UNITED STATES COURT OF APPEALS
Filed 4/12/96
TENTH CIRCUIT
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DON A. HARPER, )
)
Petitioner-Appellant, )
v. ) No. 96-1057
) (D.C. No. 96-S-207)
UNITED STATES DISTRICT COURT, ) (Dist. of Colorado)
KANSAS CITY; KANSAS JUDGE VAN )
BEBBER; R.S. STREEPY, U.S. )
Prosecutor; LARRY C. PACE, )
Attorney; VERNON LEWIS, Attorney, )
and others, )
)
Respondents-Appellees. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs 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); Tenth Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Don Alton Harper (Harper), appearing pro se and in forma
pauperis, appeals from the district court’s sua sponte dismissal of
*
This Order and Judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
his “Application to Proceed Under the Mandamus Act Invokes Title 28
U.S.C. 1651 (A) Shows Cause Orders - Cross-Claim, Conflict of
Interest of Two States Invokes Now 28 1404 Short Title Acts 28 1
NT,” with an attached diversity of citizenship complaint captioned
in the United States District Court for the District of Kansas.
Harper is incarcerated in the Federal Correctional Facility at
Florence, Colorado. His application-complaint sought a writ of
mandamus directed to the United States District Court for the
District of Kansas to docket his various claims against individuals
involved in the criminal case brought against him. The district
court dismissed Harper’s complaint and action as legally frivolous
pursuant to 28 U.S.C. § 1915(b).
On appeal, in a rambling, disjointed pro se brief entitled
“Opening Brief - Diversity of Citizenship - Deliberate Indifference
Standard,” Harper generally alleges disregard of the law, judicial
usurpation, denial of a fair trial, insufficient evidence, lack of
probable cause to believe a crime had been committed, questions of
realignment of parties for purposes of diversity jurisdiction,
conspiracy to violate civil rights, and reckless disregard to the
suffering inflicted. Harper demands his immediate release from
false imprisonment.
It is well settled that a petitioner for a writ of mandamus
must show, by clear and indisputable evidence, that the writ should
issue. Mallard v. United States, 490 U.S. 296, 309 (1989).
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We review the district court’s dismissal under § 1915(d) for
an abuse of discretion. Green v. Seymour, 59 F.3d 1073 (10th Cir.
1995). Section 1915(d) “accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal theory,
but also the unusual power to pierce the veil of the complaint’s
factual allegations and dismiss those claims whose factual
contentions are clearly baseless.” Id. at 1077 (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989).
We affirm substantially for the reasons set forth in the
district court’s “Order of Dismissal” entered and dated January 31,
1996.
AFFIRMED.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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