Goico v. State of Kansas

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 24, 2019
• Docket: 19-3116
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 24, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court PETER MARIO GOICO,

Plaintiff - Appellant,

v. No. 19-3116 (D.C. No. 6:19-CV-01055-JTM-GEB) STATE OF KANSAS, (D. Kan.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before CARSON, BALDOCK, and MURPHY, Circuit Judges. _________________________________

In March 2019, Plaintiff Peter Goico filed a complaint against the State of

Kansas, alleging the State’s “attempts” to legalize marijuana are unconstitutional. The

district court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and

§ 1915A(b) because the action was frivolous, i.e., “lack[ed] an arguable basis either in

law or in fact.” ROA, 70 (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). The

court explained that federal courts do not have the power to preempt prospective

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. legislation. Id. at 70–71 (citing McChord v. Cincinnati, New Orleans, & Tex. Pac. Ry.

Co., 183 U.S. 483, 496 (1902)). Plaintiff’s claim rested upon “pure speculation of

future legislation” and, thus, Plaintiff was impermissibly seeking “an advisory opinion

as to whether future legislation would be preempted by various constitutional rights.”

Id. (quotations omitted). Thus, the district court dismissed Plaintiff’s action.

On appeal, Plaintiff argues his complaint challenged, not only future

legislation, but also a law that was indeed passed in 2016 that lowered the penalties for

possession of marijuana. While Plaintiff mentioned the governor of Kansas was

“trying to lower penalties” in his complaint, Plaintiff was clearly challenging the

“attempts” to “legalize marijuana”—not lowering penalties for possession of

marijuana. ROA, 7 (“I always believed that marijuana legalization was a problem, but

now the unconstitutional attempts to do so are threatening a direct financial injury to

me.”); id. (challenging “state level laws that legalize marijuana”); id. (“Kansas

Governor, Laura Kelly, has become the latest to announce her intentions to legalize

Marijuana . . . .”); id. at 8 (“I can prove that my state’s unconstitutional attempts to

legalize a dangerous substance are directly threatening me.”). Any effort to change

course and now challenge the 2016 law—something neither argued nor ruled upon

below—is waived. See United States v. Kearn, 863 F.3d 1299, 1313 (10th Cir. 2017).

To the extent Plaintiff argues he is able to challenge potential future legislation, the

district court was correct in its holding. We have nothing further to add to the court’s

discussion, except to point out to Plaintiff that the place to engage in the political

process is with his state legislature, not with this Court.

2 Plaintiff also argues the district court erred in its holdings on anonymity.

Plaintiff sought to seal the record or proceed anonymously multiple times before the

district court. These motions were rejected because Plaintiff’s mental condition “was

not sufficiently embarrassing to warrant the extraordinary remedy of maintaining the

action anonymously” and because Plaintiff’s “condition was not logically linked to the

merits of the action.” We have previously stated:

Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity. The risk that a plaintiff may suffer some embarrassment is not enough.

Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000) (quoting Doe v. Frank, 951

F.2d 320, 324 (11th Cir. 1992)). We agree with the district court that this is not an

exceptional case that warrants anonymity. Accordingly, the district court did not err

in denying Plaintiff’s request for anonymity.

AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge