Doyle v. Ritter, Jr.

FILED
United States Court of Appeals
Tenth Circuit
June 18, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MICHAEL DOYLE,
Plaintiff - Appellant,
No. 09-1101
v. (D.C. No. 09-CV-00066-ZLW)
(D. Colo.)
BILL RITTER, JR., Governor;
ARISTEDES W. ZAVARAS,
Executive Director; KEVIN
MILYARD, Warden; CHAPDE LANE,
Associate Warden,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **
Plaintiff-Appellant Michael Doyle, an inmate appearing pro se, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint. Mr.
Doyle sought damages based upon three claims—retaliation, denial of access to
*
This order and judgment is not binding precedent, except under the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.
**
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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
courts, and embezzlement. 1 R. Doc. 7 (Amended Complaint). The district court
found the claims to be frivolous, and dismissed the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). Doyle v. Ritter, No. 09-cv-00066-BNB, 2009 WL
581545, at *3 (D. Colo. Mar. 5, 2009).
When a district court dismisses a complaint for frivolousness pursuant to 28
U.S.C. § 1915(e)(2)(B), we generally review for an abuse of discretion. Fogle v.
Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). “However, where the
frivolousness determination turns on an issue of law, we review the determination
de novo.” Id. In order to determine whether the pro se complaint is frivolous, we
must ask whether it “lacks an arguable basis either in law or in fact.” Id. (internal
quotation marks omitted). Further, in conducting this inquiry, we will construe
the complaint liberally because Mr. Doyle appears pro se. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
Mr. Doyle argues that prison officials retaliated against him for filing two
prior lawsuits by denying him sufficient free envelopes to mail documents to the
court and then disciplining him for his conduct when he confronted prison law
library staff over the issue. 1 R. Doc. 7 at 4; Pro Se Memorandum at 5-6. He
also contends that he was denied access to the courts because he was not provided
sufficient free materials and because he was forced to choose between recreation
time and law library time given that the hours of operation coincided. 1 R. Doc. 7
at 5; Pro Se Memorandum at 2-4. Finally, Mr. Doyle claims that prison officials
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embezzled his funds. 1 R. Doc. 7 at 6; Pro Se Memorandum at 10.
These claims were properly dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). On his retaliation claim, Mr. Doyle failed to explain how the
named defendants were personally involved in retaliating against him despite
having been advised that he would need to do so. Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007); see Doyle, 2009 WL
581545, at *2. Mr. Doyle is simply incorrect insofar as he argues that he has
demonstrated personal participation by showing that the named defendants
received a copy of the complaint or exercised general supervisory capacity;
rather, there must be an affirmative link between the named defendant and the
alleged constitutional violation. See Poolaw v. Marcantel, 565 F.3d 721, 732-33
(10th Cir. 2009). As to the denial of access claim, Mr. Doyle did not allege any
actual injury to his ability to pursue a nonfrivolous legal claim. Lewis v. Casey,
518 U.S. 343, 349-55 (1996). Finally, the facts alleged by Mr. Doyle simply do
not support a claim of embezzlement. Accordingly, Mr. Doyle’s claims are
legally frivolous. See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
We DISMISS the appeal. All pending motions are DENIED. Mr. Doyle is
ORDERED to make full payment of the unpaid balance due on the filing fee.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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