Robinson v. Polis ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 17, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
DAVID WAYNE ROBINSON ,
Plaintiff - Appellant,
v. No. 19-1379
(D.C. No. 1:18-CV-01453-LTB-GPG)
JARED POLIS, Governor, individual and (D. Colo.)
official capacity; MICHAEL HANCOCK,
Mayor, individual and official capacity;
PHIL WEISER, Attorney General,
individual and official capacity; FRAN
GOMEZ, Sheriff, individual and official
capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT
_________________________________
Before MATHESON, BALDOCK, and KELLY, Circuit Judges.
_________________________________

Jared Polis, Colorado’s current Governor, is substituted for Colorado’s
former Governor, John Hickenlooper.

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Pro se state prisoner David Wayne Robinson appeals from the district court’s
dismissal of his 42 U.S.C. § 1983 amended complaint as frivolous. We dismiss his
appeal as frivolous and deny him leave to proceed in forma pauperis (“ifp”) on
appeal. Further, because Mr. Robinson is subject to the three-strikes provision of the
Prison Litigation Reform Act (“PLRA”), we impose a strike under
28 U.S.C. § 1915(g).1
I. BACKGROUND
Mr. Robinson, a Colorado state prisoner, sued under § 1983 for alleged
violations of his civil rights when he was a pre-trial detainee at the Denver Detention
Facility (“DDF”). According to Mr. Robinson, because various state and local
officials collected a $30 fee when he was booked into the DDF, they infringed (1) his
due process rights, (2) the of separation of powers, and (3) his right to be free from
cruel and unusual punishment.
The magistrate judge found Mr. Robinson’s initial complaint was deficient and
directed him to file an amended complaint within 30 days. When he failed to do so,
the magistrate judge reviewed the original complaint under 28 U.S.C.
§ 1915(e)(2)(B)(i). He recommended dismissal with prejudice as legally frivolous
because Mr. Robinson failed to plead factual allegations to support his claims.
1
Because Mr. Robinson is proceeding pro se, we construe his filings liberally,
but we do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).
2
Shortly thereafter, Mr. Robinson filed a belated amended complaint,
explaining he had not received a copy of the magistrate judge’s order to file an
amended complaint until after the 30-day deadline expired. He asked the district
court to accept the untimely complaint for filing. Mr. Robinson did not raise any
substantive objections to the magistrate judge’s recommendation. He argued only
that the district court should accept his late-filed amended complaint, which the court
read to contain only a due process claim.
The district court was “unconvinced” by Mr. Robinson’s explanation as to why
he failed to file a timely amended complaint. R. at 84. But the court determined that
even if it “were to accept and consider the amended prisoner complaint . . . the action
would still be dismissed” because the complaint “fails to assert factual allegations to
support an arguable due process claim.” Id. at 85. It dismissed Mr. Robinson’s
amended complaint with prejudice as legally frivolous and denied leave to proceed
ifp on appeal.2
II. DISCUSSION
A. Mr. Robinson’s Claims
We review a district court’s order dismissing claims as frivolous under
§ 1915(e)(2)(B)(i) for an abuse of discretion. See Fogel v. Pierson, 435 F.3d 1252,
2
On appeal, Mr. Robinson maintains he was not at fault for failing to file a
timely amended complaint. Because the district court overlooked the untimely filing
and reviewed the amended complaint, timeliness “has no bearing on the ultimate
outcome of this case,” and we will not address it on appeal. Orr v. City of
Albuquerque, 417 F.3d 1144, 1154 (10th Cir. 2005).
3
1259 (10th Cir. 2006). If the district court based its frivolousness determination a
legal determination, we review that issue de novo. Id.
1. Separation of Powers and Cruel and Unusual Punishment
The magistrate judge determined the original complaint failed to assert factual
allegations to support the claims of separation of powers3 or cruel and unusual
punishment and recommended they be dismissed as legally frivolous. Although
Mr. Robinson alludes to these claims in his brief, he has waived appellate review
because he did not object to these findings and recommendations. “We have adopted
a firm waiver rule when a party fails to object to the findings and recommendations
of the magistrate.” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)
(brackets and internal quotation marks omitted). “The failure to timely object to a
magistrate’s recommendations waived appellate review of both factual and legal
questions.” Id. (internal quotation marks omitted). See also United States v. 2121 E.
30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (finding a general objection insufficient
to preserve appellate review of specific issues).
2. Due Process
The magistrate judge determined that “[i]n order to pursue a due process
claim, [Mr. Robinson] must file an amended prisoner complaint that adequately
alleges that the booking fee either deprived him of liberty or that he was entitled to a
3
We are unaware of any authority, and Robinson has cited none, that the
doctrine of separation of powers is a source of individual rights actionable under
§ 1983.
4
refund of the booking fee but the post-deprivation remedies are inadequate.” R. at 54
(internal quotation marks omitted). In its review of the amended complaint, the
district court found that Mr. Robinson “has not adequately asserted factual
allegations to support a procedural due process claim for the same reasons as stated
in [the magistrate judge’s recommendation]. As a result, the only claim asserted in
the amended prisoner complaint suffers from the same deficiencies as the initial
complaint.” Id. at 86.
On appeal, Mr. Robinson fails to address these deficiencies. Instead, he argues
that “[t]here should have been no such deprivation . . . to begin with.” Aplt. Opening
Br. at 7. This perfunctory argument is insufficient to invoke this court’s review. See
Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (“[P]erfunctory”
allegations of error that “fail to frame and develop an issue [are] [in]sufficient to
invoke appellate review.”).
B. Strike for Frivolousness
The three-strikes provision, § 1915(g), states that after a prisoner files three
civil “action[s] or appeal[s]” that are dismissed as “frivolous, malicious, or [for
failure] to state a claim,” he is no longer entitled to proceed ifp unless he is in
“imminent danger of serious physical injury.” A claim is frivolous “where it lacks an
arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Mr. Robinson has filed three civil rights cases, including this one, related to
his pre-trial detention at the DDF. All of them have produced § 1915(g) strikes, first
in Robinson v. Coffman, No. 18-cv-01455-GPG, 2019 WL 8223565 (D. Colo. Mar. 7,
5
2019), and then in Robinson v. Firman, No. 18-cv-01494 (D. Colo. Feb. 21, 2019),
which were both dismissed as frivolous. Strike three was assessed in this case when
the district court dismissed the amended complaint as frivolous. Robinson v.
Hickenlooper, No. 18-cv-01453 (D. Colo. Apr. 23, 2019).4
Mr. Robinson’s brief simply reiterates his amended complaint’s conclusory
averments—namely, that the booking fee violates due process and is part of a corrupt
scheme to collect money from pre-trial detainees. He does not address the district
court’s conclusion that his amended complaint was frivolous or attempt to
demonstrate that his claims do not meet the § 1915(e)(2)(B)(i) standard for frivolity.
We therefore assess the fourth strike here for a frivolous appeal.
III. CONCLUSION
We dismiss Mr. Robinson’s appeal as frivolous, deny his motion for ifp status,
and impose a strike under the PLRA. We remind Mr. Robinson of his obligation to
pay the filing fee in full.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
4
Although the district court’s strike here was Robinson’s third, we permitted
him to proceed ifp in this appeal.
6