Sims v. Miller

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 28 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

LARRY DARNELL SIMS,

Plaintiff-Appellant,

v. Nos. 00-1202 & 00-1210
(D.C. No. 97-Z-2048)
FRANK MILLER; RANDY (D. Colo.)
HENDERSON; SUSAN JONES; LT.
BLACKMORE; LT. BARR; W. H.
JORDON; K. BAXTER; BONNIE
BARR; C/O STEPHENS; KEN
SHIFTLETT; LT. INISS; FRANK E.
RUYBALID; ARISTEDES W.
ZAVARAS; LT. BEGRIN; LT.
HAMILTON; LT. FRANK ORTIZ;
KEN TOPLISS; ANTHONY
CARROCHI; MAJOR WATSON;
MAJOR LYNN; LT. WHITTINGTON;
LT. JARAMILLO; C/O WATSON;
C/O BREWER; CAPTAIN JOHN
HYATT; GLORIA MASTERSON;
GARY NEET; SGT. HAROLD
TUTTLE; JACKIE GOMEZ, C/O; LT.
CUPP; CAPT. BUXMAN; SGT.
SHUMER; SGT. JARAMILLO; SGT.
FIGERO; LT. ERNSTER; LT.
GRIAG; SGT. MILLER; DAN
SCHLESINGER; CARL ZENON,
Director Regional One; SGT.
GARCIA and MAJOR RIED,

Defendants-Appellees.
 ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases

are therefore ordered submitted without oral argument.

Plaintiff seeks review of the district court’s order and judgment dismissing

his civil rights complaint brought pursuant to 42 U.S.C. § 1983 seeking, among

other remedies, in excess of $25 million (our No. 00-1202) and the order denying

his subsequent motion to vacate the judgment (our No. 00-1210). He also asks

this court for leave to proceed with the appeals in forma pauperis. We have

jurisdiction, 28 U.S.C. § 1291, and we concur in the district court’s analysis in all

respects. In addition, we deny plaintiff’s motions for leave to proceed informa

pauperis because the appeals are frivolous.

*
This order and judgment is not binding precedent, except under the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.

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 The operative pleading in this action was plaintiff’s second amended

complaint, filed January 27, 1999, 1
naming forty-one defendants, all of whom are

or were connected to the Colorado Department of Corrections (CDOC).

Following defendants’ motions for summary judgment and dismissal, the case was

referred to a magistrate judge, who recommended granting summary judgment to

the eleven defendants who had been served and dismissing the complaint as to the

remaining unserved defendants.

In his second amended complaint, as well as in the earlier complaints and

numerous motions, letters, and pleadings filed with the court over the course of

two and one-half years, plaintiff alleges numerous alleged violations of his

constitutional rights by named and unnamed employees at several institutions

within the (CDOC). Most of his allegations are either vague and conclusory (e.g.,

unknown John Does made racial and sexual remarks and slurs towards him; the

mailroom staff refused to mail out his legal mail; two unserved defendants placed

him under a great deal of stress, duress and intimidation) or are lacking in

specificity as to time, place, and particular defendant associated with the incident

in question. Moreover, those factual allegations that are described with sufficient

specificity do not rise to the level of constitutional violations.

1
Technically the complaint was filed March 9, 1999. However, it was
lodged with the district court in January and is the document referred to by the
magistrate and district court judges as the second amended complaint.

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 The magistrate judge fully and thoroughly considered plaintiffs claims,

grouping them into general categories for purposes of analysis: threats, denial of

access to courts and Fourth Amendment violations, use of excessive force, due

process violations, failure to follow grievance procedures, retaliation, and

conspiracy. Specifically, the magistrate judge determined that the alleged threats

and verbal harassment did not rise to the level of constitutional violations. See

Collins v. Cundy , 603 F.2d 825, 827 (10th Cir. 1979). He further determined that

plaintiff was not denied access to the courts because his letter to the Secretary of

State was not legal mail and because other items the defendants allegedly refused

to mail in no way hindered plaintiff’s legal efforts. The magistrate judge also

held that the search of plaintiff’s cell did not constitute an impermissible search

in violation of the Fourth Amendment. See Hudson v. Palmer , 468 U.S. 517,

525-26 (1984). In addition, the alleged seizure of plaintiff’s own legal papers did

not state a constitutional deprivation because plaintiff nonetheless managed to

continue the prosecution of this and other cases; indeed, he managed to file the

second amended complaint in this case after the alleged seizure of his papers in

December of 1997, therefore failing to demonstrate any injury by being frustrated

or impeded in his pursuit of a nonfrivolous legal claim. Lewis v. Casey , 518 U.S.

