F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 5 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN J. MCKIBBEN,
Plaintiff-Appellant,
v.
WALT PARSONS, MATT
LINDVALL, ANDREW MCDONALD,
DANA DELANY, TERRY
HALFORD, PETER MICHAELSON,
No. 96-1468
JANET FOLSOM, JOSEPH
(District of Colorado)
BENNETT, TIM MIENERT, JAY
(D.C. No. 94-N-2631)
TROMBETTA; WARREN HUMBLE,
CAROL JENNY, WELDON
MCDONALD, CAROL MCDONALD,
DAN RUPP, MR. JAMES
FARENHOLTZ, BETH
KRULEWITCH, MRS. JAMES
FARENHOLTZ, individually and in
their official capacities,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
After examining the briefs and 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); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Appellant John J. McKibben appeals the dismissal of his civil suit brought
under 42 U.S.C. § 1983 in the United States District Court for the District of
Colorado. In 1991, McKibben was convicted in the Eagle County District Court,
Colorado, of second degree sexual assault. McKibben subsequently sued eighteen
individuals involved in his prosecution, including the victim, the victim’s parents,
the prosecutors, law enforcement officers, witnesses, his own attorneys, and a
court clerk. McKibben’s complaint is a rambling, confusing string of factual
allegations which, McKibben argues, support his claim that the defendants
conspired against him.
The magistrate judge found that McKibben “provided no evidence of any
conspiracy or any deprivation of a constitutional right that would allow recovery
under § 1983.” Report and Recommendation at 12. The judge continued, “On the
contrary, the pleadings submitted by [McKibben] reflect the actions of an
individual who has attempted to use this case as a means of retaliation against
anyone who was remotely involved in his conviction . . . .” Id. at 12-13. The
magistrate judge then recommended that the district court dismiss the case with
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prejudice because, among other reasons, it was malicious, within the meaning of
28 U.S.C. § 1915(d). 1 The district court agreed with the magistrate judge’s
recommendations, determined that the action was frivolous, and dismissed the
case.
For substantially the reasons set forth in the magistrate’s Recommendation
of August 18, 1995, and the district court’s Order of September 23, 1996, we
DISMISS the appeal as frivolous. As an appeal dismissed on grounds of being
frivolous, 28 U.S.C. § 1915(g) is triggered for the purpose of counting a “prior
occasion.” Furthermore, we note the district court dismissed the case for failure
to state a claim upon which relief could be granted, with the additional
determination that the action was frivolous, thereby triggering the counting of an
additional “prior occasion.” 2 A prisoner may not proceed under 28 U.S.C. § 1915
if he has, on three or more prior occasions, filed actions or brought appeals which
The relevant provision of 1915(d) is now codified at 28 U.S.C.
1
§ 1915(e)(2)(B)(i).
Although the district court dismissed this case after the enactment of the
2
Prison Litigation Reform Act (“PLRA”), which established the “prior occasions”
rule codified at 28 U.S.C. § 1915(g), McKibben filed his complaint prior to the
PLRA’s enactment. Nonetheless, counting the dismissal of the complaint as a
“prior occasion” does not raise concerns of statutory retroactivity. See Green v.
Nottingham, 90 F.3d 415, 420 (10th Cir. 1996) (holding retroactivity concerns not
raised by counting “prior occasion” under § 1915(g) where filing of complaint as
well as district court dismissal occurred prior to PLRA enactment).
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are frivolous or fail to state a claim upon which relief can be granted. 28 U.S.C.
§ 1915(g).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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McKibben v. Parsons
Combined Opinion