Kirby v. Dallas County Adult Probation Department

FILED
United States Court of Appeals
Tenth Circuit

December 28, 2009
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

FOR THE TENTH CIRCUIT

RICHARD G. KIRBY,

Plaintiff–Appellant,

v. Nos. 08-2265 & 08-2292
(D.C. No. 1:04-CV-00844-DJS-ACT)
DALLAS COUNTY ADULT (D. N.M.)
PROBATION DEPARTMENT,
Community Supervision and
Corrections Department, Dallas
County; MARK OLSEN; D. TODD
HILL, Probation Officer, Dallas
County Probation Department;
LAURA CARAWAY, Probation
Officer Supervisor, Dallas County
Probation Department; JIM MILLS,
Assistant Director, Dallas County
Probation Department; ROBERT L.
WEBSTER, Assistant U.S. Attorney,
Dallas, Texas; GRANT COUNTY
DISTRICT ATTORNEY’S OFFICE;
JIM FOY, Prior Grant County District
Attorney; ARNOLD CHAVEZ, Grant
County DA Investigator; MARY
LYNN NEWELL, Grant County
District Attorney; TIM GARNER,
Grant County Assistant District
Attorney, Sixth Judicial District,
Silver City, New Mexico; NEW
MEXICO SECURITIES DIVISION;
BRUCE KOHL; JAMES MAES, New
Mexico Securities Division, Santa Fe,
New Mexico; JOHN DOE;
JANE DOE, Grant County Detention
Center, Grant County, New Mexico;
DONA ANA COUNTY DISTRICT
ATTORNEY; TOM CLARK;
MICHAEL CAIN, Assistant District
Attorney, Las Cruces, New Mexico;
KANSAS SECURITIES DIVISION,
Topeka, Kansas; GARY FULTON;
SCOTT SCHULTZ, Kansas Securities
Division, Topeka, Kansas; FIRST
NEW MEXICO BANK, doing
business as Copper Country Escrow;
MARTHA STEWART; JOHN DOE;
JANE DOE, First New Mexico Bank,
Silver City, New Mexico; GENE
CRAWFORD; HAROLD JOHNSON,
Pinto Altos, New Mexico; UNITED
STATES SECRET SERVICE;
CHUCK QUINN, Agent, United States
Secret Service, Wichita, Kansas;
ANDREW BAZEMORE, Agent,
United States Secret Service,
Albuquerque, New Mexico; BUTLER
COUNTY SHERIFF’S
DEPARTMENT; RANDY COFFMAN,
Butler County Sheriff’s Investigator;
MIKE TANNER, Butler County
Sheriff’s Deputy, El Dorado, Kansas;
STEVE HOWE, Assistant District
Attorney, Olathe, Kansas; BILL
MATTIACE, Las Cruces Mayor,
Adventure Travel, Las Cruces,
New Mexico; J.D. JONES,
Investigator, Las Cruces Police
Department; RICKY MADRID,
Sergeant, Las Cruces Police
Department, Las Cruces, New Mexico;
THE SILVER CITY POLICE
DEPARTMENT, Silver City,
New Mexico; HAM; UNKNOWN
POLICE OFFICERS, Silver City
Police Department, Silver City,
New Mexico; RANDALL HARRIS,
Curry County District Attorney, at the

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 time, Clovis, New Mexico; JOHN
DOES; JANE DOES, Unknown,
Grant County Detention Center,
Silver City, New Mexico;
FREDERICK SHERMAN, Attorney at
Law, for First New Mexico Bank,
Deming, New Mexico; GRANT
COUNTY DETENTION CENTER,
County of Grant, New Mexico, Silver
City New Mexico; TOM LAWS;
LAWS CORPORATION; LUBBOCK
COUNTY DISTRICT ATTORNEY’S
OFFICE; CAMERON COWAN,
Assistant District Attorney, Lubbock,
Texas,

Defendants–Appellees.

ORDER AND JUDGMENT *

Before LUCERO, BALDOCK, 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
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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 Richard G. Kirby, proceeding pro se, appeals from numerous orders of the

district court dismissing his claims against defendants. 1 Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

I

In his seventy-one page first amended complaint, Kirby sued forty-six

defendants, including public entities, public officials, prosecutors, private

citizens, and banks for alleged violations of 42 U.S.C. §§ 1983, 1985, and 1986,

and for illegally restricting his business activities and assets. Kirby also sought

an injunction against some defendants to prevent future incarceration and

retaliation. Much of his complaint focuses on people and entities involved in the

investigation and prosecution of criminal charges against him. 2 Early in this

litigation, the district court denied Kirby’s motion for a preliminary injunction;

we affirmed that order in Kirby v. Dallas County Adult Probation Department,

280 F. App’x 743 (10th Cir. 2008) (unpublished). Kirby’s claims were eventually

disposed of in numerous orders of dismissal.

