Mackey v. Webb , 83 F. App'x 309 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 17 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
WALDO MACKEY,
Plaintiff-Appellant,
v. No. 03-1400
(D. Colo.)
MIKE WEBB, Mail Room Sgt. C.S.P.; (D.Ct. No. 03-Z-886)
D.R. McKIBBIN, Step I Grievance
Officer; STEPHEN SCHUH, Step II
Grievance Officer; ANTHONY A.
DECESARO, Step III Grievance
Officer; LARRY REID, Warden; JOE
ORTIZ, Executive Director,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, PORFILIO, and BRORBY, Senior 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This order and judgment is not binding precedent except under the doctrines of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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant Waldo Mackey, a state prisoner appearing pro se, appeals an
order of the district court dismissing his civil rights action as frivolous under 28
U.S.C. § 1915(e)(2)(B). The district court determined his appeal was not taken in
good faith and thus denied Mr. Mackey’s motion to proceed on appeal in forma
pauperis pursuant to 28 U.S.C. § 1915. Mr. Mackey renews his § 1915 motion to
this court. Because we find his appeal frivolous, we dismiss Mr. Mackey’s appeal
and deny his motion to proceed in forma pauperis.
Mr. Mackey initiated a 42 U.S.C. § 1983 suit alleging prison officials
violated his First and Fourteenth Amendment rights by confiscating blank legal
forms mailed to him by a private individual. He also asserted the officials
violated his right to access the courts by preventing him from receiving “outside
help.”
Pursuant to § 1915(e)(2)(b), the district court dismissed Mr. Mackey’s
complaint as frivolous. The court accurately noted:
[T]he right of access to the courts extends only as far as protecting
an inmate’s ability to prepare initial pleadings in a civil rights action
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regarding his or her current confinement or in an application for a
writ of habeas corpus. See Wolff v. McDonnell, 418 U.S. 539, 576
(1974); Carper v. DeLand, 54 F.3d 613, 617 (10th Cir. 1995). A
prisoner claiming a denial of access to the courts must allege some
actual injury in his ability to pursue a nonfrivolous legal claim. See
Lewis v. Casey, 518 U.S. 343, 349-55 (1996); Penrod v. Zavaras, 94
F.3d 1399, 1403 (10th Cir. 1996) (per curiam).
The court then concluded “Mr. Mackey’s ... claims lack[] merit because he fails to
allege that he has suffered any actual injury in his ability to file an initial pleading
asserting a nonfrivolous claim in a civil rights action regarding his current
confinement or in a habeas corpus action.”
Mr. Mackey appeals the dismissal of his complaint. In addition to
renewing the allegations in the complaint, Mr. Mackey argues the district court
erred in construing both his claims as access to the courts claims. He further
complains the district court did not address the facts of his case and did not
construe his complaint liberally in light of his status as a pro se litigant.
Although Mr. Mackey generally argues his claims are not frivolous, he does not
address the determinative issue underlying the dismissal of his complaint:
whether he suffered an actual injury as a result of the alleged constitutional
violation.
We construe Mr. Mackey’s pro se appeal liberally, applying a less stringent
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standard than we would to a formal brief drafted by a lawyer. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). Although the Tenth Circuit has not determined
whether the dismissal of a complaint as frivolous should be reviewed for abuse of
discretion or de novo, see Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000),
we need not resolve the issue in this case because we reach the same conclusion
under either standard.
After reviewing Mr. Mackey’s appellate brief and the record on appeal, we
dismiss this appeal as frivolous for substantially the same reasons set forth in the
district court’s order. We conclude the district court properly construed the
allegations in Mr. Mackey’s complaint, and properly dismissed the complaint as
frivolous because it failed to identify an actual injury. Because Mr. Mackey’s
appellate brief similarly fails to address the issue of whether he suffered any
injury, it is likewise frivolous.
Conclusion
We deny Mr. Mackey’s motion to proceed in forma pauperis under
§ 1915(a)(1) and DISMISS this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
Thus, Mr. Mackey is responsible for the immediate payment of the unpaid balance
of the appellate filing fee. Our dismissal of this appeal as frivolous counts as a
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strike pursuant to 28 U.S.C. § 1915(g). The district court’s dismissal of his
complaint as frivolous also counts as a strike. See Jennings v. Natrona County
Det. Ctr. Med. Facility, 175 F.3d 775, 780-81 (10th Cir. 1999). Mr. Mackey has
an additional strike based on the dismissal of Case Number 97-CV-1101 in the
District of Colorado. Accordingly, Mr. Mackey has three strikes and will be
denied in forma pauperis status in any civil action filed in a federal court unless
he is in imminent danger of physical injury. 28 U.S.C. § 1915(g).
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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