FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 10, 2018
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
VICTOR ANDREW APODACA,
Plaintiff - Appellant,
v. No. 17-2204
(D.C. No. 2:16-CV-01227-WJ-GJF)
WARDEN R.C. SMITH; N. ALANIZ; (D.N.M.)
MRS. MALDONADO; MRS. STRUB;
MAILROOM SUPERVISOR STEVI
MADERA; SECRETARY OF
CORRECTIONS, N.M.C.D. GREG
MARCANTEL; DIRECTOR JERRY
ROARK; EMPLOYEES AT L.C.C.F;
MRS. GOMEZ; GEO GROUP, INC.,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
Pro se prisoner 1 Victor Andrew Apodaca appeals from the district court’s
*
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. 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judgment is not binding precedent except under the doctrines of law of the case,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.
1
We construe the filings of a pro se litigant liberally, see Erickson v.
(continued...)
dismissal of his civil rights action. Although Mr. Apodaca’s pleadings stated that
they were filed pursuant to the New Mexico Tort Claims Act, N.M. S TAT . A NN .
§§ 41-4-1 to -30, the substance of his claims allege violations of his due-process
rights and retaliation in violation of the First, Fifth, and Fourteenth Amendments.
The district court ultimately dismissed Mr. Apodaca’s action because he failed to
allege sufficient facts to support a colorable claim against any of the defendants
named in his pleadings.
Mr. Apodaca’s present appeal similarly fails to set forth any legible claims,
providing nothing more than conclusory statements and references to various
constitutional provisions. Mr. Apodaca also fails to address the basis of the
district court’s dismissal of his claims, i.e., his failure to adequately allege any
constitutional or tort claims.
Exercising jurisdiction under 28 U.S.C. § 1291, we DISMISS Mr.
Apodaca’s appeal as frivolous and also DENY Mr. Apodaca in forma pauperis
(“IFP”) status. 2 And, because Mr. Apodaca’s appeal is frivolous, we further
impose a “strike” under 28 U.S.C. § 1915(g).
1
(...continued)
Pardus, 551 U.S. 89, 94 (2007) (per curiam), but our role is not to serve as his
advocate, see Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
2
The district court denied Mr. Apodaca IFP status for purposes of
appeal, certified that his appeal would not be taken in good faith, and issued a
“strike” against Mr. Apodaca under 28 U.S.C. § 1915(g). Mr. Apodaca has filed
an IFP motion on appeal, which we now consider and deny.
2
I
Mr. Apodaca was incarcerated at the Lea County Correctional Facility in
Hobbs, New Mexico, when he filed his original complaint. See R. at 419 (Mem.
Op. & Final Order of Dismissal, dated Nov. 20, 2017). He originally filed his
complaint in the First Judicial District Court in Santa Fe County, New Mexico,
naming Warden R.C. Smith, N. Alaniz, Mrs. Maldonado, Mrs. Strub, Mailroom
Supervisor Stevi Madera, and Geo Group as defendants. Id. Mr. Apodaca then
filed an amended complaint on October 13, 2016, in which he included additional
defendants: Secretary of Corrections Greg Marcantel, Director Jerry Roark,
“Employs at L.C.C.F.,” and Mrs. Gomez. Id. at 419–20. On November 8, 2016,
defendant Madera removed the case to federal court.
On September 20, 2017, the district court dismissed Mr. Apodaca’s
complaint and amended complaint because they failed to state a claim against any
of the named defendants. 3 See id. at 347–51 (Mem. Op. & Order of Dismissal,
dated Sept. 20, 2017). However, the court dismissed Mr. Apodaca’s claims
without prejudice, and granted him thirty days to remedy the deficiencies. Id. at
352.
3
To clarify, the district court issued two orders: (1) an order
dismissing without prejudice Mr. Apodaca’s complaint and amended complaint on
September 20, 2017, see R. at 344–53, and (2) a final order dismissing with
prejudice Mr. Apodaca’s belated request to file what would have been his second
amended complaint (though the district court referred to that proposed filing as
his “amended complaint”) on November 20, 2017, see id. at 419–27.