1
Appeal No. 08-2265 is from eleven separate district court orders. Appeal
No. 08-2292 is from a later-entered order. We have consolidated Kirby’s two
appeals for disposition.
2
At the time he initiated this suit Kirby was not incarcerated, but later in
the proceedings he became—and remains—incarcerated.

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 II

Kirby advances three arguments challenging the district court’s disposition

of the entire case. First, he contends that this appeal is premature because the

court did not resolve all of his claims and motions. He asserts that claims against

Gene Crawford and Harold Johnson have not been decided; but those claims were

dismissed in an October 9, 2008, order. The allegedly unresolved motions

concern his requests: (1) to file an affidavit; (2) for a preliminary injunction; and

(3) for declaratory relief. These motions were either non-dispositive or resolved

by the court’s orders.

Next, Kirby argues that the district court improperly allowed the attorneys

for Tom Laws and the “Lubbock Defendants” to withdraw. This alleged error

does not affect Kirby, and thus is no basis for reversal even if it were somehow

erroneous. See generally Wyoming v. Livingston, 443 F.3d 1211, 1226 (10th Cir.

2006).

Kirby’s last overarching argument is nothing more than a summary of the

law of equity, which he fails to link to any particular order or defendant. We do

not consider conclusory and undeveloped arguments on appeal. See Adler v.

Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments

inadequately briefed in the opening brief are waived.”).

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 III

In addition to his generalized contentions, Kirby makes numerous

arguments regarding specific defendants. We address each in the following

sections.

A

Kirby claims that the Lubbock County District Attorney and Cameron

Cowan, an assistant district attorney, violated his constitutional rights by

prosecuting him after Kirby’s alleged victim signed an affidavit stating that he

would not testify. Kirby further claims that Cowan provided false information

that resulted in an increased bond, which eventually led to “a cascade of bond

forfeitures.” As relief for these asserted violations, Kirby seeks compensatory

damages and an injunction to protect him against “malicious prosecutorial

actions” and “freedom from the threat of incarceration.” The district court

dismissed these claims as barred by the doctrine of absolute prosecutorial

immunity.

“We review de novo a district court’s conclusion on the question of

absolute immunity.” Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994).

“State prosecutors are entitled to absolute immunity against suits brought

pursuant to [§] 1983 for activities intimately associated with the judicial process,

such as initiating and pursuing criminal prosecutions.” Id. (quotations and

ellipses omitted). Actions more appropriately characterized as “investigative or

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administrative” are not protected by absolute immunity. Pfeiffer v. Hartford Fire

Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991). We agree with the district court

that Kirby’s allegations relate to activities intimately associated with the judicial

process. Indeed, his claim is primarily based on defendants’ decision to prosecute

and participation in bond proceedings, which are core prosecutorial functions.

Accordingly, dismissal of this claim was proper.

B

In his complaint, Kirby claimed that Tom Laws perjured himself in Kirby’s

criminal case. 3 The district court dismissed this claim under the doctrine of

absolute witness immunity.

We review de novo the issue of absolute immunity. Gagan, 35 F.3d at

1475. “[A]ll witnesses enjoy absolute immunity from civil liability

under [§] 1983 for their testimony in a prior trial. . . . [W]e have extended

[witness immunity] to alleged conspiracies to commit perjury.” Hunt v. Bennett,

17 F.3d 1263, 1268 (10th Cir. 1994). We thus affirm the dismissal of this claim.

C

According to Kirby, First New Mexico Bank d/b/a Copper County Escrow,

its Vice President Martha Stewart, and unknown bank employees wrongfully

disclosed documents to third parties during the course of a state-court declaratory

3
Kirby also alleged that Laws failed to produce subpoenaed documents in
that case. However, Kirby’s criminal case is not before us on appeal.

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judgment action. 4 The district court dismissed this claim as precluded by res

judicata because a state court had previously held Kirby lacked standing to

contest the alleged disclosures.

Kirby fails to address res judicata or explain how the court erred in

applying the doctrine. Although we construe his pro se briefs liberally, Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we will not assume

the role of advocate or address an issue that a pro se litigant fails to discuss in his

brief, see Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).

