Moscoso v. Courts of Denver Colorado

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 7, 2025
• Docket: 24-1284
• Status: Unpublished

Opinion

Appellate Case: 24-1284 Document: 17-1 Date Filed: 01/07/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 7, 2025 _________________________________ Christopher M. Wolpert Clerk of Court VINCHENZO B. MOSCOSO,

Plaintiff - Appellant,

v. No. 24-1284 (D.C. No. 1:24-CV-01153-LTB) COURTS OF DENVER COLORADO; (D. Colo.) JARED POLIS; BETH MCCANN; PHILIP J. WEISER,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, KELLY, and BACHARACH, Circuit Judges. _________________________________

Vinchenzo B. Moscoso brought this pro se action as a pretrial detainee,

claiming that the Governor and Attorney General of Colorado and the Denver District

Attorney were allowing Denver courts to operate unconstitutionally. He sought $40

million in damages and filed a motion under 28 U.S.C. § 1915 for leave to proceed

without prepayment of costs and fees (IFP motion). A federal magistrate judge

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-1284 Document: 17-1 Date Filed: 01/07/2025 Page: 2

determined Moscoso’s IFP motion was deficient because it did not authorize the

calculation and disbursement of partial payments from his institutional trust fund

account. The magistrate judge therefore directed Moscoso to cure the deficiency

within 30 days, warning him that failure to do so would result in dismissal without

further notice. Moscoso did not respond, so after more than 30 days passed, the

district court dismissed the action without prejudice under Federal Rule of Civil

Procedure 41(b) for failure to cure the deficiency. Moscoso appealed.

We ordinarily review Rule 41(b) dismissals for abuse of discretion.

See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007).

But Moscoso has waived appellate review by failing to challenge or even address the

district court’s reason for dismissing his case, namely that he failed to cure the

deficiency in his IFP motion. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364,

1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why the

district court’s decision was wrong.”); see id. at 1369 (affirming dismissal of claim

because appellant failed to challenge the basis for the district court’s dismissal).

Indeed, rather than address the district court’s ground for dismissal, Moscoso focuses

on the merits of his underlying claims, asserting Denver courts are exercising

“unconstitutional criminal jurisdiction.” Aplt. Br. at 3 (internal quotation marks

omitted). Although we liberally construe his pro se materials, he must “follow the

same rules of procedure that govern other litigants.” Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation marks

omitted). We cannot craft arguments on his behalf, see id., and absent any

2 Appellate Case: 24-1284 Document: 17-1 Date Filed: 01/07/2025 Page: 3

explanation why the district court’s dismissal was wrong, we are bound to affirm,

see Nixon, 784 F.3d at 1366; see also Iweha v. Kansas, 121 F.4th 1208, 1235

(10th Cir. 2024) (recognizing an appellant “must squarely present [his] disagreement

with the district court’s . . . determination in [his] brief”).

This appeal is therefore dismissed as frivolous and our dismissal constitutes a

strike under 28 U.S.C. § 1915(g). See Jennings v. Natrona Cnty. Det. Ctr. Med.

Facility, 175 F.3d 775, 780-81 (10th Cir. 1999), overruled in part on other grounds

by Coleman v. Tollefson, 575 U.S. 532 (2015). Moscoso’s motion to proceed on

appeal without prepayment of costs and fees is denied. See DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (requiring an appellant to raise a

nonfrivolous argument to obtain leave to proceed on appeal without prepayment of

costs or fees).

Entered for the Court

Harris L Hartz Circuit Judge