Johnson v. Serelson

23 F. App'x 949
Court of Appeals for the Tenth Circuit·Decided December 5, 2001·No. No. 01-8022·Published·Cited by 2 cases

Opinion

ORDER AND JUDGMENT *

BRISCOE, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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.

Andrew J. Johnson, a state prisoner appearing pro se, appeals the district court’s denial of his motion to alter or amend the district court’s judgment dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. We affirm.

I.

Johnson was convicted in Wyoming of aggravated burglary and first degree sexual assault in September 1989. The jury found him to be a habitual criminal and he was sentenced to life imprisonment. The Wyoming Supreme Court affirmed his conviction and sentence. Johnson v. State, 806 P.2d 1282 (Wyo.1991). He has filed four 28 U.S.C. § 2254 habeas petitions challenging his conviction, all of which have been denied or dismissed. See n. 2, below. He filed the present § 1983 action [951] in May 1999, claiming that David Serelson, the assistant public defender who represented him at trial, and Jon Forwood, the deputy district attorney who prosecuted him, violated his Eighth Amendment right to be free from cruel and unusual punishment by conspiring to convict him without a criminal information.

The district court dismissed the complaint, ruling that Johnson’s claims expired six years previously under the applicable statute of limitations and that the complaint further failed to state a claim for relief under Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (to recover damages for unconstitutional imprisonment, prisoner must show that conviction or sentence has been invalidated). Johnson then filed a timely motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e), which tolled the time for appeal. See Van Skiver v. United States, 952 F.2d 1241, 1243 (1991). On December 6, 2000, the district court denied the Rule 59(e) motion and entered a separate judgment dismissing the complaint, as required by Fed.R.Civ.P. 58.

Rather than file an appeal, however, Johnson filed a second motion to alter or amend the judgment on December 11, 2000. Because this motion was “successive,” it did not toll the time for appeal. Venable v. Haislip, 721 F.2d 297, 299 (10th Cir.1983). The thirty-day deadline to file an appeal from the December 6, 2000 judgment expired on January 5, 2001. The district court entered an order denying Johnson’s second Rule 59(e) motion on February 16, 2001. On March 16, 2001, Johnson filed his notice of appeal, stating he was appealing the February 16, 2001 order denying his motion to alter or amend the judgment.

Because Johnson’s second motion to alter or amend the judgment was not served within ten days of the district court’s judgment, it must be construed as a motion for relief from judgment under Fed.R.Civ.P. 60(b). See Van Skiver, 952 F.2d at 1243. Johnson’s appeal from the denial of his Rule 60(b) motion raises for review only the district court’s denial of that motion, and we do not consider the underlying judgment itself. Id.

We review the district court’s denial of Johnson’s Rule 60(b) motion for abuse of discretion. White v. Am. Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir.1990). Johnson contends on appeal that his Fifth Amendment right to equal protection of the law was violated because the district court lacked jurisdiction to enter a final disposition of the action. He claims that the defendants failed to file an answer to his complaint because (1) the answer they filed listed the district court docket number as 99-CV-90-J, when the actual docket number was 99-CV-90-D and (2) defendants violated a local rule by not filing their motion to dismiss at the same time they filed their answer. Johnson raised these same claims before the district court, seeking default judgments against defendants. As the district court correctly ruled, the insignificant, unintentional typographical error in the docket number did not prejudice Johnson in any way, warrant a default judgment, or invalidate the answer filed by defendants. As the district court also correctly ruled, the local rules did not obligate defendants to file their motion to dismiss on the same date as their answer, so long as both pleadings were timely filed, which they were. We find Johnson’s claim that his Fifth Amendment equal protection rights were violated to be wholly without merit, and we consider the outcome of this appeal to have been so obvious as to render it frivolous.

II.

Johnson has a history of frivolous and repetitive filings. In the course of this [952] litigation, he filed at least three motions seeking a default judgment based on indisputably meritless arguments,1 eleven motions demanding a decision on a motion, usually filed only days after filing the motion in question, and five motions seeking to alter or amend district court orders. Johnson’s complaint in this case failed to state a claim upon which relief could be granted and, as noted above, his appeal in this case is frivolous. We find that Johnson’s filings in this case are repetitive, frivolous, and malicious.

Free access — add to your briefcase to read the full text and ask questions with AI

Johnson v. Serelson, 23 F. App'x 949 (10th Cir. 2001).

23 F. App'x 949 (Johnson v. Serelson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Pedroza v. Lomas Auto Mall, Inc.
304 F.R.D. 307 (D. New Mexico, 2014)
Robles v. Amarr Garage Doors
509 F. App'x 741 (Tenth Circuit, 2013)