D

Kirby sued the Silver City Police Department, Lieutenant Ham, and several

unknown police officers for false arrest. According to the first amended

complaint, Kirby was arrested in New Mexico in March, 1991, on a warrant that

had been “dismissed.” Kirby’s complaint was not filed until July 2004,

prompting defendants to file a motion to dismiss on the ground that this claim is

time-barred. 5

In response to the motion, Kirby recast his claim as malicious abuse of

process and conspiracy. He did not explain why the abuse of process and/or false

4
Frederick H. Sherman, a lawyer who represented First New Mexico Bank
in the state-court lawsuit, was also named as a defendant. Kirby does not contest
the court’s order dismissing his claims against Sherman in this appeal.
5
A § 1983 claim arising in New Mexico is subject to a three-year statute of
limitations. Mondragon v. Thompson, 519 F.3d 1078, 1081 (10th Cir. 2008).

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arrest claims were timely, but argued that he only recently learned of the

conspiracy. The district court held that the false arrest and abuse of process

claims were time-barred, and that the complaint failed to state a conspiracy claim.

On appeal, Kirby does not challenge the court’s determination that his false

arrest and/or abuse of process claims are time-barred, nor does he challenge the

court’s holding that he failed to adequately plead a conspiracy claim. He simply

reiterates his assertion that he was unaware of the conspiracy until sometime in

2003 and refers us to his response to the motion to dismiss. Neither his response

nor his brief on appeal address the adequacy of his conspiracy allegations.

Because we will not address issues that Kirby fails to discuss in his brief, we

affirm the district court’s dismissal of these claims. See Drake, 927 F.2d at 1159.

E

Kirby claimed in his complaint that the Kansas Securities Division (the

“Division”), Gary Fulton, and Scott Schultz 6 intentionally manipulated their

investigations and conspired with state police in New Mexico to falsely charge

him with a crime and to seize his property without a warrant. He further claimed

that Steve Howe, a prosecutor in the district attorney’s office in Johnson County,

Kansas, conspired to obtain warrants in order to incarcerate Kirby without bond.

These defendants moved to dismiss on various grounds, including Eleventh

6
The complaint identifies the Division as the entity responsible for
upholding Kansas securities law, Fulton as an investigator for the Division, and
Schultz as a Division supervisor and lawyer.

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Amendment immunity as to the Division and its employees, and absolute

prosecutorial immunity as to Howe.

We agree with the district court that Howe is entitled to absolute

prosecutorial immunity. Kirby attempts to shoehorn his claims against Howe into

the exception to absolute immunity for prosecutors who attest to the truth of the

facts in an affidavit used to obtain an arrest warrant. See Scott v. Hern, 216 F.3d

897, 909 (10th Cir. 2000). However, this argument is belied by the complaint,

which alleges only that Howe obtained warrants—not that he attested to the facts

used to obtain them.

Although the district court did not dismiss the claims against the Division,

Fulton, and Schultz on Eleventh Amendment grounds, we address this issue first

“[b]ecause an assertion of Eleventh Amendment immunity concerns the subject

matter jurisdiction of the district court.” Ruiz v. McDonnell, 299 F.3d 1173,

1180 (10th Cir. 2002). “With certain limited exceptions, the Eleventh

Amendment prohibits a citizen from filing suit against a state in federal court.

To assert Eleventh Amendment immunity, a defendant must qualify as a state or

an ‘arm’ of a state.” Id. (citation omitted). “Eleventh Amendment immunity

applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or

money damages.” Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1252

(10th Cir. 2007) (citation omitted). Employees of an arm of the state who are

sued in their official capacities are “generally entitled to assert the same

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immunities as the governmental entity for which he or she works.” Ruiz, 299

F.3d at 1180 (citation omitted).

“If a state entity is more like a political subdivision—such as a county or

city—than it is like an instrumentality of the state, that entity is not entitled to

Eleventh Amendment immunity.” Steadfast, 507 F.3d at 1253 (citation omitted).

Based on Kirby’s complaint, it is clear that the Division is an arm of the state,

entitling it and its employees Fulton and Schultz, to Eleventh Amendment

immunity. See Ruiz, 299 F.3d at 1180 (relying on complaint’s allegations in

determining state department was an arm of state).

F

Kirby also alleged that Las Cruces Mayor Bill Mattiace made a bomb threat

and later perjured himself at Kirby’s criminal trial. In addition, Kirby asserted

that detective Ricky Madrid and investigator J.D. Jones refused to charge

Mattiace for the bomb threat and conspired with state officials to file securities

charges against Kirby.

