Doran v. Robinson , 72 F. App'x 778 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 25 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
DOUGLAS TAYLOR DORAN,
Plaintiff - Appellant,
v. No. 03-2038
(D.C. No. CIV-02-1403-WPJ/DJS)
DR. PAUL ROBINSON, President of (D. New Mexico)
Sandia Labs,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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This order and judgment is not binding precedent except under the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. 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.
Mr. Douglas Doran, acting pro se 1, appeals the district court’s sua sponte
dismissal of his § 1983 in forma pauperis complaint because it was frivolous. 28
U.S.C. § 1915(e)(2)(B)(i). Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
Mr. Doran filed suit under 42 U.S.C. § 1983 against Dr. Paul Robinson,
President of Sandia National Laboratories (Sandia). 2 He alleges Dr. Robinson,
acting under color of state law, violated his constitutional rights by designing
nuclear weapons at Sandia, which he terms a “crime against peace.” (ROA, Vol.
I, Doc. 1.) In a second count, Mr. Doran characterizes the work of Sandia as a
hostile act leading to the “crime of indiscriminate attack.” 3 (Id.) He claims
Sandia caused him unnecessary distress, worry, and concern for his family and
their good health. For relief, he requested personal and publicized assurances
from Dr. Robinson that nuclear weapon design at Sandia would cease. The
district court dismissed his complaint as frivolous, and later denied a request for
1
Since he acts pro se, we construe Mr. Doran’s pleadings liberally.
Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
2
Sandia National Laboratories is a federally owned facility managed and
operated by private contractor Sandia Corporation. Dr. Robinson, at the time of
suit, was president of Sandia Corporation and director of Sandia National
Laboratories.
3
In support of his claims, Mr. Doran variously cites to the Charter of the
International Military Tribunal at Nuremberg (Aug. 8, 1945); U.S. Const., art. VI,
cl. 2; Nuclear Non-Proliferation Treaty, art. VI (March 5, 1970); and Additional
Protocol 1 to the 1949 Geneva Convention (Dec. 7, 1979).
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reconsideration. 4 From these orders Mr. Doran appeals.
A district court is required to dismiss an in forma pauperis complaint at any
time if the court determines the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).
Traditionally, we have reviewed the dismissal of a frivolous complaint for abuse
of discretion; we discern no abuse. See Schlicher v. Thomas, 111 F.3d 777, 779
(10th Cir. 1997). 5 “[A] district court may dismiss an in forma pauperis action as
frivolous if the claim [is] based on an indisputably meritless legal theory or if it is
founded on clearly baseless factual contentions.” Id. (quotation marks and
citation omitted) (alteration in original). Frivolous claims include those
4
After the district court dismissed his complaint, Mr. Doran filed a pleading
the court correctly construed as a motion for an extension of time in which to file
either a motion to reconsider or a motion to amend the complaint. In an Order
Denying Request for Reconsideration, the district court denied the motion because
there were no grounds to reconsider its ruling, and amendment of the complaint
would have been futile. We review motions to reconsider and to amend a
complaint for abuse of discretion. Thompson v. City of Lawrence, Kan., 58 F.3d
1511, 1514-15 (10th Cir. 1995) (motion to reconsider); Calderon v. Kan. Dep’t of
Soc. & Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999) (motion to amend
complaint). The district court did not abuse its discretion in denying Mr. Doran’s
motion.
5
But see Wardell v. Dep’t of Corr., No. 03-1039, 2003 WL 21640973 (10th
Cir. July 14, 2003) (unpublished decision) (applying abuse of discretion standard
but suggesting 1996 amendments to 28 U.S.C. § 1915 may require de novo review
of § 1915(e)(2)(B)(i) dismissals); Basham v. Uphoff, No. 98-8013, 1998 WL
847689, at *4 n.2 (10th Cir. Dec. 8, 1998) (unpublished decision) (applying abuse
of discretion standard but questioning its continued application and suggesting de
novo review might apply in light of 1996 amendment to 28 U.S.C. § 1915, which
removed discretion of district court to dismiss frivolous complaints and replaced
it with requirement to do so). In this case, under either a de novo or abuse of
discretion standard, we reach the same result.
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“describing fantastic or delusional scenarios, claims with which federal district
judges are all too familiar.” Denton v. Hernandez, 504 U.S. 25, 32 (1992)
(quotation marks and citation omitted).
Mr. Doran alleges Dr. Robinson was acting under color of state law, and
yet identifies no state law involved in Dr. Robinson’s activities. Even liberally
construed as a complaint against a federal official in his official capacity, Mr.
Doran cites to no waiver of sovereign immunity that would enable the action. See
Pleasant v. Lovell, 876 F.2d 787, 793 (10th Cir. 1989). Furthermore, Mr. Doran
fails to allege facts establishing Dr. Robinson personally caused a constitutional
violation. “Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d
1416, 1423 (10th Cir. 1997). If his claim is that Dr. Robinson supervised others
who committed the violation(s), he has failed to allege facts establishing an
“affirmative link exists between the constitutional deprivation and either the
supervisor’s personal participation or his failure to supervise.” Grimsley v.
MacKay, 93 F.3d 676, 679 (10th Cir. 1996) (quotation marks and citation
omitted).
Apart from the paucity of facts alleged in his complaint, Mr. Doran fails to
state a cognizable legal theory justifying relief. The only constitutional provision
to which he cites as a basis for relief is Article VI, Clause 2, of the United States
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Constitution, which provides that the Constitution, laws passed in furtherance
thereof, and treaties lawfully made “shall be the supreme Law of the Land . . . .”
This allusion begs the question of what explicit constitutional violation Dr.
Robinson is alleged to have committed against Mr. Doran.
After a careful review of the record, we adopt the reasoning in the district
court’s orders, AFFIRM the decisions of the district court, and dismiss the appeal
as frivolous.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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