McKibben v. Parsons

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 5 1997 TENTH CIRCUIT PATRICK FISHER Clerk

JOHN J. MCKIBBEN,

Plaintiff-Appellant,

v.

WALT PARSONS, MATT LINDVALL, ANDREW MCDONALD, DANA DELANY, TERRY HALFORD, PETER MICHAELSON, No. 96-1468 JANET FOLSOM, JOSEPH (District of Colorado) BENNETT, TIM MIENERT, JAY (D.C. No. 94-N-2631) TROMBETTA; WARREN HUMBLE, CAROL JENNY, WELDON MCDONALD, CAROL MCDONALD, DAN RUPP, MR. JAMES FARENHOLTZ, BETH KRULEWITCH, MRS. JAMES FARENHOLTZ, individually and in their official capacities,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 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); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

Appellant John J. McKibben appeals the dismissal of his civil suit brought

under 42 U.S.C. § 1983 in the United States District Court for the District of

Colorado. In 1991, McKibben was convicted in the Eagle County District Court,

Colorado, of second degree sexual assault. McKibben subsequently sued eighteen

individuals involved in his prosecution, including the victim, the victim’s parents,

the prosecutors, law enforcement officers, witnesses, his own attorneys, and a

court clerk. McKibben’s complaint is a rambling, confusing string of factual

allegations which, McKibben argues, support his claim that the defendants

conspired against him.

The magistrate judge found that McKibben “provided no evidence of any

conspiracy or any deprivation of a constitutional right that would allow recovery

under § 1983.” Report and Recommendation at 12. The judge continued, “On the

contrary, the pleadings submitted by [McKibben] reflect the actions of an

individual who has attempted to use this case as a means of retaliation against

anyone who was remotely involved in his conviction . . . .” Id. at 12-13. The

magistrate judge then recommended that the district court dismiss the case with

-2- prejudice because, among other reasons, it was malicious, within the meaning of

28 U.S.C. § 1915(d). 1 The district court agreed with the magistrate judge’s

recommendations, determined that the action was frivolous, and dismissed the

case.

For substantially the reasons set forth in the magistrate’s Recommendation

of August 18, 1995, and the district court’s Order of September 23, 1996, we

DISMISS the appeal as frivolous. As an appeal dismissed on grounds of being

frivolous, 28 U.S.C. § 1915(g) is triggered for the purpose of counting a “prior

occasion.” Furthermore, we note the district court dismissed the case for failure

to state a claim upon which relief could be granted, with the additional

determination that the action was frivolous, thereby triggering the counting of an

additional “prior occasion.” 2 A prisoner may not proceed under 28 U.S.C. § 1915

if he has, on three or more prior occasions, filed actions or brought appeals which

The relevant provision of 1915(d) is now codified at 28 U.S.C. 1

§ 1915(e)(2)(B)(i).

Although the district court dismissed this case after the enactment of the 2

Prison Litigation Reform Act (“PLRA”), which established the “prior occasions” rule codified at 28 U.S.C. § 1915(g), McKibben filed his complaint prior to the PLRA’s enactment. Nonetheless, counting the dismissal of the complaint as a “prior occasion” does not raise concerns of statutory retroactivity. See Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996) (holding retroactivity concerns not raised by counting “prior occasion” under § 1915(g) where filing of complaint as well as district court dismissal occurred prior to PLRA enactment).

-3- are frivolous or fail to state a claim upon which relief can be granted. 28 U.S.C.

§ 1915(g).

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

-4-