Armijo et al v. Hayes et al

Filing 125

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning denying Plaintiff's Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees (non-PLRA) and certifying that Plaintiff's appeal is not taken in good faith. (hj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SIMON ARMIJO,
Plaintiff,
vs.

No. CIV 14-0362 JB/CG

RONY D. HAYES; LARRY CEARLY;
ROBERT GRIEGO and VILLAGE OF
MAGDALENA,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Plaintiff’s Motion for Leave to Proceed on
Appeal Without Prepayment of Costs or Fees (non-PLRA), filed December 5, 2017
(Doc. 117)(“Motion for Leave to Appeal IFP”). The Court will deny Plaintiff Simon Armijo’s
Motion for Leave to Appeal IFP, because he has not shown the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on appeal. The Court
will certify that Armijo’s appeal is not taken in good faith, because his argument of error is without
merit.
PROCEDURAL BACKGROUND
Armijo filed his Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, filed April 16, 2014
(Doc. 2)(“Complaint”), against the four Defendants on April 16, 2014. On March 11, 2016, the
Court dismissed with prejudice all claims against Defendant Rony D. Hays and dismissed with
prejudice the malicious prosecution claim against Defendant Robert Griego. See Armijo v.
Hayes, No. CIV 14-0362, 2016 WL 1169310, at *9 (D.N.M. Mar. 11, 2016)(Browning, J.);
Memorandum Opinion and Order at 17-18, filed March 11, 2016 (Doc. 76). On March 15, 2016,

the Court dismissed with prejudice all claims against Defendants Larry Cearly and the Village of
Magdalena. See Armijo v. Hayes, No. CIV 14-0362, 2016 WL 1158068, at *11 (D.N.M. Mar.
15, 2016)(Browning, J.); Memorandum Opinion and Order at 23, filed March 14, 2016 (Doc. 77).
On September 30, 2017, the Court granted Defendant Robert Griego’s Motion for Summary
Judgment on the Basis of Qualified Immunity, dismissing all claims against Griego with prejudice.
See Armijo v. Hays, No. CIV 14-0362, 2017 WL 4358701, at *4 (D.N.M. Sept. 30, 2017)
(Browning, J.); Memorandum Opinion and Order Adopting the Magistrate Judge’s Proposed
Findings and Recommended Disposition at 7, filed September 30, 2017 (Doc. 108).
On November 29, 2017, Armijo filed his Notice of Appeal. See Notice of Appeal, filed
November 28, 2017 (Doc. 113). The Notice of Appeal states that Armijo appeals the orders and
judgments entered on September 30, 2017, and March 15, 2016. See Notice of Appeal at 1. The
Notice of Appeal does not identify any issues Armijo seeks to appeal. On December 5, 2017,
Armijo filed his Motion for Leave to Appeal IFP using the form “Motion for Leave to Proceed on
Appeal Without Prepayment of Costs or Fees (non-PLRA).” Where that form prompts the
appellant to identify his “issues on appeal,” Armijo wrote: “Affidavit for search warrant, search
warrant.” Motion for Leave to Appeal IFP at 2.
LAW REGARDING LEAVE TO APPEAL IN FORMA PAUPERIS
In order to succeed on [a motion for leave to proceed on appeal without prepayment
of costs or fees], an appellant must show a financial inability to pay the required
filing fees and the existence of a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal.
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). “An appeal may not be taken in
forma pauperis if the trial court certifies in writing that it is not taken in good faith.”

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28 U.S.C. § 1915(a)(3). “The Supreme Court has held that good faith is to be judged by an
objective standard, for review of any issue ‘not frivolous.’” Spearman v. Collins, 500 F. App’x
742, 743 (10th Cir. 2012)1(citing Coppedge v. United States, 369 U.S. 438, 445 (1962)). “An
appeal is frivolous when the result is obvious, or the appellant’s arguments of error are wholly
without merit.” Spearman v. Collins, 500 F. App’x at 743. See Thompson v. Gibson, 289 F.3d
1218, 1222 (10th Cir. 2002)(stating that “an appeal is frivolous if it lacks an arguable basis in
either law or fact”).
ANALYSIS
The Court will deny Armijo’s Motion for Leave to Appeal IFP, because Armijo has not
shown “the existence of a reasoned, nonfrivolous argument on the law and facts in support of the
issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). The
only issue Armijo raises on appeal is: “Affidavit for search warrant, search warrant.” Motion for
Leave to Appeal IFP at 2. Armijo does not identify any issues on appeal in his Notice of Appeal.
The Court will certify that Armijo’s appeal is not taken in good faith, because he does not
assert any argument of error or offer legal authority to support his appeal.

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Spearman v. Collins is an unpublished opinion, but the Court can rely on an unpublished
United States Court of Appeals for the Tenth Circuit opinion to the extent its reasoned analysis is
persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished opinions are
not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated: “In
this circuit, unpublished orders are not binding precedent, . . . and . . . citation to unpublished
opinions is not favored . . . . However, if an unpublished opinion . . . has persuasive value with
respect to a material issue in a case and would assist the court in its disposition, we allow a citation
to that decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court
concludes that Spearman v. Collins has persuasive value with respect to a material issue, and will
assist the Court in its preparation of this Memorandum Opinion and Order.

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IT IS ORDERED that: (i) Plaintiff’s Motion for Leave to Proceed on Appeal Without
Prepayment of Costs or Fees (non-PLRA), filed December 5, 2017 (Doc. 117), is denied; and
(ii) the Court certifies that Plaintiff Simon Armijo’s appeal is not taken in good faith.

________________________________
UNITED STATES DISTRICT JUDGE

Parties and counsel:
Simon Armijo
Magdalena, New Mexico
Plaintiff pro se
James P. Lyle
Law Offices of James P. Lyle P.C.
Albuquerque, New Mexico
Attorney for Defendants Larry Cearly and the Village of Magdalena
Douglas E. Gardner
Robles, Rael & Anaya, P.C.
Albuquerque, New Mexico
Attorney for Defendants Rony D. Hays and Robert Griego

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