Tuller v. Hickinlooper et al

Filing 9

ORDER of Dismissal. ORDERED that the clerk of the Court add Steven Michael Tuller and Steven M. Tuller, aliases for Steven Tuller, to the docketing records for this case. FURTHER ORDERED that Plaintiff, Steven Tuller, is denied leave to proceed p ursuant to 28 U.S.C. § 1915 3 . FURTHER ORDERED that the complaint and the action are dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. FURTHER ORDERED that any pending motions 5 , 6 , 8 , are denied as moot, by Judge Lewis T. Babcock on 10/24/12.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02404-BNB
STEVEN TULLER, also known as
STEVEN MICHAEL TULLER, also known as
STEVEN M. TULLER,
Plaintiff,
v.
JOHN HICKINLOOPER [sic],
TOM CLEMENTS,
REGGIE BICHA,
JANE DOE, and
TRAVIS TRANI,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Steven Tuller, is a prisoner in the custody of the Colorado Department of
Corrections who currently is incarcerated at the Colorado State Penitentiary in Cañon
City, Colorado. The caption of this order has been corrected to include his aliases. Mr.
Tuller has submitted pro se a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 3) and a Prisoner Complaint (ECF No. 1).
On September 13, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Tuller to
show cause in writing within thirty days why he should not be denied leave to proceed
pursuant to § 1915. On October 18, 2012, Mr. Tuller filed his response (ECF No. 7) to
the order to show cause. The Court must construe liberally Mr. Tuller's filings because
he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court

should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the
reasons stated below, the Court will deny leave to proceed pursuant to § 1915, and
dismiss the action.
Mr. Tuller seeks leave to proceed without prepayment of fees or security therefor
pursuant to 28 U.S.C. § 1915. In relevant part, this statute provides:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious physical
injury.
28 U.S.C. § 1915(g). For the purposes of this analysis, the Court may consider actions
or appeals dismissed prior to the enactment of 28 U.S.C. § 1915(g). Green v.
Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
A review of this Court’s records reveals that, while he was a prisoner, Mr. Tuller
has, on three or more prior occasions, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted. See Tuller v. Neal, No. 95-cv-02396DBS (D. Colo. Jan. 4, 1996) (dismissed as legally frivolous), aff’d, No. 96-1049 (10th Cir.
Dec. 19, 1996) (appeal dismissed as legally frivolous), cert. denied, 520 U.S. 1232
(1997); see also Tuller v. Neal, No. 96-cv-00678-DBS (D. Colo. Apr. 5, 1996) (dismissed
as legally frivolous), appeal dismissed, No. 96-1163 (10th Cir. Jan. 16, 1997); and Tuller
v. Lawrence, No. 02-cv-02414-ZLW (D. Colo. Feb. 25, 2003) (dismissed as legally
frivolous).

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In the complaint, Mr. Tuller contends he is in imminent danger of serious physical
injury. ECF No. 3 at 2. He bases these allegations on the assertion that he requires an
evaluation by a doctor because he has a life sentence, id., and is a sex offender who has
not been sent to the Colorado Mental Health Institute in Pueblo, Colorado, to participate
in the phase-one and -two sex offender treatment program (ECF No. 1 at 3). These
allegations do not rise to the level of imminent danger of serious physical injury.
In the response to the show-cause order, Mr. Tuller elaborates upon these
allegations. He contends that the Pueblo County District Court has denied his request
for copies of his sex-offender evaluation, and asks that this Court either provide him with
copies or order the Pueblo County court to do so.
The Court lacks subject matter jurisdiction over Mr. Tuller’s request. The
Rooker-Feldman doctrine provides that federal courts, other than the United States
Supreme Court, lack jurisdiction to adjudicate claims seeking review of state court
judgments. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). The Rooker-Feldman
doctrine precludes "cases brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments." Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see also Johnson v. De Grandy,
512 U.S. 997, 1005-06 (1994) (stating that the losing party in a state court proceeding is
generally "barred from seeking what in substance would be appellate review of the state
court judgment in a United States district court, based on the losing party's claim that the
state judgment itself violates the loser's federal rights.").

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The Rooker-Feldman doctrine bars not only cases seeking direct review of state
court judgments; it also bars cases that are "inextricably intertwined" with a prior state
court judgment. See Feldman, 460 U.S. at 482 n.16. "To determine whether a federal
plaintiff's claim is inextricably intertwined with a state court judgment, [the Court] must
pay close attention to the relief the plaintiff seeks." Crutchfield v. Countrywide Home
Loans, 389 F.3d 1144, 1147-48 (10th Cir. 2004). "Where a plaintiff seeks a remedy that
would disrupt or undo a state court judgment, the federal claim is inextricably intertwined
with the state court judgment." Id. at 1148; see also Mann v. Boatright, 477 F.3d 1140
(10th Cir. 2007) (claim is "inextricably intertwined" with the state court judgment where
success in federal district court would require court "to review and reject" that judgment);
Pittsburgh County Rural Water Dist. No. 7 v. City of Maltster, 358 F.3d 694, 707 (10th
Cir. 2004) (federal claim is inextricably intertwined with state court judgment if the state
court judgment "caused, actually and proximately, the injury for which [the party] seeks
redress").
In addition, Mr. Tuller has failed to show cause as directed, will be denied leave to
proceed pursuant to 28 U.S.C. § 1915(g), and the action will be dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962).
If Mr. Tuller files a notice of appeal he must also pay the full $455.00 appellate filing fee
or file a motion to proceed in forma pauperis in the United States Court of Appeals for the
Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.

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Accordingly, it is
ORDERED that the clerk of the Court add Steven Michael Tuller and Steven M.
Tuller, aliases for Steven Tuller, to the docketing records for this case. It is
FURTHER ORDERED that Plaintiff, Steven Tuller, is denied leave to proceed
pursuant to 28 U.S.C. § 1915 because: (1) he has, on three or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted; and (2) he fails to establish that he is
under imminent danger of serious physical injury. It is

FURTHER ORDERED that the complaint and the action are dismissed without
prejudice. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 24th day of

October

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States Magistrate Judge

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