Smith v. Barker ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 16, 2020
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
RODNEY A. SMITH,
Plaintiff - Appellant,
v. No. 19-1469
(D.C. No. 1:19-CV-02340-LTB-GPG)
SUSAN BARKER; JERRY ROARK; (D. Colo.)
NANETTE THOMAS; SHAWNA
GONZALES; DIANNA MILENSKI;
STEVEN SALAZAR; MARSHALL
GRIFFITH; PPMU MR. COOK;
SANDRA BROWN; ANTHONY A.
DECESARO,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
*
This order and judgment is not binding precedent except under the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.
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.
Rodney A. Smith appeals from an order of the United States District Court
for the District of Colorado. The district court dismissed Smith’s civil rights
complaint as legally frivolous pursuant to the provisions of 28 U.S.C. § 1915(e).
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.
Smith filed a 42 U.S.C. §§ 1981 and 1983 civil rights complaint in the
District of Colorado, which named as defendants various officials and employees
of the Colorado Department of Corrections. The complaint alleged the defendants
(1) violated his constitutional right of access to the court by denying him copies
of certain Louisiana statutes he wished to attach to state-court pleadings; and
(2) interfered with his “contractual right” to receive copies of those same statutes.
In response, the district court filed an “Order Directing Plaintiff to File Amended
Complaint.” The district court’s order identified, inter alia, the following
deficiency in Smith’s complaint: the failure of the complaint to allege specific
facts that demonstrated an actual injury to his ability to pursue a nonfrivolous
legal claim. See Lewis v. Casey, 518 U.S. 343, 349-55 (1996). After Smith filed
an amended complaint, the matter was referred to a magistrate judge for initial
screening and preparation of a report and recommendation. 28 U.S.C.
§ 636(b)(1)(B). The magistrate judge recommended that Smith’s complaint be
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dismissed as legally frivolous pursuant to the provisions of § 1915(e)(2)(B)(i). In
that regard, the magistrate judge noted as follows with regard to Smith’s access-
to-the-courts claim:
Despite the specific instructions provided to Mr. Smith, he
fails to allege facts that demonstrate he suffered any actual injury as
a result of being denied copies of the Louisiana statutes he sought to
include as exhibits with his opening brief. More specifically, Mr.
Smith fails to describe the underlying cause of action that allegedly
was lost in order to demonstrate the claim is not frivolous. His
vague and conclusory assertions that his current Colorado sentence
was enhanced by prior State of Louisiana convictions and that he
wanted to submit copies of the Louisiana statutes with his opening
brief are not sufficient to demonstrate actual injury. Even if the
Court assumes Mr. Smith needed copies of the statutes to formulate a
claim in his opening brief, the access to the courts claim still lacks
merit because he does not allege facts describing a nonfrivolous
claim. See Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)
(prisoner’s allegations that he was unable to research and prepare
initial pleadings were too conclusory to present a plausible claim for
denial of access to the courts). As a result, the Court finds that the
access to the courts claim is legally frivolous.
Report & Recommendation at 5 (citation omitted). As to the § 1981 claim, the
magistrate judge recognized Smith failed to identify any support for the
conclusory assertion that he had a contractual right to obtain copies of the
Louisiana statutes. Upon de novo review, the district court adopted the
magistrate judge’s report and recommendation and dismissed Smith’s complaint
with prejudice.
This court reviews de novo the district court dismissal of Smith’s complaint
as legally frivolous. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).
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Upon de novo review, we affirm the district court for substantially those reasons
set out in the magistrate judge’s report and recommendation, dated June 7, 2016,
and the district court’s order, dated November 4, 2019. In addition, this court
notes that Smith’s reliance on Petrick v. Maynard, 11 F.3d 991 (10th Cir. 1993),
is misplaced. In Petrick, the prisoner complaint at issue contained enough
information to discern the possibility of a nonfrivolous attack on out-of-state
sentences used to enhance the prisoner’s Oklahoma sentence. Smith’s amended
complaint, on the other hand, contains absolutely no information about the nature,
or potential timeliness, of the anticipated collateral attack on his Louisiana
convictions. There is nothing in Petrick indicating that the mere assertion a
prisoner wants to collaterally attack an out-of-state sentence used to enhance a
current sentence is sufficient, standing alone, to satisfy the requirements of Lewis,
518 U.S. at 349-55. Accordingly, the order of the district court dismissing
Smith’s complaint as legally frivolous is hereby AFFIRMED. Furthermore,
because Smith has not shown “the existence of a reasoned, nonfrivolous argument
on the law and facts in support of the issues raised” in this appeal, we DENY his
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request to proceed in forma pauperis and order him to immediately remit the
entire unpaid balance of the appellate filing fee. Lister v. Dep’t of Treasury, 408
F.3d 1309, 1312 (10th Cir. 2005).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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