712 Fed.Appx. 769 (10th Cir. 2017), 17-2045, Sweat v. Rickards

Docket Nº:17-2045
Citation:712 Fed.Appx. 769
Opinion Judge:Nancy L. Moritz, Circuit Judge
Party Name:Alree B. SWEAT III, Plaintiff-Appellant, v. Det. Mike RICKARDS; Det. Jeff Fergusen; Deming Police Ofc. Z. Zigmon; John Doe 2, Defendants-Appellees.
Attorney:Alree B. Sweat, III, Pro Se William R. Babington, Jr., Roberto A. Cabello, Thomas R.A. Limon, City Attorney’s Office, City of Las Cruces, Las Cruces, NM, for Defendants-Appellees Det. Jeff Ferguson, Det. Mike Rickards Cody R. Rogers, Miller Stratvert, Las Cruces, NM, for Defendant-Appellee Deming...
Judge Panel:Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges. O’BRIEN, J., concurring and dissenting. MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE. MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE
Case Date:October 23, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 769

712 Fed.Appx. 769 (10th Cir. 2017)

Alree B. SWEAT III, Plaintiff-Appellant,

v.

Det. Mike RICKARDS; Det. Jeff Fergusen; Deming Police Ofc. Z. Zigmon; John Doe 2, Defendants-Appellees.

No. 17-2045

United States Court of Appeals, Tenth Circuit

October 23, 2017

Editorial Note:

UNPUBLISHED OPINION (See Fed. Rule of Appellate Procedure 32.1. See also U.S.Ct. of App. 10th Cir. Rule 32.1.)

Page 770

(D.C. No. 2:15-CV-00440-MV-LF) (D. New Mexico)

Alree B. Sweat, III, Pro Se

William R. Babington, Jr., Roberto A. Cabello, Thomas R.A. Limon, City Attorney’s Office, City of Las Cruces, Las Cruces, NM, for Defendants-Appellees Det. Jeff Ferguson, Det. Mike Rickards

Cody R. Rogers, Miller Stratvert, Las Cruces, NM, for Defendant-Appellee Deming Police Ofc. Zack Sigman

Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.

ORDER AND JUDGMENT[*]

Nancy L. Moritz, Circuit Judge

Proceeding pro se,1 New Mexico prisoner Alree Sweat III appeals the district court’s order dismissing his 42 U.S.C. § 1983 civil rights complaint and denying his motion to appoint counsel. We affirm.

I

In August 2013, Detective Michael Rickards obtained a search warrant for Sweat’s DNA while investigating several vehicle break-ins. Sweat refused to comply with the search warrant, so Officer Zack Sigman arrested Sweat for evasion. Sigman then brought Sweat to the Luna County Detention Center where Detective Jeff Ferguson executed the search warrant. A New Mexico state court found Sweat guilty on multiple counts of burglary of a vehicle. Sweat is currently serving the sentences for those offenses in a New Mexico correctional facility.

Sweat previously pursued two federal lawsuits stemming from the August 2013 arrest. In the first, he brought claims against Rickards, a Detective John Doe, an Officer John Doe, and the judge who issued the search warrant. In the second, he similarly brought claims against Rickards, a Detective John Doe, and the judge who issued the search warrant. The district court dismissed the first suit for failure to state a claim on which relief could be granted. And it dismissed the second suit as duplicative of the first suit. Sweat didn’t appeal either dismissal. He then filed the instant lawsuit against several defendants, including Rickards, Ferguson, and Sigman.

The district court dismissed, ruling that Sweat’s complaint failed to state a claim for relief. Specifically, it concluded that the doctrine of res judicata barred Sweat’s claims against Rickards, Ferguson, and Sigman because Sweat named Rickards in his first lawsuit and because the claims against Sigman and Ferguson were identical to the claims Sweat brought against Officer John Doe and Detective John Doe in that suit. The district court then dismissed the remaining state-law claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915, reasoning that Sweat’s "conclusory listing of those causes of action [was] not sufficient to state any claim for relief." R., 221. Finally,

Page 771

the district court denied Sweat’s motion for appointment of counsel. Sweat appeals.

II

To the extent Sweat appeals the district court’s order dismissing his claims, we affirm. The district court premised that ruling on its conclusion that Sweat’s claims are barred by the doctrine of res judicata. And although Sweat advances numerous arguments on appeal, none of them "explain to us why [that conclusion] is wrong."2 Nixon v. City and Cty. of Denver, 784 F.3d 1364, 1366, 1369-70 (10th Cir. 2015); see also id. (affirming because appellant "utterly fail[ed] ... to explain what was wrong with the reasoning that the district court relied on in reaching its decision").