343, 352-54 (1996). Similarly, plaintiff’s allegations of excessive force were at

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best de minimus and not rising to the level of a constitutional violation. See

Hudson v. McMillian , 503 U.S. 1, 9-10 (1992).

The magistrate judge further determined that plaintiff’s claim of due

process violations in connection with prison disciplinary proceedings did not

implicate a constitutionally protected liberty interest. The magistrate judge also

concluded that insofar as plaintiff contended that CDOC officials had failed to

comply with the prison grievance procedures, he had failed to allege the violation

of a federal constitutional right; he also rejected plaintiff’s claim of retaliation for

lack of specific facts showing retaliation based on the exercise of constitutional

rights. Finally, the magistrate judge concluded that plaintiff had failed to allege

facts sufficient to establish a claim of conspiracy under 42 U.S.C. § 1985(3).

Defendant did not file a timely objection to the magistrate judge’s

November 22, 1999, report and recommendation. Nonetheless, the district court

reviewed the recommendation, amended complaint, parties’ briefs and the

applicable case law and statutes prior to dismissing the complaint and entering

judgment for the defendants on December 14. R. doc. 115. On December 19,

plaintiff sent a letter objecting to the dismissal, seeking an extension of time, and

claiming he had not had the opportunity to object to the magistrate judge’s

recommendation because he had been relocated to a different institution on

November 18. He further stated he was unable to gain access to the law library

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immediately after the transfer. Id. doc. 117. Plaintiff did not allege that he had

not received the magistrate judge’s recommendation. On January 14, 2000, he

filed a formal motion for extension of time, claiming he had been denied access to

the law library. Id. doc. 118. This was construed as a motion for extension of

time in which to appeal and was deemed unnecessary, as the notice of appeal

(also filed January 14) was timely.

On March 14, the district court construed plaintiff’s November 19 letter as

a request to file out-of-time objections to the magistrate judge’s recommendation

and denied it for plaintiff’s failure to notify the court within ten days of the

change in his address, as required by the court’s local rules. Id. doc. 122. The

court further suggested that any relief plaintiff wished to seek from the operation

of the judgment needed to be filed pursuant to Fed. R. Civ. P. 60(b).

Plaintiff filed his Rule 60(b) motion, which the district court ultimately

denied, on April 12. However, in that motion, plaintiff alleged he timely filed a

notice of change of address on November 22, 1999. R. Doc. 124 at 3. Accepting

this latter claim as true, we have determined in the interest of justice to review the

underlying action on the merits. See Moore v. United States , 950 F.2d 656, 659

(10th Cir. 1991).

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In his brief on appeal, plaintiff makes the following arguments:

1. The district court erred in granting summary judgment

because defendants did not mention in their summary

judgment motion the “general abusive behavior” by

defendants, including alleged “‘sexual harassment,’” in

violation of a United Nations Treaty, and an alleged rape

committed on plaintiff by another inmate. See

Appellant’s Br. at 30.

2. Genuine issues of material fact exist concerning the

alleged rape and its subsequent cover-up (and denial of

medical care after the rape). See id. at 32.

3. Excessive force was used against him in violation of the

Eighth Amendment. See id. at 33.

4. The district court violated plaintiff’s First and Seventh

Amendment rights because he was misled into thinking

there would be a trial, the action was never properly

served on the defendants, the scheduling conference

should have been conducted by a magistrate judge, not a

bankruptcy judge, and that certain procedural rules

should have been followed. See id. at 34-37.

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 Most of the brief, however, describes the proceedings as listed on the

district court’s docket sheet and reiterates certain factual claims listed in the

amended complaint. This recitation does not constitute argument or authority in

support of plaintiff’s claims. To the extent he has listed numerous issues but

failed to discuss them, they are waived. See Adler v. Wal-Mart Stores, Inc. . 144

F.2d 664, 679 (10th Cir. 1998) (arguments inadequately briefed in opening brief

waived and bold assertions that there are genuine issues of material fact

insufficient for reversal of summary judgment) (quotations omitted).

