Avery v. Wade ( 2022 )

Appellate Case: 22-4093 Document: 010110779910 Date Filed: 12/09/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 9, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
WARREN B. AVERY,
Plaintiff - Appellant,
v. No. 22-4093
(D.C. No. 4:22-CV-00063-PK)
LANCE WADE, (D. Utah)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
Appellant Warren B. Avery, proceeding pro se and in forma pauperis, appeals
the district court’s dismissal with prejudice of his 42 U.S.C. §§ 1983 and 1985
claims. We agree with the district court that Avery failed to state claims for which
relief could be granted, that his claims were frivolous, and that amendment would be
futile. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines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 to
honor Avery’s request for a decision on the briefs without oral argument. See
Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without
oral argument.
Appellate Case: 22-4093 Document: 010110779910 Date Filed: 12/09/2022 Page: 2
BACKGROUND
Avery alleges that a ring of drug-traffickers and defendant Lance Wade, the
owner of Avery’s former apartment building, regularly fly over his home in airplanes
and attack him with lasers. He tried notifying the FBI, the White House, and the
Department of Homeland Security about these alleged attacks, but to no avail. So he
turned to the courts for relief.
Avery first filed a complaint in Utah state district court seeking prosecution
against unnamed defendants for hate crimes and “narco-terrorism.” R. at 36. The
Utah state district court dismissed his claims without prejudice for failure to state a
claim. The court explained that Avery failed to name any defendant, and that the
remedy he sought—an FBI investigation—wasn’t a remedy the court could order.
Avery appealed his case to the Utah Supreme Court, which then transferred his
appeal to the Utah Court of Appeals. After his state-court appeal failed, Avery then
filed a complaint in the United States District Court for the District of Utah.
In federal court, Avery sued Wade and his “narco terrorist associates” under
42 U.S.C. §§ 1983 and 1985(3), alleging violations of his First and Fourteenth
Amendment rights. Id. at 4. He claimed that Wade and his associates attacked him at
his home from “extraterrestrial airplanes [seven] day[s] a week day and night.” Id. at
8. He alleged that they used lasers and “infrared cannons” to injure his head and
limbs. Id. at 11. And he referred to defendants’ alleged conduct as a “hate crime.” Id.
at 12. But in his pro se complaint form, Avery checked “No” to questions asking
whether the defendants acted under the authority or color of state law. Id. at 6–7. As
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a remedy, he sought an “FBI investigation” of the “terrorist felonies” of Wade and
his unnamed co-conspirators. Id. at 5.
Avery consented to a magistrate judge resolving his case, and the magistrate
judge granted Avery’s motion to proceed in forma pauperis. The magistrate judge
ruled that Avery failed to state a claim under § 1983 because he didn’t allege that
Wade was a state official or acted under color of state law; instead, the complaint
suggested “that Mr. Wade is a private citizen who owns apartment complexes in Salt
Lake County, Utah.” Id. at 43. The magistrate judge also ruled that Avery failed to
state a claim under § 1985 because he failed to plead the necessary elements. And the
magistrate judge ruled that Avery’s complaint was “frivolous” because he made
“fanciful and delusional” allegations. Id. at 44. Because Avery’s complaint was
frivolous, the magistrate judge found that amendment would be futile and dismissed
Avery’s complaint with prejudice. To support dismissal of Avery’s claims, the
magistrate judge cited both the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B),
and Federal Rule of Civil Procedure 12(b). Avery timely appealed.
STANDARD OF REVIEW
We review de novo dismissals for failure to state a claim under
§ 1915(e)(2)(B), applying the same standard of review as under Federal Rule of Civil
Procedure 12(b)(6). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (citations
omitted). And we review a district court’s dismissal of an in forma pauperis
complaint for frivolity under § 1915(e)(2)(B) for abuse of discretion. McWilliams v.
Colorado, 121 F.3d 573, 574–75 (10th Cir. 1997) (citing Schlicher v. Thomas,
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111 F.3d 777, 779 (10th Cir. 1997)). Because Avery proceeds pro se, we construe his
pleadings liberally without acting as his advocate. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
DISCUSSION
Liberally construing Avery’s appellate brief, we find that he challenges the
district court’s entire order on appeal.1 A district court must dismiss an in forma
pauperis case if the court determines that the case is “frivolous or malicious,” “fails
to state a claim on which relief may be granted,” or “seeks monetary relief against a
defendant who is immune from such relief.” § 1915(e)(2)(B)(i)–(iii). The district
court dismissed Avery’s complaint for two reasons: failure to state a claim and
frivolity. We consider each in turn.
The district court didn’t err in ruling that Avery failed to state claims for relief
under §§ 1983 and 1985(3). To state a claim under § 1983, Avery must show that
Wade and the other defendants acted under color of state law. Brokers’ Choice of
Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014) (citing Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)). Avery made no effort to
show that Wade or other defendants were state actors; instead, he expressly
disclaimed that Wade or any unnamed defendant acted under color of state law. The
district court didn’t err in dismissing Avery’s § 1983 claim.
1
Avery moves to amend his opening brief with documents elaborating on
“narco-terrorism.” Because of his pro se status, we grant Avery’s motion. But given
the outlandish nature of his allegations, his supplemental brief lends no additional
merit to his case.
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Avery’s § 1985(3) claim also fails. To state a claim under § 1985(3), Avery
must show (1) a conspiracy; (2) to interfere with his rights because of racial or class-
based animus; (3) an act in furtherance of the conspiracy; and (4) a resulting injury.
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 101–03 (1971)). Avery comes far short of alleging all the
elements of a § 1985(3) claim. Though he alleges a conspiracy, he doesn’t name any
defendants other than Lance Wade. And he doesn’t explain how Wade, along with
the unnamed defendants, conspired to interfere with his rights because of racial or
class-based animus. The district court correctly dismissed Avery’s § 1985 complaint
for failure to state a claim.
For similar reasons, the district court didn’t abuse its discretion in dismissing
Avery’s claims as frivolous and determining that any amendment would be futile. A
claim is frivolous—and therefore compels dismissal under § 1915(e)(2)(B)—if it
relies on an “indisputably meritless legal theory” or “[c]learly baseless factual
allegations . . . that are ‘fantastic’ or ‘delusional.’” Northington v. Jackson, 973 F.2d
1518, 1520 (10th Cir. 1992) (first quoting Neitzke v. Williams, 490 U.S. 319, 327
(1989); and then quoting Hall, 935 F.2d at 1109). Avery’s allegations about
narco-terrorists attacking him with space lasers are “[c]learly baseless,” “fantastic,”
and “delusional” and could never support a claim under § 1983 or § 1985(3), even if
he amended other deficiencies in his complaint. See id. The district court may
dismiss a pro se complaint with prejudice if “no amendment could cure [the]
defect[s].” Curley v. Perry, 246 F.3d 1278, 1282 (10th Cir. 2001). Avery raised
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“indisputably meritless legal theor[ies],” so the court didn’t abuse its discretion in
dismissing his claims with prejudice. See Northington, 973 F.2d at 1520 (quoting
Neitzke, 490 U.S. at 327).
CONCLUSION
Because Avery’s claims are frivolous and fail to state grounds for relief, we
affirm the judgment of the district court. 2
Entered for the Court
Gregory A. Phillips
Circuit Judge
2
We also deny Avery’s “Motion for Unnamed or Anonymous Appellee.”
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