For the same reason, we also affirm the district court’s order denying Sweat’s request for the appointment of counsel. The district court concluded that the appointment of counsel wouldn’t "change the fact that [Sweat’s] contentions [were] legally insufficient." R., 212. And again, Sweat fails "to explain what was wrong" with that approach. Nixon, 784 F.3d at 1370.

* * *

For the foregoing reasons, we affirm the district court’s order. We also grant Sweat’s motion for leave to proceed without prepayment of costs or fees. But we remind Sweat of his continuing obligation to make partial payments until the filing fees are paid in full.

O’BRIEN, J., concurring and dissenting.

I join the Order and Judgment affirming the merits decisions made by the district court. I dissent from the grant of leave to appeal without prepayment of fees (in forma pauperis or ifp ) and would impose a strike for bringing a frivolous appeal.

The district judge denied Sweat’s request for leave to appeal without prepayment of fees, see 28 U.S.C. § 1915(a), because his supporting affidavit failed to show he was qualified for such relief. He reapplied to this Court and the majority of this panel has permitted the appeal to proceed without prepayment of fees. I disagree. His affidavit (filed in this appeal) is adequate to show his financial qualifications. That, alone, is insufficient. In order to avoid prepayment of fees and costs his appeal may not be frivolous. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (to succeed on a motion for leave to proceed on appeal without prepayment of fees, "an appellant must show a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal") (emphasis added). But it is.

The district judge issued two clear, comprehensive and cogent orders (attached) dismissing Sweat’s claims for failure to state a claim. In his filings with this Court, he offers no compelling or even arguably persuasive reason to believe the district judge erred. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (an argument, like a complaint, "is frivolous where it lacks an arguable basis either in law or in fact").

"The federal in forma pauperis statute, enacted in 1892...., is designed to ensure that indigent litigants have meaningful access to the federal courts."

Page 772

Id. at 324, 109 S.Ct. 1827. However, Congress also recognized "that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Id. Therefore, while we excuse prepayment of fees to prevent forfeiture of potentially meritorious appeals because of a person’s impecunious circumstances, frivolous appeals are not among those so excused because, by definition, they are not potentially meritorious. They ought not be encouraged. Sweat should be required to pay the filing fees prior to receiving a decision on the merits.

This frivolous appeal should amount to a strike under 28 U.S.C. § 1915(g) (bringing a civil action or taking an appeal that is dismissed as frivolous, malicious or fails to state a claim). See Jennings v. Natrona Cty. 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."), overruled on other grounds by Coleman v. Tollefson, __ U.S. __, 135 S.Ct. 1759, 1763, 191 L.Ed.2d 803 (2015). He also incurred a strike when his complaint was dismissed by the district court for failure to state a claim. Coleman, 135 S.Ct. at 1763 ("A prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal."). Finally, he has yet another strike for failure to state a claim. See Sweat v. Perea, et al., No. CV-14-00034-LH/LAM. Were this frivolous appeal to count, he would have three strikes. As it now stands he has at least two. Should he incur another strike he will be prohibited from bringing any civil action or taking an appeal in a civil case unless he "is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

Attachment

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

A.L.R.EE B. SWEAT III, Plaintiff,

v.

STATE OF NEW MEXICO, DET. MIKE RICKARDS (L645), CITY OF LAS CRUCES, CHIEF OF POLICE (JAIME MONTOYA), DET. JEFF FERGUSEN, CHIEF OF POLICE FOR DEMING (JOHN DOE), DEMING POLICE OFC. Z. ZIGMON, DIRECTOR OF LUNA COUNTY DETENTION CENTER (JOHN OR JANE DOE), LUNA COUNTY DETENTION CENTER BOOKING OFFICER JOHN DOE 1 AND JOHN DOE 2, Defendants.

No. CIV 15-0440 MV/LF

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE.

This matter is before the Court, sua sponte under 28 U.S.C. § 1915(e)(2) and rule 12(b)(6) of the Federal Rules of Civil Procedure, on Plaintiff’s complaint. Plaintiff is incarcerated, appears pro se, and has filed a Motion for Leave to Proceed Pursuant to 28 U.S.C. § 1915 ("IFP"). Because the Court grants the IFP motion, the filing fee for this civil rights complaint is $350.00. Under § 1915(b)(1), (2), Plaintiff must pay the full amount of the filing fee in installments. Based on the information in Plaintiff’s filings, the Court will waive the initial partial payment pursuant to § 1915(b)(1). Also before the Court are Plaintiff’s motions for extensions of time to cure deficiencies (Docs. 5, 8). The deficiencies have been cured, and these motions will be denied as moot. For reasons set out below, the Court will dismiss certain of Plaintiff’s claims.

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The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under § 1915(e)(2) "at any time if ... the action ... is frivolous or malicious; [or] fails to state a claim on which relief may be granted." The Court also may dismiss a complaint sua sponte under rule 12(b)(6) of the...

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