Curiale v. Peterson , 147 F. App'x 30 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 22, 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
JOSEPH CURIALE,
Plaintiff-Appellant,
v. No. 05-4075
(D.C. No. 2:04-CV-1154-TC)
EDWIN PETERSON, Uintah County (Utah)
Attorney; DUSTIN CHESIRE, Uintah
County Deputy,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Joseph Curiale, proceeding pro se and in forma pauperis, filed a civil
complaint against various Utah state officials alleging violations under 42 U.S.C.
§ 1983, § 1985, and state laws. The district court dismissed the case without
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
prejudice pursuant to a prior district court order imposing filing restrictions on
Mr. Curiale. Construing his complaint liberally, see Haines v. Kerner, 404 U.S.
519, 520-21 (1972), we affirm.
On January 27, 2005, Chief Judge Dee Benson of the United States District
Court for the District of Utah ordered that Mr. Curiale be “enjoined from filing
any motions, including new actions, in District Court without leave of the Chief
Judge of the District.” Rec., doc. 8 at 1. The order further directed that “any
filing submitted without leave of the Chief Judge of the Court . . . may be
dismissed in the discretion of the presiding judge.” Id. Mr. Curiale was placed
on the district court’s “Restricted Filer List,” effective December 8, 2004.
Mr. Curiale did not seek leave of Chief Judge Benson to bring the current
law suit. In dismissing the case, the district court stated:
Because Mr. Curiale’s action in the above-captioned matter was filed after
December 8, 2004, and because there is no evidence in the record that
Chief Judge Benson provided leave to Mr. Curiale to file this matter, the
court, in its discretion, hereby dismisses the case without prejudice. If Mr.
Curiale wishes to re-file his action, he must obtain leave from Chief Judge
Benson first.
Id. at 1-2.
As best we can discern from Mr. Curiale’s handwritten brief, he is
appealing because he claims his suit is justified and he seeks review of the merits
of his case, as well as appointment of legal counsel and a preliminary injunction.
If Mr. Curiale’s intent on appeal is to dispute the district court’s filing
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restrictions, the appropriate channel for review was an appeal from the order itself
that established the restrictions. See Werner v. Utah, 32 F.3d 1446, 1448 (10th
Cir. 1994). In addition, under 28 U.S.C. § 1915(e)(2)(B), we may dismiss a case
if we determine the appeal is frivolous or fails to state a claim on which relief
may be granted. On review of the record on appeal, we have determined that Mr.
Curiale has made only conclusory and frivolous allegations which are unsupported
by facts and do not merit reversal of the district court’s decision in the instant
action.
Mr. Curiale alleges that defendants violated his civil rights by conspiring to
frame him, threatening to have him committed to a mental institution, seeking
discovery against him that besmirched his character, infringing on his freedom in
an unnamed manner in 1996 and 1997, and conspiring with his neighbors to
corrupt children and invade his privacy. Several of Mr. Curiale’s claims are
similar to those he recently raised unsuccessfully before this court. See Curiale v.
Walker, No. 05-4054, 2005 WL 1332350, at *1-2 (10th Cir. June 7, 2005)
(finding legally frivolous and conclusory Mr. Curiale’s claims that Governor of
Utah promoted and protected illegal corruption and prostitution of minors and that
neighbors violated privacy of his home and corrupted minors); Curiale v.
Hawkins, No. 04-4289, 2005 WL 1181145, at *1 (10th Cir. May 19, 2005)
(affirming as time-barred and insufficient Mr. Curiale’s claims that Uintah
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County Sheriff and County Deputy framed him for unnamed actions and had him
committed to mental institution in 1996 and 1997, and that County Deputy
threatened him by saying “Go in your house now or I’ll take you in.”). As in
Walker, Mr. Curiale has made only conclusory and frivolous allegations in this
case. He has presented no facts or legal arguments to demonstrate how
defendants conducted any conspiracies, what threats they made, if any, and the
nature of the alleged discovery violations. To the extent he seeks to raise claims
we have decided previously, he is barred from doing so.
We DISMISS Mr. Curiale’s case as frivolous under § 1915(e)(2)(B), and
DENY his request for appointment of counsel.
SUBMITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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