Rather than addressing the grounds on which the district court dismissed

these claims (including the failure to state a claim for relief and the lack of any

state action on Mattiace’s part) Kirby argues on appeal that he was injured by a

conspiracy between these defendants. This recast conspiracy claim also fails

because the only possible injury that can be inferred from the alleged misconduct

is either Kirby’s resulting criminal conviction itself or damages arising therefrom.

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Any such claims are barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),

which holds that a plaintiff may not recover damages for “harm caused by actions

whose unlawfulness would render a conviction or sentence invalid” unless the

plaintiff can first prove that the conviction “has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court’s issuance of a

writ of habeas corpus.” Kirby has not made such a showing.

G

Kirby’s claim against the Grant County Detention Center (the “Detention

Center”) and John and Jane Doe is based on the allegation that unknown

employees of the Detention Center conspired with Arnold Chavez, an investigator

for the Grant County District Attorney’s Office, to poison Kirby and to deny him

medical attention, food, and water. He alleges the Detention Center is vicariously

liable because it is responsible for the policies, practices, and customs of New

Mexico detention centers, and that John and Jane Doe were charged with

upholding these policies, practices, and customs.

For the Detention Center to be liable for John and Jane Doe’s actions,

Kirby was required to establish that it “contributed to the constitutional violation

through execution of its policy or custom.” Pietrowski v. Town of Dibble, 134

F.3d 1006, 1009 (10th Cir. 1998). However, in response to the motion to dismiss,

Kirby conceded that the Detention Center’s policy is to secure prisoners in a safe

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manner. This admission is the death knell for any claim against the Detention

Center.

As to John and Jane Doe, Kirby shifted away from a theory of liability

based on a conspiracy to implement Detention Center policy to a theory based on

a conspiracy aimed at intentionally harming him. The district court dismissed this

claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

“The legal sufficiency of a complaint is a question of law, and a Rule

12(b)(6) dismissal is reviewed de novo.” Smith v. United States, 561 F.3d 1090,

1098 (10th Cir.), petition for cert. filed (U.S. Nov. 4, 2009) (No. 09-549).

“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all

well-pleaded factual allegations in a complaint and view those allegations in

the light most favorable to the plaintiff.” Id. “The court’s function on a

Rule 12(b)(6) motion is . . . to assess whether the plaintiff’s complaint alone is

legally sufficient to state a claim for which relief may be granted.” Id. (quotation

omitted). “Conclusory allegations of conspiracy are insufficient to state a valid

§ 1983 claim.” Hunt, 17 F.3d at 1266 (quotation omitted). Instead, a plaintiff is

required to “allege specific facts showing agreement and concerted action.” Id.

On appeal, Kirby effectively concedes that his complaint failed to state a

conspiracy claim, but argues that the case should be remanded for discovery to

uncover the identity of the person who allegedly placed mercury in a blueberry

pie served to him. However, the liberal pleading standard under the federal rules

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“does not unlock the doors of discovery for a plaintiff armed with nothing more

than conclusions.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009).

We agree with the district court that Kirby has not advanced a plausible claim for

relief against John and Jane Doe.

H

Charles J. Quinn is a former Secret Service agent who retired in 2000.

Kirby alleges that Quinn conspired with various state and federal officials to

bring criminal charges against him based on false information and to improperly

seize his property. Quinn filed a motion to dismiss on the ground that the claims

against him were time-barred. Quinn’s affidavit in support of the motion

established that his first investigation of Kirby began in 1991 and concluded in

1992. His second investigation began in 1999, and was still on-going when he

retired in 2000. According to Quinn, his investigative activities took place in

Kansas. Kirby never challenged these facts or addressed the statute of limitations

in his response.

Because Quinn was a federal agent, the district court recast Kirby’s claims

against him as arising under Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388, 389 (1971). Kirby does not dispute that

Bivens actions borrow the general personal injury limitations statute in the state

where the action arises or that Kansas has a two-year statute of limitations for

Bivens claims. Instead, he appears to argue that his was a claim for civil

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conspiracy under § 1983. However, Kansas’ two-year statute of limitations

applies to § 1983 claims as well. Laurino v. Tate, 220 F.3d 1213, 1218 (10th Cir.

2000). Accordingly, we affirm the dismissal of these time-barred claims.

I

The Butler County Sheriff’s Department, Randy Coffman, and Mike Tanner

successfully moved to dismiss Kirby’s claims against them for lack of personal

jurisdiction. On appeal, Kirby neglects to address personal jurisdiction, arguing

instead that the district court erred because the complaint states a claim against

these defendants. This argument misses the mark: Without personal jurisdiction,

the district court properly dismissed the claims regardless of whether the

complaint states a claim for relief.

