Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 19, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TOMAS MARS GARCIA,
Plaintiff - Appellant,
v. No. 24-1042 (D.C. No. 1:22-CV-01587-LTB-SBP) GENE GRABOWSKI; TERRY JAQUES; (D. Colo.) DEAN WILLIAMS; PAULA ALCORN; CYNTHIA GIERSDORF; CARL STEINKE; KEITH BORDERLON; JOE COLPITTS; JOHN AND JANE DOES,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Plaintiff Tomas Mars Garcia, a Colorado state prisoner appearing pro se,
appeals from the district court’s dismissal of the 42 U.S.C. § 1983 civil rights action
he filed against state correctional officials. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, we affirm the judgment of the district court.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 2
I
In April 2022, Garcia, who was then an inmate at the Limon Correctional
Facility (LCF) in Limon, Colorado, filed a pro se complaint in Colorado state court
against two officials at LCF, the executive director of the Colorado Department of
Corrections (CDC), and unnamed employees of LCF and CDC. The complaint
alleged a variety of misdeeds by defendants, including, for example, moving Garcia
from a minimum custody facility to LCF without justification, embezzlement of his
prison account funds, and failing to make necessary repairs to the facilities at LCF.
Garcia alleged, in relevant part, that defendants’ actions and/or negligence violated
his constitutional rights to freedom of speech and assembly, due process, and to be
free from cruel and unusual punishment.
The named defendants removed the case to federal district court and argued
the case “should be construed as one being brought under 42 U.S.C. § 1983.”
R. at 9–10. The district court agreed and concluded removal was proper under
28 U.S.C. § 1441(a). The district court screened the complaint pursuant to 28 U.S.C.
§ 1915A and concluded it did “not assert any clear claims” and thus failed to
“comply with Rule 8 of the Federal Rules of Civil Procedure.” Id. at 245. The
district court ordered Garcia to file an amended complaint on a court-approved
prisoner complaint form within thirty days.
Garcia filed an amended complaint on a court-approved prisoner complaint
form. The amended complaint alleged three claims for relief: (1) that defendants
charged Garcia excessive fees for double-sided copies of state administrative
2 Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 3
regulations; (2) that defendants tampered with Garcia’s legal mail by tearing off
certified mail labels on outgoing envelopes and replacing those labels with priority
mail labels, and also by improperly weighing Garcia’s outgoing legal mail; and
(3) that defendants destroyed Garcia’s “family color pictures and alter[ed] the color
picture to black and white.” Id. at 263. Garcia requested $250,000 in damages for
each of these claims.
The magistrate judge screened the amended complaint pursuant to 28 U.S.C.
§ 1915A and recommended that it be dismissed for a number of reasons. To begin
with, the magistrate judge concluded that, to the extent the amended complaint
asserted claims against LCF and CDC employees in their official capacities, those
claims were subject to dismissal under the Eleventh Amendment. The magistrate
judge in turn concluded that the first claim in the amended complaint was subject to
dismissal as frivolous because Garcia did not allege that he needed the copies for any
specific legal proceeding or case and also did “not complain that his access to the
courts was unduly hampered because he was charged 50 cents per page” for the
copies. Id. at 342. As for the second and third claims, both of which related to
defendants’ handling of Garcia’s mail, the magistrate judge concluded that Garcia’s
allegations of wrongdoing were “vague and conclusory” and failed “to show that
Defendants acted in a manner unrelated to a legitimate penological interest, in
violation of his First Amendment rights.” Id. at 344–45. The magistrate judge
therefore recommended that those claims be dismissed without prejudice for failure
to comply with Federal Rule of Civil Procedure 8.
3 Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 4
After allowing Garcia to file written objections to the magistrate judge’s
recommendation, the district court reviewed and adopted the recommendation. The
district court therefore dismissed the first claim in the amended complaint “with
prejudice as frivolous under 28 U.S.C. § 1915A(b)(1),” and dismissed the second and
third claims “without prejudice for failing to comply with Fed. R. Civ. P. 8.” Id.
at 398.
Garcia now appeals.
II
Garcia challenges only the district court’s dismissal of the first claim in his
amended complaint. We review de novo a district court’s dismissal of a claim or
complaint under 28 U.S.C. § 1915A(b)(1). See Vasquez Arroyo v. Starks, 589 F.3d
1091, 1094 (10th Cir. 2009). Because Garcia is proceeding pro se, we liberally
construe his pleadings but “will not act as his advocate.” James v. Wadas, 724 F.3d
1312, 1315 (10th Cir. 2013).
Section 1915A(a) requires a district court to review “a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. § 1915A(a).
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Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 19, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TOMAS MARS GARCIA,
Plaintiff - Appellant,
v. No. 24-1042 (D.C. No. 1:22-CV-01587-LTB-SBP) GENE GRABOWSKI; TERRY JAQUES; (D. Colo.) DEAN WILLIAMS; PAULA ALCORN; CYNTHIA GIERSDORF; CARL STEINKE; KEITH BORDERLON; JOE COLPITTS; JOHN AND JANE DOES,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Plaintiff Tomas Mars Garcia, a Colorado state prisoner appearing pro se,
appeals from the district court’s dismissal of the 42 U.S.C. § 1983 civil rights action
he filed against state correctional officials. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, we affirm the judgment of the district court.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 2
I
In April 2022, Garcia, who was then an inmate at the Limon Correctional
Facility (LCF) in Limon, Colorado, filed a pro se complaint in Colorado state court
against two officials at LCF, the executive director of the Colorado Department of
Corrections (CDC), and unnamed employees of LCF and CDC. The complaint
alleged a variety of misdeeds by defendants, including, for example, moving Garcia
from a minimum custody facility to LCF without justification, embezzlement of his
prison account funds, and failing to make necessary repairs to the facilities at LCF.
