FILED
United States Court of Appeals
Tenth Circuit
January 27, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DARRYL WAYNE MANCO,
No. 09-3251
Plaintiff-Appellant,
(D. of Kan.)
v. (D.C. No. 08-CV-03205-SAC)
JOHN/JANE DOES (1), employed as
Mail Room Employees by the Kansas
Department of Corrections S.A.T.P.
and Kansas Bureau of Investigations,
in their individual and official
capacities; S. BUSER, employed as
Mail Room Supervisor, El Dorado
Correctional Facility, in her individual
and official capacity; JJ SMITH,
employed as Sergeant of Intelligence
Investigation, El Dorado Correctional
Facility, in his individual and official
capacity; T. J. HERMECK, employed
as Lieutenant of Intelligence
Investigation, El Dorado Correctional
Facility, in his individual and offical
capacity; MIKE MYERS, employed as
former Facility Specialist, El Dorado
Correctional Facility, in his individual
and official capacity; DEBBIE
BRATTON, employed as Deputy
Warden of Operations, El Dorado
Correctional Facility, in her individual
and official capacity; JOHN A.
SCHELL, employed as a psychologist
at the Topeka Diagnostic Center, in
his individual and official capacity;
JOHN SHULL, doctor, employed as a
Dentist at Ellsworth Correctional
Facility, in his individual and official
capacity; JOHN/JANE DOES (2),
employed as (former) Chief Security
Officers of Intelligence Investigation,
Lansing Correctional Facility, in their
individual and official capacity;
JOHN/JANE DOES (3), employed as
(former) Directors of Enforcement,
Apprehension and Investigation, in
their individual and official capacity;
ROGER BONNER, employed as
(former) Chief Security Officer of
Intelligence Investigation, Lansing
Correctional Facility, and currently
employed as Director of Enforcement,
Apprehension and Investigation, in his
individual and official capacity; JOHN
LAMB, employed as Director of
Enforcement, Apprehension and
Investigation, in his individual and
official capacity; RAY LOWERY,
Administrative Executive for
D.C.C.C.A., Director of Correctional
Programs, in his individual and
official capacity; BARBARA
OWENS, employed as (former)
Director of S.A.T.P./D.C.C.C.A.,
currently employed as Director of
Quality Assurance for D.C.C.C.A., in
her individual and official capacity;
RICK KENDALL, employed as
Director of S.A.T.P./D.C.C.C.A.,
Lansing Correctional Facility, in his
individual and official capacity; JOHN
BECHTOLD, employed as (former)
SST, Lansing Correctional Facility, in
his individual and official capacity;
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DAVID R. MCKUNE, Warden,
Lansing Correctional Facility, in his
individual and official capacity;
ROBERT HANNIGAN, employed as
(former) Warden, Hutchinson
Correctional Facility, in his individual
and official capacity; MICHAEL
NELSON, employed as (former)
Warden, El Dorado Correctional
Facility, in his individual and official
capacity; RAYMOND ROBERTS,
employed as Warden, El Dorado
Correctional Facility, in his individual
and official capacity; (FNU) LYONS,
employed as (former) Lieutenant of
Intelligence Investigation, Hutchinson
Correctional Facility, in her individual
and official capacity; JOHN/JANE
DOES (4), employed as (former)
Deputy Wardens of Operations,
Lansing Correctional Facility, in their
individual and official capacities;
JOHN/JANE DOES (5), employed as
(former) Information Resource
Managers, Information Technology
Department, in their individual and
official capacities; CHARLES
SIMMONS, employed as (former)
Secretary of Corrections, currently
employed as Resource Manager,
Information Technology Department,
in his individual and official capacity;
ROGER WERHOLTZ, employed as
Secretary of Corrections, in his
individual and official capacity;
WILLIAM CUMMINGS, employed as
Secretary of Corrections Designee, in
his individual and official capacity;
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JOHN/JANE DOES (6), Kansas
Bureau of Investigation, in their
individual and official capacities;
KATHLEEN SEBELIUS, Kansas
Governor, in her individual and
official capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **
Darryl Wayne Manco, a Kansas state prisoner proceeding pro se, brings a
host of civil rights claims under 42 U.S.C. § 1983. Manco’s claims center on his
allegation that prison officials implanted a radio frequency device in his body to
track his movements and thoughts, among other things. The district court
dismissed Manco’s case as frivolous and denied him leave to proceed on appeal in
forma pauperis.