J

Kirby also asserted claims against: (1) New Mexico state prosecutors

James B. Foy, Mary Lynn Newell, Tim Garner, Tom Clark, Michael Cain, and

Randall Harris; (2) the New Mexico Department of Regulation and Licensing, the

New Mexico Securities Division, Bruce Kohl (the Division’s legal counsel), and

James Maes, an investigator; and (3) a New Mexico district attorney’s

investigator, Arnold Chavez.

The district court held that the state prosecutors are entitled to absolute

immunity, a decision we review de novo. Gagan, 35 F.3d at 1475. Kirby argues

that absolute immunity does not apply because the prosecutors’ activities were

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primarily investigative rather than prosecutorial, citing their preparation of

warrants and participation in searches and seizures. Although actions more

appropriately characterized as investigative or administrative are not protected by

absolute prosecutorial immunity, Pfeiffer, 929 F.2d at 1490, Kirby’s amended

complaint contains no allegations that any prosecutor actually participated in a

search or seizure. To the contrary, the alleged activities are clearly prosecutorial.

As to the state agencies and their employees, the district court held those

claims are barred by the Eleventh Amendment. Kirby fails to address Eleventh

Amendment immunity; instead, he merely summarizes the alleged misconduct.

Once again, we will not assume the role of advocate and address an issue that a

party fails to discuss in his brief. Drake, 927 F.2d at 1159.

The district court further held that the conspiracy claim against Chavez, an

investigator, could not survive a motion to dismiss because it did not allege

sufficient facts to support a conspiracy claim. As noted above, “[c]onclusory

allegations of conspiracy are insufficient to state a valid § 1983 claim.” Hunt, 17

F.3d at 1266 (quotation omitted). Kirby’s vague allegations that Chavez

conspired with two unnamed detention facility guards to poison him and deny him

medical attention, food, and water falls well short of our pleading requirements.

K

Gene Crawford and Harold Johnson are alleged to be private citizens of

New Mexico. Kirby claimed that Crawford: (1) conspired with others to

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surreptitiously copy records from Kirby’s personal computer and later provided

those records to the New Mexico Securities Division; (2) attempted to besmirch

Kirby’s name to business associates; and (3) sought to have charges filed against

Kirby. Together, Crawford and Johnson are alleged to have conspired with others

to intercept Kirby’s telephone communications and to have encouraged others to

cease doing business with Kirby.

“[T]he only proper defendants in a Section 1983 claim are those who

represent the state in some capacity, whether they act in accordance with their

authority or misuse it.” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442,

1447 (10th Cir. 1995) (quotation omitted). Thus, Kirby has no claim against

these private-citizen defendants under § 1983. Additionally, § 1985(3) was

intended only to reach conspiracies “motivated by some racial, or perhaps

otherwise class-based, invidiously discriminatory animus.” Tilton v. Richardson,

6 F.3d 683, 686 (10th Cir. 1993) (quotation omitted). Even if the complaint

sufficiently pled a conspiracy, Kirby has not alleged discriminatory animus.

Further, because Kirby lacks a claims under § 1985, there is no claim under §

1986. See Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977) (“Inasmuch as

the Section 1985 action is insufficient, the allegations under 42 U.S.C. Section

1986 also fail.”).

L

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 Finally, Kirby sued the Dallas County (Texas) Probation Department,

probation officers Mark Olsen, D. Todd Hill, and Laura Caraway, and assistant

director Jim Mills regarding their supervision of Kirby’s parole. He contends

these defendants failed to credit him with supervision fees and refused to waive

restitution fees. He sought orders: (1) requiring the defendants to acknowledge

his monthly mail-in reports; (2) barring any future charges for parole violations;

(3) recognizing good time credits; (4) enforcing his plea agreement; (5) requiring

the reinstatement of probation; and (6) dismissing a duplicate warrant.

The district court dismissed these claims in part on Eleventh Amendment

immunity and qualified immunity grounds. On appeal, Kirby does not challenge

these rulings. We therefore affirm the dismissal because Kirby has failed to

advance any argument of error. See Drake, 927 F.2d at 1159.

IV

We AFFIRM the orders of the district court. We DENY Kirby’s motion to

correct the record. We GRANT his request to proceed without prepayment of

filing fees for both appeals and remind Kirby of his continuing obligation to make

partial payments until the filing fees are paid in full. See 28 U.S.C.

§ 1915(b)(1)-(2).

Entered for the Court

Carlos F. Lucero
Circuit Judge

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