Anaeme vs. Peterson

Filing 920061107

Opinion

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United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS FO R TH E TENTH CIRCUIT F I L E D November 7, 2006 Elisabeth A. Shumaker Clerk of Court CH IBU EZE C. AN AEM E, Plaintiff-Appellant, v. RUSSELL PETERSON, Officer, individually and in his capacity as the Chief of Police, Truth or Consequences, New M exico Police Department; K. STOCKM AN, Officer, individually and in his capacity as an officer of the Truth or Consequences, New M exico Police Department,; B.C.W . INC., d/b/a O ut W est A uto Corral of Albuquerque, New M exico, d/b/a Farr Better Car Rental of Albuquerque, New M exico, d/b/a Rent a W reck of Albuquerque, New M exico; GLEN BANEK; ROBERT V ELA SQ U EZ; JESU S B . LED ESM A, individually and in their capacity as employees of B.C.W . Inc. d/b/a R ent a W reck of Albuquerque, New M exico, Farr Better Car Rental of Albuquerque, New M exico, Out West Auto Corral of Albuquerque, New M exico subsidiaries of B.C.W . Inc.; B EST W ESTER N H O T SPR IN GS INN , TRUTH O R CO NSEQUEN CES (T O R C ), N EW M EX IC O; JO SHUA FRANKEL, individually and in his capacity as General M anager/employee of Best W estern Hot Springs Inn, Truth or Consequences, New M exico; TRUTH OR CONSEQUENCES (T OR C) No. 05-2360 (D.C. No. CIV-04790-JP/DJS) (D . N.M .) NEW M EXICO POLICE DEPARTM ENT, Defendants-Appellees. OR D ER AND JUDGM ENT * Before O'BRIEN, PO RFILIO, and ANDERSON, Circuit Judges. Proceeding pro se, plaintiff Chibueze C. Anaeme appeals the district court's dismissal of his civil rights complaint, brought under 42 U.S.C. 1983 and 1985. He also seeks to proceed in form a pauperis (IFP) on appeal. W e deny the motion to proceed IFP, and dismiss the appeal. In his complaint, M r. Anaeme recites that he rented a car from defendant B.C.W . Inc., d/b/a Rent a W reck of Albuquerque, New M exico ("BCW "). 1 The rental car suffered a mechanical breakdown. After the breakdown, M r. Anaeme * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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. 1 He also names subsidiaries of BCW , including Farr Better Car Rental of Albuquerque and Out W est Auto Corral of Albuquerque. -2- checked into the defendant Best W estern Hot Springs Inn in Truth or Consequences, New M exico ("Best W estern"). The next morning, M r. Anaeme spoke to defendant Joshua Frankel, general manager of the Best W estern. M r. Anaeme claims he assured M r. Frankel that the charges for his room would be paid in full upon checkout, either by himself or by BCW . BCW allegedly also provided assurance that his room charges would be paid. M r. Anaeme alleges that M r. Frankel thereafter telephoned the Truth or Consequences police department (ToCPD) and lodged a complaint against M r. Anaeme. Defendant Russell Peterson, a ToCPD officer, responded to the scene, entered the lobby of the hotel, and ordered M r. Anaeme to pay the room charge for an additional night (apparently because he had stayed past check-out time). M r. Anaeme paid without hesitation but then told Officer Peterson that he wanted to file a formal complaint with the ToCPD against all involved parties immediately. M r. Anaeme states that Officer Peterson responded rudely and abruptly, stating that he could take M r. A naeme to the police station to file the complaint. Officer Peterson, however, did not transport M r. A naeme to the police station. Four months later, M r. Anaeme traveled to the ToCPD station, in an attempt to file a formal complaint arising out of this incident against Officer Peterson, M r. Frankel, BCW , and M r. Velasquez, and M r. Ledesma, employees of -3- BC W . M r. Anaeme asserts that defendant Officer Stockman of the ToCPD refused to process his complaint and rudely and sarcastically ordered him to leave the police station. Based on the foregoing conduct, M r. Anaeme's complaint charges that the defendants "harassed, intimidated, and assaulted" him, and that they deprived him of his liberty without due process of law. R., doc. 1, at 7-8. His complaint contains claims based on a number of other legal theories, including denial of equal protection, failure to render aid or to intercede on his behalf, conspiracy, interference with his right of association, fabrication of evidence, failure to train and supervise officers and employees, and selective enforcement of the laws. Defendants Best W estern, Frankel, BCW, Banek, Velasquez, and Ledesma filed motions to dismiss. M r. Anaeme never responded to these motions. The district court granted the motions to dismiss, both because M r. Anaeme was deemed to have consented to them by failing to respond, and because it found that his complaint failed to state a valid claim against these defendants. M r. Anaeme filed appeals from each of these dismissal orders. The appeals were dismissed for lack of jurisdiction because there was no final order. Defendants ToCPD, Peterson, and Stockman thereafter filed an answ er to the complaint, followed by a motion to dismiss. Again, M r. Anaeme did not respond to the motion. The district court granted the motion based on the failure to respond, and on the merits, finding that the complaint failed to state a claim -4- against these defendants. M r. Anaeme appealed, 2 and sought to proceed IFP on appeal. The district court, determining that he had failed to advance any reasoned, non-frivolous arguments, denied IFP. On appeal, M r. Anaeme raises three issues: (1) The district court erred in dismissing his complaint, both for failure to state a claim and because he failed to respond to the motion to dismiss. (2) The district court failed to determine whether some of the named defendants were proper parties in the case. (3) The district court failed to grant his discovery motions, including his motions to compel. Upon review, we determine that M r. Anaeme's appeal is frivolous. W e therefore dismiss this appeal, see 28 U.S.C. 1915(e)(2)(B)(i), and deny his motion to proceed in forma pauperis. Entered for the Court Terrence L. O'Brien Circuit Judge 2 The notice of appeal is not a model of clarity. W hile it expressly purports only to appeal only from the order dismissing defendants ToCPD , Peterson, and Stockman, it mentions the other defendants and the orders dismissing them as well. Construed broadly, it appears to demonstrate an intent to appeal from all of the dismissal orders. -5-

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