 1
In ruling on such a motion, this court must “dismiss the case at any time if
the court determines that . . . the action or appeal . . . fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2). Plaintiff invokes various
legal terms in his filings but does not set out any factual predicate to support his
use of these terms. Pro se status “does not relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim could be based.” Hall
v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). The magistrate judge has
twice ordered plaintiff to submit a complaint that meets the pleading requirements
of Rule (8)(a). Even on a liberal construction of the filings before us, we cannot
discern a claim upon which relief can be granted. We therefore deny the motion
1
On May 18, 1999, the district court entered an order and judgment
dismissing this action for plaintiff’s failure to comply with the pleading
requirements of Fed. R. Civ. P. 8(a). Plaintiff filed no notice of appeal from this
final judgment. However, on May 20, plaintiff filed this motion to proceed on
appeal in forma pauperis. A motion to appeal in forma pauperis can confer
appellate jurisdiction upon this court. Hoover v. United States , 268 F.2d 787, 789
(10th Cir. 1959). See also Knox v. Wyoming , 959 F.2d 866, 868 n.1 (10th Cir.
1992) (restating the rule from Hoover ). We therefore exercise jurisdiction over
the matter.
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to proceed in forma pauperis and AFFIRM the district court’s dismissal of the
matter.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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