Raile v. Ortiz , 237 F. App'x 331 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 8, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RO NN IE LEE RAILE,
Plaintiff-Appellant,
v. No. 06-1383
(D.C. No. 06-cv-00559-ZLW )
JOE ORTIZ (Executive Director (D . Colo.)
Colorado Dept. of Corrections), and
CHRIS M ACHETTE (Time
Computation Supervisor/CDOC),
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
Ronnie Lee Raile appeals from a district court order that construed his
prisoner civil-rights complaint as repetitive of a prior lawsuit and dismissed it.
W e take jurisdiction under 28 U.S.C. § 1291 and dismiss the appeal.
*
After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
B ACKGROUND
M r. Raile is a state prisoner in the custody of the Colorado Department of
Corrections (CDOC), serving time for burglary, trespassing, and violating a
restraining order. In January 2005, he filed a pro se complaint under 42 U.S.C.
§ 1983 against Joe Ortiz, CDOC’s executive director, and Chris M achette, a
CDOC time-computation supervisor. M r. Raile alleged that his “Time
Computation Report” (TCR) lists a charge of domestic violence that was not
included on his state court mittimus. Raile v. Ortiz, No. 05-cv-149-ZLW
(D. Colo. Jan. 27, 2005) (Compl. at 3). He further alleged that Ortiz and
M achette “failed to correct the [TCR]” even after receiving a M ay 19, 2004 order
from the state district court, indicating that his “mittimus reflected a Violation of
Restraining Order . . . not a charge of Domestic Violence.” Id. at 3. According
to M r. Raile, the incorrect charge hindered his “progression through [CDOC]
(i.e.) - half-way house, community corrections and reflect[ed] in a negative way
any presentation to the parole board,” id. at 4. M r. Raile sought damages and to
have Ortiz and M achette charged with contempt for not complying with the
mittimus.
In M arch 2005, the district court dismissed the complaint as frivolous,
ruling that (1) his claims did “not implicate a federal constitutional right”; (2) he
alleged only “theoretical future harm,” id. (D. Colo. M ar. 30, 2005) (Dismissal
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Order at 3); and (3) to the extent he sought criminal charges against Ortiz and
M achette, relief was unavailable. M r. Raile did not appeal.
In M arch 2006, proceeding in forma pauperis (IFP), M r. Raile filed another
pro se § 1983 complaint against O rtiz and M achette, No. 06-cv-559-ZLW , again
alleging that CDOC refuses to remove from his TCR the reference to a domestic-
violence charge and that the charge precludes him from being considered for
“[c]ommunity [c]orrections programs” or parole. ROA, Doc. 3, at 9. He again
cites the state court mittimus and the M ay 19, 2004 order, which this time
accompanies the complaint. The order states that while M r. Raile was not
“charged with or convicted of domestic violence in this matter,” the CDOC time-
computation office has “informed the court that the charge of Violation of
Restraining order . . . falls under the category of domestic violence within their
office.” Id. at 26.
A magistrate judge ordered M r. Raile to show cause why the complaint
should not be dismissed because it was repetitive of the earlier lawsuit. He
responded that the earlier lawsuit “should not have been dismissed as being
frivolous because [he] should have been, but was not, allowed to amend his
Complaint to refect [sic] a recognizable Federal Constitutional Claim,” id., Doc. 8
at 1 (emphasis omitted), and that the instant complaint “clearly states how my
constitution[al] - civil rights are being violated, which it did not in the first
complaint,” id. at 5. In July 2006, a district judge ordered the complaint
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dismissed as frivolous and malicious, ruling that if M r. Raile believed the earlier
complaint was wrongly dismissed he should have appealed, and that “the claims
in the instant action are repetitive of the claims M r. Raile raised in [the prior
action].” Id., Doc. 10 at 3. M r. Raile timely filed a notice of appeal 1 and moved
for IFP status on appeal. The district court denied the motion, and M r. Raile now
seeks IFP status from this court.
D ISCUSSION
Under 28 U.S.C. § 1915(e)(2)(B)(i), an IFP case must be dismissed if, at
any time, the court determines that the action is frivolous or malicious. W e
review for an abuse of discretion unless the district court’s determination turned
on an issue of law, in which case we review de novo. Fogle v. Pierson, 435 F.3d
1252, 1259 (10th Cir.), cert. denied, 127 S. Ct. 675 (2006). Employing either
standard of review, and construing the complaint liberally, see Freeman v.
Watkins, 479 F.3d 1257, 1259 (10th Cir. 2007), we conclude that the district court
properly dismissed this case.
“Repetitious litigation of virtually identical causes of action may be
dismissed under § 1915 as frivolous or malicious.” M cWilliams v. State of Colo.,
1
W hile M r. Raile did not file his notice of appeal until forty-seven days after
the district court dismissed his complaint on July 14, 2006, the notice is timely
because the dismissal order does not qualify as a separate judgment which would
trigger the thirty-day appeal period. See Berrey v. Asarco Inc., 439 F.3d 636, 642
n.4 (10th Cir. 2006) (suggesting that an order containing the court’s “detailed
legal analysis” is not a judgment contemplated by Fed. R. Civ. P. 58).
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121 F.3d 573, 574 (10th Cir. 1997) (quotation and alteration omitted).
M r. Raile’s M arch 2006 complaint is premised on precisely the same conduct by
CDOC that formed the basis of his January 2005 complaint. W hile the M arch
2006 complaint attempts with more precision than its predecessor to identify the
constitutional violation allegedly present, we do not hesitate to declare both
complaints virtually identical. M r. Raile even alleged as much in his M arch 2006
complaint, when he identified the nature of the present case as CDOC’s “non-
compliance” with the state court mittimus, ROA, Doc. 3 at 8, and described the
prior lawsuit as having raised the claim that “C .D.O.C. is not compl[y]ing with
the court[ ] mittimus,” id. at 13.
Accordingly, we DISM ISS this appeal for substantially the same reasons
given by the district court, and we DEN Y M r. Raile’s motion for appellate IFP
status, as he has not offered “a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal,” M cIntosh v. U.S. Parole Comm’n,
115 F.3d 809, 812 (10th Cir. 1997). Accordingly, immediate payment of the
unpaid balance of the appellate filing fee is due.
Finally, our dismissal of this appeal counts as at least M r. Raile’s third
strike under 28 U.S.C. § 1915(g). 2 He may not proceed IFP as a prisoner in any
2
The strikes arise from the following dismissals: (1) our dismissal of the
instant appeal; (2) the district court’s dismissal of the M arch 2006 complaint; and
(3) the district court’s dismissal of the January 2005 complaint. See Jennings v.
Natrona County D etention Ctr. M ed. Facility, 175 F.3d 775, 780-81 (10th Cir.
(continued...)
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further civil action or appeal filed in federal court unless he is in “imminent
danger of serious physical injury.” Id.Entered for the Court
Stephen H. Anderson
Circuit Judge
2
(...continued)
1999) (reciting the dismissal-strike rules). M r. Raile would also have strikes from
our previous dismissal as frivolous of his appeal in Raile v. Ortiz, No. 05-1345,
2006 W L 991102 (10th Cir. Apr. 17, 2006) (involving Raile’s detention in a
county jail), and the underlying dismissal of that action as frivolous.
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