3
Mr. Apodaca did not file what would have been his second amended
complaint within the thirty-day period, and instead filed, on November 13, 2017,
a document styled, “File Amended Complaint Proposed,” and stated in an
attachment to that filing that he did not receive the district court’s September 20
order until November 7. Id. at 354 (File Am. Compl. Proposed, dated Nov. 13,
2017), 358 (Mot. & Mem. Br. Answer, dated Nov. 13, 2017). However, the
district court rejected that assertion, noting that Mr. Apodaca did not provide any
evidence of his late receipt and did not state that he had belatedly received the
order under penalty of perjury. Id. at 421.
The district court then construed Mr. Apodaca’s filing as a motion for leave
to file a second amended complaint, and denied it pursuant to Federal Rule of
Civil Procedure 15. The district court reasoned that while Mr. Apodaca sought to
add three more defendants, his proposed complaint failed to state any facts raising
a claim for relief against those additional defendants and did not address his prior
failures to state colorable claims against any of the earlier-named defendants. Id.
at 421–27. Accordingly, the district court held that permitting Mr. Apodaca to
amend his complaint was futile, and dismissed the case with prejudice. The
district court also imposed a “strike” under § 1915(g). Id. at 426–27.
The district court entered final judgment on November 20, 2017, see id. at
4
428 (J., dated Nov. 20, 2017), and Mr. Apodaca timely appealed, 4 see id. at 429
(Notice of Appeal, dated Nov. 30, 2017).
II
The district court dismissed Mr. Apodaca’s case because his pleadings
failed to state any colorable claim against any defendant. See id. at 420 (holding
that “Plaintiff Apodaca failed to articulate specific factual allegations of
individualized conduct in violation of his constitutional rights” in his original and
amended complaints); id. at 426 (further holding that Mr. Apodaca’s proposed
second amended complaint “failed to cure pleading deficiencies in the Complaint
and Amended Complaint,” and therefore warranted “dismiss[al of] all claims and
causes of actions in this case”).
Mr. Apodaca’s present appeal does nothing to cause us to question the
propriety of the district court’s actions. More specifically, even construing Mr.
Apodaca’s pro se appellate brief liberally, see Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam), his brief fails to set forth any cognizable ground for this
court to find fault with the district court’s determination. The majority of his
briefing is spent discussing the Federal Rules of Civil Procedure 8(a)(2) and
12(b)(6) standards, see Aplt.’s Br. at 3–5, and the remainder of it simply refers to
various alleged constitutional violations without any supportive factual
4
Mr. Apodaca filed an amended notice of appeal on December 8,
2017, but the amended notice does not alter the scope of his appeal.
5
allegations linking those purported violations to specific defendants and without
any explanation of why the district court misconstrued his pleadings. See, e.g.,
id. at 2–5 (discussing “The Establishment Clause[] of the Fourteenth Amendment”
and stating that “Jewish believers” were denied access to the chapel without
providing any further facts in support of his claim; alleging that he and three
other inmates were subjected to a “group assult [sic],” without alleging who the
assaulters were, when it occurred, or any other supporting facts; and alleging that
“Plaintiff believes that Warden R.C. Smith had a personal vendetta and that it was
motivated by racial animus,” without stating a basis for that belief or any specific
constitutional violations that were caused by that alleged animus); see also Aplt.’s
App. at 358 (alleging, without any supporting facts, that his mail was
purposefully delayed).
In short, Mr. Apodaca’s present briefing does nothing to show that he
adequately stated a claim in his filings before the district court. As such, because
none of Mr. Apodaca’s arguments provide any ground to show that the district
court erred in dismissing his various pleadings, we find no reason to take issue
with the district court’s rulings.