Garcia alleged, in relevant part, that defendants’ actions and/or negligence violated
his constitutional rights to freedom of speech and assembly, due process, and to be
free from cruel and unusual punishment.
The named defendants removed the case to federal district court and argued
the case “should be construed as one being brought under 42 U.S.C. § 1983.”
R. at 9–10. The district court agreed and concluded removal was proper under
28 U.S.C. § 1441(a). The district court screened the complaint pursuant to 28 U.S.C.
§ 1915A and concluded it did “not assert any clear claims” and thus failed to
“comply with Rule 8 of the Federal Rules of Civil Procedure.” Id. at 245. The
district court ordered Garcia to file an amended complaint on a court-approved
prisoner complaint form within thirty days.
Garcia filed an amended complaint on a court-approved prisoner complaint
form. The amended complaint alleged three claims for relief: (1) that defendants
charged Garcia excessive fees for double-sided copies of state administrative
2 Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 3
regulations; (2) that defendants tampered with Garcia’s legal mail by tearing off
certified mail labels on outgoing envelopes and replacing those labels with priority
mail labels, and also by improperly weighing Garcia’s outgoing legal mail; and
(3) that defendants destroyed Garcia’s “family color pictures and alter[ed] the color
picture to black and white.” Id. at 263. Garcia requested $250,000 in damages for
each of these claims.
The magistrate judge screened the amended complaint pursuant to 28 U.S.C.
§ 1915A and recommended that it be dismissed for a number of reasons. To begin
with, the magistrate judge concluded that, to the extent the amended complaint
asserted claims against LCF and CDC employees in their official capacities, those
claims were subject to dismissal under the Eleventh Amendment. The magistrate
judge in turn concluded that the first claim in the amended complaint was subject to
dismissal as frivolous because Garcia did not allege that he needed the copies for any
specific legal proceeding or case and also did “not complain that his access to the
courts was unduly hampered because he was charged 50 cents per page” for the
copies. Id. at 342. As for the second and third claims, both of which related to
defendants’ handling of Garcia’s mail, the magistrate judge concluded that Garcia’s
allegations of wrongdoing were “vague and conclusory” and failed “to show that
Defendants acted in a manner unrelated to a legitimate penological interest, in
violation of his First Amendment rights.” Id. at 344–45. The magistrate judge
therefore recommended that those claims be dismissed without prejudice for failure
to comply with Federal Rule of Civil Procedure 8.
3 Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 4
After allowing Garcia to file written objections to the magistrate judge’s
recommendation, the district court reviewed and adopted the recommendation. The
district court therefore dismissed the first claim in the amended complaint “with
prejudice as frivolous under 28 U.S.C. § 1915A(b)(1),” and dismissed the second and
third claims “without prejudice for failing to comply with Fed. R. Civ. P. 8.” Id.
at 398.
Garcia now appeals.
II
Garcia challenges only the district court’s dismissal of the first claim in his
amended complaint. We review de novo a district court’s dismissal of a claim or
complaint under 28 U.S.C. § 1915A(b)(1). See Vasquez Arroyo v. Starks, 589 F.3d
1091, 1094 (10th Cir. 2009). Because Garcia is proceeding pro se, we liberally
construe his pleadings but “will not act as his advocate.” James v. Wadas, 724 F.3d
1312, 1315 (10th Cir. 2013).
Section 1915A(a) requires a district court to review “a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. § 1915A(a). Section 1915A(b) in
turn requires a district court to dismiss the complaint or any portion of it that “is
frivolous, malicious, or fails to state a claim upon which relief may be granted.”
28 U.S.C. § 1915A(b)(1).
In his appellate brief, Garcia essentially repeats the allegations that were
contained in the first claim of his amended complaint. That claim, as we have noted,
4 Appellate Case: 24-1042 Document: 010111096495 Date Filed: 08/19/2024 Page: 5
alleged that defendants violated Garcia’s First Amendment rights by overcharging
him for copies of state administrative regulations he requested. Notably, Garcia did
not allege that he needed the copies for use in connection with any legal proceeding
or disciplinary hearing. See Requena v. Roberts, 893 F.3d 1195, 1208–09 (10th Cir.
2018). Nor did Garcia allege that the excessive charges otherwise hampered his
access to the courts. In short, Garcia failed to tie the alleged overcharging to any
protected First Amendment activity. We therefore conclude the district court
appropriately dismissed the claim as frivolous under § 1915A(b)(1).
III
The judgment of the district court is affirmed. Garcia’s motion for leave to
proceed on appeal in forma pauperis is denied. His “Supplemental for Appointment
of Counsel” is also denied.
Entered for the Court
Mary Beck Briscoe Circuit Judge