F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
BARBARA SCHWARZ,
Plaintiff-Appellant,
v. No. 98-1230
(D.C. No. 98-M-123)
NATIONAL INSTITUTE OF (D. Colo.)
CORRECTIONS, and FEDERAL
BUREAU OF PRISONS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.
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.
Barbara Schwarz, appearing pro se, seeks leave to appeal the district
*
This order and judgment is not binding precedent, except under the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.
court’s dismissal of her action under the Freedom of Information and Privacy
Acts without prepayment of fees. After reviewing the materials presented by
Schwartz, we deny her request and dismiss the appeal.
Schwarz filed Freedom of Information Act (FOIA) requests with defendants
National Institute of Corrections (NIC) and Bureau of Prisons (BOP), seeking
records and information pertaining to her husband, Mark Rathbun, whom Schwarz
believed was incarcerated somewhere in the United States. The BOP, on behalf
of itself and the NIC, conducted a search of its national on-line automated
information system and informed Schwarz it found no records pertaining to her
husband. Schwarz was dissatisfied with defendants’ response and filed this action
on January 22, 1998, seeking a court order directing the NIC to separately
respond to her request and directing the BOP to produce information she believed
was being withheld. 1
Defendants moved to dismiss the action, noting the United States District
Court for the District of Maryland had dismissed a nearly identical action filed by
Schwarz against the BOP and the United States Parole Commission. See Schwarz
1
Research indicates Schwarz’ attempts to locate her husband have
prompted her to file similar actions against Interpol, the Executive Office of
United States Attorneys, the Merit Systems Protection Board, the United States
Patent and Trademark Office, the Department of Commerce, the Church of
Scientology International, the California Department of Corrections, and the San
Quentin Prison Warden and Staff (among others).
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v. United States Parole Comm’n , 1998 WL 416660 (4th Cir. 1998) (affirming
dismissal of action). On June 9, 1998, the district court granted defendants’
motion to dismiss, concluding Schwarz’ action was barred by the dismissal of her
Maryland action. Although Schwarz argued claim preclusion did not apply since
the NIC was not a party to the Maryland action, the district court disagreed and
specifically noted the NIC was simply “an office established within the Bureau of
Prisons as an information and consulting office.” Record, Doc. 31 at 2. The
district court denied Schwarz leave to proceed on appeal in forma pauperis on the
grounds the “appeal [wa]s not taken in good faith because plaintiff ha[d] not
shown the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.” Id. , Doc. 37 at 1.
We have reviewed Schwarz’ appellate pleadings and the entire record on
appeal and conclude this appeal is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i);
see also Neitzke v. Williams , 490 U.S. 319, 327 (1989) (a claim is frivolous if the
factual contentions supporting it are clearly baseless, or if it relies on an
indisputably meritless legal theory). As outlined in the district court’s order of
dismissal, the doctrine of res judicata bars Schwarz from pursuing this action
against the BOP because of the dismissal of her Maryland action, which involved
the same parties (Schwarz and the BOP) and the same claim. See United States v.
Kunzman , 125 F.3d 1363 (10th Cir. 1997) (outlining requirements for claim
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preclusion), cert. denied 118 S. Ct. 1375 (1998). Whether or not this procedural
bar applies to the NIC, 2
we conclude the record on appeal demonstrates Schwarz’
action against NIC was subject to dismissal in any event because the information
sought by Schwarz pursuant to the FOIA simply does not exist. Accordingly, we
agree with the district court that the appeal is not taken in good faith.
The motion for leave to proceed on appeal in forma pauperis is DENIED
and this appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
2
As noted by the district court, the NIC is an arm of the BOP. See 18
U.S.C. § 4351(a) (“There is hereby established within the Bureau of Prisons a
National Institute of Corrections.”). However, it is unclear whether the NIC is an
“agency” subject to the FOIA. See 5 U.S.C. § 552(f) (defining “agency” for
purposes of FOIA).
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