III
We also conclude that Mr. Apodaca’s appeal is frivolous because his
appellate brief is itself wholly without merit. Under 28 U.S.C. § 1915(e)(2)(B)(i),
a “court shall dismiss the case at any time if the court determines that . . . the
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action or appeal . . . is frivolous or malicious . . . [or] fails to state a claim on
which relief may be granted.” “An appeal is frivolous when ‘the result is
obvious, or the appellant’s arguments of error are wholly without merit.’” Olson
v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993) (quoting Braley v. Campbell, 832
F.2d 1504, 1510 (10th Cir. 1987) (en banc)).
As discussed above, Mr. Apodaca’s brief on appeal presents a hodgepodge
of references to various laws and vague allegations, but does not weave those
various statements into coherent, colorable arguments. Even beyond that patent
shortcoming, Mr. Apodaca’s brief also does not refer to, much less dispute, the
district court’s basis for dismissing his case—i.e., his failure to state any viable
claims for relief in his numerous pleadings. His failure to address the district
court’s reasoning provides another ground for dismissal and a basis to find his
appeal, as a whole, to be frivolous. See Baccus v. Baccus, 564 F. App’x 951, 953
(10th Cir. 2014) (unpublished) (“Given the lack of any meaningful argument
responsive to the [district] court’s rationale for its decision, appellants have
waived any challenge to that decision. Because appellants fail to identify any
error in the district court’s rationale for its decision, this appeal is frivolous.”
(citation omitted)); cf. Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir.
1995) (“Because the appellant comes to the court of appeals as the challenger, he
bears the burden of demonstrating the alleged error and the precise relief
sought.”).
7
The only aspect of the district court’s decision that Mr. Apodaca even
acknowledges is the court’s conclusion that he failed to support his allegation that
he belatedly received the court’s order permitting him to file a second amended
complaint. Aplt.’s Br. at 1–2. However, his appellate brief simply restates his
position without providing any proof of the same. And, even if we were to accept
his contention, he nevertheless fails to address the rest of the district court’s
analysis regarding the inadequacies of his pleadings. In sum, based on his
appellate briefing, and in light of the totality of the record, we conclude that Mr.
Apodaca fails to set forth any non-frivolous argument that militates in favor of
reversal on any ground.
IV
A federal district court “may authorize the commencement . . . of any suit[
or] action . . . without prepayment of fees” under the IFP statute. 28 U.S.C.
§ 1915(a)(1). IFP status ensures “equal treatment for every litigant before the
bar.” Coppedge v. United States, 369 U.S. 438, 447 (1962). However, “[l]eave to
proceed without prepayment of fees and costs is a privilege, not a right.” Treff v.
Galetka, 74 F.3d 191, 197 (10th Cir. 1996).
Because Mr. Apodaca has not advanced a “reasoned, nonfrivolous argument
on the law and facts in support of the issues raised on appeal,” Watkins v. Leyba,
543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n,
115 F.3d 809, 812 (10th Cir. 1997)), we deny him IFP status. See also
8
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (concluding that a
“reasoned, nonfrivolous argument on the law and facts in support of the issues
raised on appeal” is a prerequisite for being granted IFP status); accord Baccus,
564 F. App’x at 953. And, because we conclude that his appeal is frivolous, we
impose a second strike against Mr. Apodaca. See Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1175 (10th Cir. 2011) (holding that “a dismissal under 28
U.S.C. § 1915A counts as a strike when the action was dismissed as frivolous,
malicious, or for failure to state a claim, the same grounds listed in 28 U.S.C.
§ 1915(g)”); Burnett v. Allbaugh, No. 17-6133, 2017 WL 5157540, at *4 (10th
Cir. Nov. 7, 2017) (unpublished) (“Because we affirm dismissal of his complaint
for failure to state a claim, we necessarily affirm the imposition of a strike. We
also assess another strike for taking a frivolous appeal.”).
V
Based on the foregoing, we DENY Mr. Apodaca IFP status on appeal,
DISMISS his appeal as frivolous, and impose a strike pursuant to § 1915(g).
Mr. Apodaca is reminded of his duty to pay the unpaid balance of his filing fees
in full immediately.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
9