Mamer v. Collie Club ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 8 2000
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
LESLIE MAMER, on behalf of herself and others
similarly situated,
Plaintiff-Appellant,
No. 00-1066
v. (D. Colo.)
(D.Ct. No. 00-Z-50)
COLLIE CLUB OF AMERICA, INC.; GEORGE
ROOS; PAM DURAZZANO; RITA STANCZIK;
CARMEN LEONARD; JOE PURKHISER, as Officers
of the Corporation, and members of the Executive
Committee of the Collie Club of America, Inc., in their
capacity as District Directors; JACKIE HENSEN,
Alabama; DERYLEE HECIMOVICH, Alaska; RENEE
MILLISON, Arkansas; LINDA LATIMER, Arizona;
HELEN HUPE, Canada; REBECCA HENSON,
Colorado, CAROL COLEMAN, JULIE COLEMAN,
California (North); ED DEGNAR; NORMAN
NICHOLSON, California (South); VIRGINIA CUNEO,
Connecticut; ALLENE MCKEWEN, Florida; HELEN
DENTON, Georgia; MRS. JOHN POWERS, Hawaii;
JUDY DUNKLE, Idaho; LILY RUSSELL, Iowa; PATT
CALDWELL; KATHY STRANG, Illinois; MARY
JANE ANDERSON, Indiana; AKIRA KANDA, Japan;
JANE CLYMER, Kansas; MRS. WILLIAM
SKEETERS, Kentucky; KAREN O’BRIEN, Louisiana;
ARNOLD WOOLF, Maine; GRACE CALABRESE,
Maryland; EVELYN HONIG, Massachusetts; BERNIE
HOWARD, Michigan; GLORIA HILTNER, Minnesota;
JOEY PRICE, Mississippi; MARJORIE HIGGINS,
Missouri; CANDI SAPP, Nebraska; LAURA
LANGHAM, Nevada; ROBIN UNGANO, North
Carolina; LOUIS DURAZZANO, New Hampshire; JOE
RENO, New Jersey; JUDY HUMMELL, New Mexico;
NANCY WOLFE, New York (East); FLORENCE
BECK, New York (South); CHERLYN WICHLACZ,
New York (West); JEANNE MARRE; KURT BUSSE,
Ohio; PAMELA EDDY, Oklahoma; BARBARA
CLEEK, Oregon; DAVID SUPPLEE, Pennsylvania
(East); BARB LINDER, Pennsylvania (West); CAROL
CHISHOLM, Rhode Island; LINDA AYRES TURNER
KNORR, South Carolina; BETTY ABBOTT,
Tennessee; PHYLLIS AUTREY, Texas (North);
JANET FOLTZ, Texas (South); DIANE ANDERSON,
Utah; SASKIA WHALLON, Vermont; JUDITH
SMOTREL, Virginia; DOROTHY NEWKIRK,
Washington; LINDA COLLELI, West Virginia;
JOANNE HUFF, Wisconsin; DIRECTORS-AT-
LARGE; JOHN HONIG, Massachusetts; BARBARA
SCHWARTZ, New Hampshire; DORIS
WERDERMANN, Tennessee; DELEGATE TO THE
AKC; HAROLD SUNDSTROM, Florida,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, 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This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
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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.
Appellant Leslie Mamer appeals pro se the district court’s decision
dismissing sua sponte her complaint, raising allegations of civil rights and other
statutory violations. The district court dismissed the action for failure to state a
claim on which relief may be granted and lack of standing. We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
Ms. Mamer filed her complaint against the Collie Club of America, Inc. and
its various officers and committee members (hereafter “Collie Club”), claiming
they violated her and other club members’ federal constitutional rights under 42
U.S.C. § 1983, committed various crimes including violation of the Racketeering
Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, and violated
various unidentified provisions of the Internal Revenue Code. Prior to the filing
of any other pleadings, the district court dismissed her action, finding the
complaint did not allege facts showing the officers or committee members of the
Collie Club, a private organization, acted under the color of law as required by 42
U.S.C. § 1983. The district court also dismissed her criminal claims for lack of
standing, explaining private citizens cannot prosecute criminal actions. Finally,
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the district court found Ms. Mamer’s vague references to the Internal Revenue
Code insufficient to support a claim for relief.
On appeal, Ms. Mamer’s argument centers on her contention the district
court cannot dismiss her complaint on its own motion, or in other words, sua
sponte. She also contends she did not intend to file a civil rights action under 42
U.S.C. § 1983, but rather under 42 U.S.C. § 1985(3), and that her reference to §
1983 in her complaint is merely a typographical error or transposed citation,
which she intended to correct to read “§ 1985(3).”
