Berry v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 22, 2017
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Elisabeth A. Shumaker
Clerk of Court
DUANE LETROY BERRY,

Plaintiff - Appellant,

v. No. 17-6176
(D.C. No. 5:17-CV-00331-R)
UNITED STATES OF AMERICA, (W.D. Okla.)

Defendant - Appellee.
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ORDER AND JUDGMENT*
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Before KELLY, MURPHY, and MATHESON, Circuit Judges.**
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Plaintiff-Appellant Duane Letroy Berry, appearing pro-se, appeals from the

district court’s order dismissing his 42 U.S.C. § 1983 claim moving for “injunctive

relief and to ‘shut down the majority of Bank of America branches . . . in order to

settle the trust’s debt’” as frivolous. Order, Berry v. United States, 5:17-cv-00331-R

(W.D. Okla. July 7, 2017), ECF No. 7. Mr. Berry has been found incompetent to

stand trial on a federal charge based upon a delusional disorder. See United States v.

Berry, No. 15-20743, 2017 WL 3777072 (E.D. Mich. Aug. 31, 2017) (Order

*
This order and judgment is not binding precedent, except under the doctrines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 appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Authorizing Administration of Medication), appeal docketed, No. 17-2168 (6th Cir.

Sept. 28, 2017).

Mr. Berry has also filed a Judicial Notice of “Outrageous Government

Criminal Misconduct” claiming that he was improperly removed from federal

jurisdiction and placed in state custody. We deny that motion because it is unrelated

to Mr. Berry’s claim on appeal in this case and is the same claim as in a separate

appeal currently pending before this court by Mr. Berry. See Berry v. Fox, No. 17-

6192 (10th Cir. Aug. 22, 2017).

On appeal, Mr. Berry repeats his arguments made at the district court as well

as alleges new causes of action not in his initial complaint. We decline to consider

the new claims not presented in the original complaint on appeal. Mr. Berry’s claim

under 42 U.S.C. § 1983 fails as a matter of law because § 1983 claims apply only to

actions by state and local entities and not the United States government. Belhomme

v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997).

AFFIRMED. All pending motions are DENIED.

Entered for the Court

Paul J Kelly, Jr.
Circuit Judge