F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 9 1999
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
ROBERT LESLIE RICE,
Plaintiff-Appellant,
v. No. 98-1295
(D. Colo.)
WILEY CHRISTOPHER; ERIN TOBIN; FRANK (D.Ct. No. 98-D-997)
J. DANIELS; LYLE MCCLANAHAN; RIECKE
CLAUSSEN; GRETCHEN M. BUCK; DORALYN
GENOVE; KATAY HALL; JIM BAUGHMAN;
VICTORIA BUCKLEY; ROY ROMER,
Defendants-Appellees.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, 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)(2); 10th Cir. R. 34.1.9(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This order and judgment is not binding precedent except under the doctrines of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. 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.
Appellant Robert Leslie Rice, a pro se state inmate, appeals the district
court’s order dismissing his 42 U.S.C. § 1983 complaint against various Colorado
state officials in connection with an extradition warrant. The district court
summarily dismissed the complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i). We affirm.
Following a conviction for burglary, Mr. Rice violated the conditions of his
parole by leaving California and returning to Colorado. Consequently, on
February 1, 1996, the State of Colorado brought a charge of fugitive from justice
against him, in addition to other felony charges. On April 4, 1996, the trial court
granted a motion to dismiss the fugitive from justice case without prejudice, but
Mr. Rice remained incarcerated on the felony charges. He pled guilty to those
charges on June 9, 1996, with his sentencing hearing scheduled for September 3,
1996. Prior to entry of his guilty plea, the Governor of Colorado issued an
extradition warrant against Mr. Rice on request from the State of California. The
terms of the extradition warrant placed a “hold” on Mr. Rice in the event he
posted bond for release.
In July 1996, Mr. Rice allegedly attempted to make arrangements with a
bondsman for his release, but learned of the “hold” placed on him for extradition
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to California. Months later, California state officials discharged the parole
violator warrant against Mr. Rice, effective November 1, 1996, but did not notify
Colorado state officials of the request to cancel the extradition detainer until
December 16, 1996.
In his complaint, Mr. Rice claims various state officials, including the
governor, stepped outside their official duties by entering into a conspiracy to
violate his constitutional rights. Specifically, Mr. Rice claims these officials
violated the “fundamental fairness” principle of due process by holding him after
dismissal of his fugitive from justice case in April 1996.
After liberally construing Mr. Rice’s pro se complaint, the district court
dismissed it sua sponte as legally frivolous under 28 U.S.C. §1915(e)(2)(B)(i).
The district court determined Colorado officials did not receive notification of
California’s discharge of the parole violator warrant against Mr. Rice until
December 16, 1996. Therefore, it concluded the Colorado officials did not have
authority from California to removal the extradition hold on Mr. Rice until that
time. In dismissing Mr. Rice’s complaint, the district court found his violation of
due process claim vague and conclusory.
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In his appeal, Mr. Rice asserts the district court erred in dismissing his
complaint as “vague and conclusionary [sic].” He submits that the named
officials “stepped outside the duties of their offices in entering into a conspiracy”
against him so they “do not have judicial immunity.” He further contends the
district court’s dismissal of his complaint violates his First Amendment right to
access the courts.
We review for abuse of discretion the district court’s § 1915(e) dismissal of
a complaint as frivolous. McWilliams v. State of Colorado, 121 F.3d 573, 574-75
(10th Cir. 1997) (citing Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997)).
A complaint “‘is frivolous where it lacks an arguable basis either in fact or law.’”
Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995) (quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989)). In applying these standards, we liberally
construe a pro se litigant’s complaint. See Haines v. Kerner, 404 U.S. 519, 520-
21 (1972).
We have reviewed the record and considered Mr. Rice’s arguments. We
conclude the district court did not abuse its discretion in dismissing Mr. Rice’s
pro se complaint as legally frivolous. We therefore affirm the district court’s
dismissal for substantially the same reasons stated in its July 28, 1998 Order and
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attach a copy hereto.
Similarly, we find legally frivolous Mr. Rice’s new assertion that the
district court’s dismissal of his complaint somehow violates his constitutional
right to access the courts. While the right to access the courts may extend to 42
U.S.C. § 1983 actions, such a claim must show some actual denial of an
opportunity to come before the court. Cf. Lewis v. Casey, 518 U.S. 343, 351,
354-55 (1996). It appears Mr. Rice fully exercised his right to present his
complaint to the district court, and he fails to allege prison officials in any way
denied him a reasonably adequate opportunity to present it. Id. at 351. Moreover,
a constitutional violation of the right to access the courts does not result simply
because a district court dismisses a frivolous complaint.
We deny Mr. Rice’s request for documents. The judgment of the district
court dismissing the complaint as legally frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) is AFFIRMED. We conclude this appeal counts as a prior
occasion for the purposes of § 1915(g). Because a complaint dismissed under
§ 1915(e)(2)(B)(i) and affirmed on appeal counts as two prior occasions for
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purposes of § 1915(g), two “strikes” are recorded against Mr. Rice. The mandate
shall issue forthwith.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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