We review the sufficiency of a complaint de novo, upholding the district
court’s dismissal for failure to state a claim only when the plaintiff fails to plead
facts, which, if proved, would entitle her to relief. See Perkins v. Kansas Dep’t of
Corrections, 165 F.3d 803, 806 (10th Cir. 1999). Likewise, we review questions
of standing de novo. State of Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.
1998). A district court may dismiss a pro se complaint sua sponte only where it is
“patently obvious” the plaintiff cannot prevail on the facts alleged, and an
opportunity to amend the complaint would prove futile. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (quotation marks and citation omitted).
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Our review of the record confirms the district court’s decision Ms.
Marmer’s petition is insufficient and subject to dismissal, for “patently obvious”
reasons. As the district court pointed out, a § 1983 action is inapplicable in cases
where the defendants are private entities or citizens not acting under the color of
law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). To the
extend Ms. Mamer claims her reference to § 1983 constitutes a mere
typographical error or transposed citation, we find her claim extremely suspect
given the fact she references § 1983 at least fourteen times in the complaint, and
never once refers to § 1985(3). Even if Ms. Mamer intended to assert an action
under 42 U.S.C. § 1985(3), her complaint continues to fail to state a claim on
which relief may be given. This is because:
[T]o state a claim under 42 U.S.C. § 1985(3) for a non-racially
motivated private conspiracy, if indeed such a claim can be stated, it
is necessary to plead ... that the conspiracy is motivated by a class-
based invidiously discriminatory animus [] and ... that the conspiracy
is aimed at interfering with rights that by definition are protected
against private, as well as official, encroachment.
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993), cert. denied, 510 U.S.
1093 (1994). Ms. Mamer’s complaint fails to even remotely plead allegations
necessary to state a § 1985(3) action.
As to her allegations of criminal activity, we have concluded, as did the
district court, that private citizens cannot prosecute criminal actions. See
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Higgins v. Neal, 52 F.3d 337, 1995 WL 216920 at *1 (10th Cir. Apr. 12, 1995)
(unpublished decision) (stating that “[b]ecause allowing private citizens to initiate
prosecutions would undermine prosecutorial discretion and the authority of
federal prosecutors, we conclude [the defendant] lacks standing to maintain this
criminal action”). In addition, we reject Ms. Mamer’s contention we should
consider her criminal complaints because she generally averred to RICO which
allows civil recovery. Even though we construe Ms. Mamer’s pro se pleadings
liberally, we find her general averments of facts allegedly supporting her loose
reference to RICO insufficient to state a claim on which relief may be granted.
See Hall, 935 F.2d at 1110 (10th Cir. 1981). Similarly, we find Ms. Mamer’s
conclusory allegations the Collie Club violated various unidentified Internal
Revenue Code provisions, insufficient for the purpose of stating a claim on which
relief may be granted. In sum, even a broad reading of Ms. Mamer’s complaint
“does not relieve [her] of the burden of alleging sufficient facts on which a
recognized legal claim could be based.” Id.
Finally, we address the Collie Club’s motion for sanctions against Ms.
Mamer for filing a “groundless and frivolous appeal.” In its motion, the Collie
Club requests attorneys’ fees, double costs and such other relief as deemed
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appropriate. 1 Under Federal Rule of Appellate Procedure 38, we have the power
to impose sanctions for frivolous appeals, and Ms. Mamer’s pro se status does not
prohibit us from sanctioning her. Cf. Olson v. Coleman, 997 F.2d 726, 728 (10th
Cir. 1993). In this case, Ms. Mamer’s primary argument on appeal attacks the
district court’s well-established and long-held authority to sua sponte dismiss a
complaint under appropriate circumstances. While this is a patently frivolous
ground for appeal, we decline to impose sanctions in the instant case due to Ms.
Mamer’s obvious lack of legal understanding, the fact she does not have a history
of frivolous appeals before this court, and given the quick dismissal by the district
court, which limited Collie Club’s litigation costs. We nevertheless admonish
Ms. Mamer for filing a frivolous appeal and advise that any future frivolous
appeals will warrant appropriate sanctions.
For these reasons, we deny the Collie Club’s motion for sanctions,
AFFIRM the district court’s dismissal of Ms. Mamer’s complaint, and DISMISS
the appeal.
1
Although the district court dismissed Ms. Mamer’s complaint sua sponte, the
Collie Club points out it expended resources researching and preparing a motion to
dismiss which it filed just hours prior to receiving the district court’s dismissal.
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Entered by the Court:
WADE BRORBY
United States Circuit Judge
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