McCary v. Peters, et al

Filing 920101027

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

O c t o b e r 27, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court

S T E V E N DOUGLAS McCARY, Plaintiff-Appellant, v. K A R E N PETERS, Deputy D.A., B o u l d e r , Colorado; RICHARD IRVIN, A t t o r n e y at Law; GREGG F R I E D M A N , Attorney at Law; T E R R Y McCARY, ex-wife, alleged v i c t i m; ANGELITA VASQUEZ, p r o s e c u t i o n witness; MARIENA H A R R I S , prosecution witness, Defendants-Appellees. N o . 10-1230 ( D . C . No. 1:10-CV-00284-ZLW) ( D . Colo.)

O R D E R AND JUDGMENT * B e f o r e TACHA, ANDERSON, and KELLY, Circuit Judges.

A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y that oral argument would not materially assist the determination of t h i s appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t h e r e f o r e ordered submitted without oral argument. This order and judgment is n o t binding precedent, except under the doctrines of law of the case, res judicata, a n d collateral estoppel. It may be cited, however, for its persuasive value c o n s i s t e n t with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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S t e v e n Douglas McCary, a Colorado inmate proceeding pro se, appeals the d i s t r i c t court's order dismissing his 42 U.S.C. § 1983 civil-rights complaint s e e k i n g damages. The district court dismissed the in forma pauperis (IFP) c o mp l a i n t and the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (iii). We t a k e jurisdiction under 28 U.S.C. § 1291. We conclude that this appeal is f r i v o l o u s and therefore will be dismissed. We also deny Mr. McCary's request to p r o c e e d IFP on appeal. Background Claiming he was unfairly convicted of crimes in a Colorado state court, M r . McCary filed the underlying lawsuit against the prosecuting attorney, his two d e f e n s e counsel, and three witnesses who testified against him. At the time he f i l e d the complaint, his federal habeas petition was pending. 1 The district court a p p l i e d the rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), that a d a ma g e s claim under § 1983 will be dismissed unless the underlying conviction h a s been reversed, expunged, declared invalid, or called into question by the i s s u a n c e of a federal writ. R. at 26-27. In addition, the court held that the claims a g a i n s t defendants Peters, Vasquez, McCary, and Harris were barred by p r o s e c u t o r i a l or witness immunity. Next, the court noted that defense attorneys

T h i s court subsequently denied a certificate of appealability in the habeas a c t i o n because Mr. McCary had not exhausted his available state court remedies i n the criminal case. McCary v. Zavaras, Nos. 10-1272 & 10-1273, 2010 WL 4 0 1 6 7 7 4 , at *3 (10th Cir. Oct. 14, 2010) (unpublished).
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a r e not state actors so are not subject to suit under § 1983. Finally, the court held t h a t Mr. McCary's conspiracy claims were insufficient because they were not s u p p o r t e d by any specific facts to demonstrate the existence of an agreement and c o n c e r t e d action. Disposition "[W]e review de novo a district court's sua sponte dismissal pursuant to 2 8 U.S.C. § 1915(e)(2) in an in forma pauperis proceeding." Vasquez Arroyo v. S t a r k s , 589 F.3d 1091, 1094 (10th Cir. 2009). Because Mr. McCary is proceeding p r o se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 ( 2 0 0 7 ) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007). H a v i n g reviewed Mr. McCary's brief and the record, and applying the s t a n d a r d of review set out above, we affirm the district court's order dismissing M r . McCary's complaint and the action as legally frivolous for the same reasons s t a t e d by that court. To the extent he argues that the district court erred in r e f u s i n g to appoint counsel for him, we find no abuse of discretion. See Steffey v. O r m a n , 461 F.3d 1218, 1223 (10th Cir. 2006). Moreover, we determine that this a p p e a l is frivolous, pursuant to § 1915(e)(2)(B)(i), because Mr. McCary "has f a i l e d to present any legal theory which could conceivably refute the district c o u r t ' s disposition." Davis v. Kan. Dep't of Corr., 507 F.3d 1246, 1249 ( 1 0 t h Cir. 2007).
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Prior Occasions Having found this appeal to be frivolous and subject to dismissal under the p r o v i s i o n s of § 1915(e)(2)(B)(i), Mr. McCary is advised that the dismissal of this a p p e a l counts as a second "prior occasion" or "strike," under § 1915(g). See D a v i s , 507 F.3d at 1249 (holding that dismissals by district court and court of a p p e a l s in the same case each count as a strike). Mr. McCary "is reminded that if h e accrues three strikes, he will no longer be able to proceed in forma pauperis in a n y civil action filed in a federal court unless he is in imminent danger of physical i n j u r y . " Thompson v. Gibson, 289 F.3d 1218, 1223 (10th Cir. 2002) (citing § 1915(g)). Conclusion Mr. McCary's request to proceed IFP on appeal is DENIED, and he is o r d e r e d to immediately remit the unpaid balance of the filing fee. All pending mo t i o n s are DENIED. This appeal is DISMISSED.

Entered for the Court

D e a n e l l R. Tacha C i r c u i t Judge

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