*
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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district
court’s dismissal, find Manco’s appeal frivolous, and assess two strikes against
him pursuant to 28 U.S.C. § 1915(g).
I. Background
Manco’s 49-page complaint describes a “myriad of horrible conditions”
arising from his incarceration. R., Vol. 3 at 89. Manco alleges that prison
officials have implanted a tracking device in his jaw, and are engaging in a series
of unlawful rehabilitation methods. He also claims that prison officials
intercepted and destroyed his mail when he attempted to reveal these practices.
He frames a retaliation claim because mental health staff ordered him to be
transferred to several different prisons and otherwise denied him privileges and
parole after he made public his claims of mistreatment. These actions amount to
violations of his First, Eighth, and Fourteenth Amendment rights, he claims.
The district court dismissed Manco’s claims. The court held his mail
interference claims were both time barred and not well pleaded. Next, it found
Manco’s claims relating to the tracking device had no factual basis, and therefore
it dismissed them as frivolous. Finally, in as much as Manco brought habeas
claims, the district court dismissed them without prejudice because they were
improperly framed as civil rights claims.
Manco appeals the dismissal, relying on substantially the same arguments
and evidence he presented to the district court.
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II. Discussion
We review a district court’s dismissal of a frivolous claim for an abuse of
discretion. McWilliams v. Colorado, 121 F.3d 573, 574–75 (10th Cir. 1997). A
complaint or appeal is frivolous when it “lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). We find the district
court committed no error when it dismissed Manco’s claims as frivolous.
The district court did not abuse its discretion when it held Manco’s claims
of mail interference were frivolous. Although Manco filed numerous complaints
about mail interference with prison management, a legal services provider at the
prison and the warden concluded that Manco’s mail had been delivered properly.
Indeed, the appeal record shows that the person with whom Manco was
corresponding sent many letters to Manco over several years that verified the
receipt of Manco’s letters.
Even if Manco explained who interfered with his mail or what mail was
interfered with, his mail-related claims are time barred. Liberally construed,
Manco’s complaint alleges mail interference as late as 2005. The statute of
limitations for a § 1983 action in Kansas lapsed in 2007, a year before Manco
filed this case. See Wilson v. Garcia, 471 U.S. 261, 276 (1985) (holding § 1983
actions are governed by state statute of limitations for personal injury); K AN .
S TAT . § 60-513(a) (providing a two-year statute of limitations).
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The district court also did not abuse its discretion when it held Manco’s
claims related to the alleged tracking device were frivolous. Manco’s theory that
numerous state officials monitor his thoughts and send him inaudible, profane
messages is not supported by any evidence. Manco provides citations to various
patents and secondary literature that describe tracking devices. Even if, for the
sake of argument, this court assumes that such devices exist, Manco fails to
provide evidence that officials implanted a device in his body, nor does he give a
plausible motive for state officials to embark on such an endeavor. We agree
with the district court that Manco’s tracking device claims are frivolous. See
Denton v. Hernandez, 504 U.S. 25, 33 (1992) (describing frivolous claims as
“fanciful,” “fantastic,” and “delusional,” and holding “a finding of factual
frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are judicially noticeable
facts available to contradict them”).
Finally, in so far as Manco seeks parole and credit for good behavior, his
claims are not properly brought under § 1983. The Supreme Court has made clear
that a Ҥ 1983 action will not lie when a state prisoner challenges the fact or
duration of his confinement and seeks either immediate release from prison or the
shortening of his term of confinement.” Wilkinson v. Dotson, 544 U.S. 74, 79
(2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 482, 489 (1973)) (internal
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citations and punctuation omitted). Instead, prisoners must seek either federal
habeas corpus relief or relief under state law. Id. at 78.
III. Conclusion
We dismiss Manco’s appeal as frivolous, and assess two strikes against him
under 28 U.S.C. § 1915(g). See Jennings v. Natrona County Det. Ctr. Med.
Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the
appeal of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B),
both dismissals count as strikes.”). Manco’s motion for leave to file a
supplemental brief is denied. Manco’s application to appeal in forma pauperis is
denied, and the full amount of his filing fee should be paid immediately.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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