We review the district court’s grant of summary judgment de novo,

applying the same standards as did that court. McNight v. Kimberly Clark Corp. ,

149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate only

when an examination of the record shows that “there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). Insofar as the complaint was dismissed as to the unserved

defendants as either frivolous or for failure to state a claim on which relief can be

granted, we also review this decision de novo. See Perkins v. Kan. Dep’t of

Corr. , 165 F.3d 803, 806 (10th Cir. 1999).

With regard to plaintiffs first two arguments, the allegations of rape by

another inmate and of supposed violations of a United Nations Treaty were first

raised in plaintiff’s Rule 60(b) motion, long after the district court had granted

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defendants’ motion for summary judgment. In addition, the time and place of this

alleged assault are not specified, nor is it connected to any specific defendant.

Because these claims were not part of the claims considered by the district court

and because they are vague and conclusory, we will not consider them here.

With respect to plaintiff’s claimed use of excessive force in violation of the

Eighth Amendment, there is no indication on the record of any use of force

beyond mere pushing and shoving, which does not give rise to a federal cause of

action. See Hudson , 503 U.S. at 9-10.

Finally, plaintiff claims the district court violated certain procedural rules.

He contends that according to his records, none of the defendants named in his

complaint have ever been served. See Appellant’s Br. at 8. This of course

overlooks the fact that defense counsel accepted service on behalf of the eleven

defendants named in the original complaint. Insofar as he complains of the

district court’s special order of reference to the Chief Bankruptcy Judge for the

limited purpose of conducting a telephone conference to inquire into the nature

and scope of plaintiff’s claims, the district court’s authority for this unusual

procedure is unclear; however, it is apparent from the subsequently filed report

that the bankruptcy judge did nothing of substance and, more importantly, that

plaintiff was in no way delayed or prejudiced by this action. The balance of his

procedural arguments are without merit.

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 In the second appeal, No. 00-1210, plaintiff seeks review of the denial of

his motion ostensibly brought pursuant to Fed. R. Civ. P. 6(b) and 60(b). Rule

6(b) governs the time for filing documents and the circumstances under which an

enlargement of time for filing may be granted. To the extent plaintiff appears to

seek an enlargement of time to object to the magistrate judge’s report and

recommendation, the rule is inapplicable because the district court had accepted

the magistrate judge’s report and recommendation and dismissed the action before

the motion was filed.

A Rule 60(b) motion is addressed to the sound discretion of the district

court. See New England Mut. Life Ins. Co. v. Anderson , 888 F.2d 646, 652 (10th

Cir. 1989). Here, the district court correctly concluded that plaintiff’s post-

judgment motion did not challenge either the decision of the court or the

recommendation of the magistrate judge, but merely sought to either file a new

§ 1983 complaint or to amend the one underlying the dismissed action. Moreover,

plaintiff’s arguments on appeal are addressed to the dismissal of his complaint,

not the district court’s post-judgment ruling on the Rule 60(b) motion.

Accordingly, any challenge to this ruling is deemed waived. See Adler , 144 F.3d

at 679.

We have considered the balance of plaintiff’s arguments in light of the

record and find them to be without any legal merit. We further find that both

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these appeals are frivolous and subject to dismissal under the provisions of

28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff is advised that each of these dismissals

counts as a separate prior occasion under § 1915(g). See Jennings v. Natrona

County Det. Ctr. Med. Facility , 175 F.3d 775, 781 (10th Cir. 1999). In addition,

we affirmed the district court’s dismissal, for failure to state a claim on which

relief could be granted, of a similar civil rights action filed by plaintiff in Sims v.

Hickok , No. 99-1110, 1999 WL 448824, at **2 (10th Cir. July 2, 1999), which

also qualifies as a prior occasion under § 1915(g). See Jennings , 175 F.3d at 780.

Accordingly, plaintiff now has had three dismissals for purposes of § 1915(g) and

“may not proceed in forma pauperis in any future federal lawsuits, other than

habeas, which do not involve imminent danger of serious physical injury.” Id. at

781 (further quotation omitted). Plaintiff is reminded of his continuing obligation

to make partial payments until the docketing fees are fully paid.

APPEALS DISMISSED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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