Brown v. Doe et al

Filing 6

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Christine M. Arguello on 10/16/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02510-BNB
WESLEY BROWN, also known as
WESLEY R. “WOLF” BROWN, also known as
WOLF, also known as
WESLEY R. BROWN,
Plaintiff,
v.
J. DOE, Civilian or Denver County Deputy Sheriff in charge of Legal Research for
Denver County Jail Inmates,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Wesley Brown, also known by aliases listed in the caption to this order,
currently is incarcerated at the Denver County Jail. Mr. Brown initiated this action by
filing pro se a Prisoner Complaint (ECF No. 1) and a Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 4).
Because Mr. Brown has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915, the Court must dismiss the action if Mr. Brown’s claims
are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). A legally frivolous claim is one in which
the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts
facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319,
327-28 (1989). For the reasons stated below, the Court will dismiss the action as
legally frivolous.

The Court must construe the Prisoner Complaint liberally because Mr. Brown 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). If the Prisoner Complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
should not be an advocate for a pro se litigant. See id.
Mr. Brown contends that the e-law library for the Denver Jail system is
inadequate because the instruction book on how to use a computer to access the
system is insufficient. As a result, he maintains he was forced to handwrite three
pleadings pertinent to a removal, a plea agreement, and a motion for reconsideration of
sentence. He also argues that because he was denied an instruction book,
photocopies, and research assistance as allegedly set forth in the Inmate Handbook, he
has been denied effective access to the courts.
Mr. Brown’s access-to-the-courts claim is legally frivolous. “[T]he fundamental
constitutional right of access to the courts requires prison authorities to assist inmates in
the preparation and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons trained in the law.” Bounds
v. Smith, 430 U.S. 817, 828 (1977). However, a prisoner’s access-to-the-courts claim
lacks merit in the absence of an actual injury in the prisoner’s ability to pursue a
nonfrivolous legal claim. See Lewis v. Casey, 518 U.S. 343, 349-55 (1996); Penrod v.
Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (per curiam).
2

A prisoner “must demonstrate actual injury from interference with his access to
the court-that is, that the prisoner was frustrated or impeded in his efforts to pursue a
nonfrivolous legal claim concerning his conviction or conditions of confinement.” Gee v.
Pacheco, 627 F.3d 1178, 1991 (10th Cir. 2010) (citing Lewis, 518 U.S. at 351-55).
Furthermore, the right of access to the courts extends only as far as protecting an
inmate's ability to prepare initial pleadings in a civil rights action regarding his or her
current confinement or in an application for a writ of habeas corpus. See Wolff v.
McDonnell, 418 U.S. 539, 576 (1974); Carper v. DeLand, 54 F.3d 613, 617 (10th
Cir.1995). See also Lewis, 518 U.S. at 354 (disclaiming statements in Bounds
suggesting that the State must enable the prisoner to litigate effectively once in court)
(original emphasis).
Here, Mr. Brown does not allege that he suffered any actual injury, and he fails to
identify any nonfrivolous legal claim that he was unable to pursue. His complaint that
he was denied access to the courts because he had to handwrite pleadings is without
merit. Therefore, the access-to-the-courts claim and the Prisoner Complaint will be
dismissed as legally frivolous.
Furthermore, 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 Plaintiff files a notice of appeal he also must 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. Accordingly, it is
3

ORDERED that the Prisoner Complaint and the action are dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this

16th

day of

October

, 2013.

BY THE COURT:

s/Christine M. Arguello
CHRISTINE M. ARGUELLO
United States District Judge, for
LEWIS T. BABCOCK, Senior Judge
United States District Court

4