Newton v. Moten

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 1 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

EDWARD RICHARD NEWTON,

Plaintiff-Appellant,

v. No. 97-2212 (D.C. No. CIV-93-994-JP) LADON MOTEN, Individually and (D. N.M.) as a Police Officer in the New Mexico State Police Department; NEIL MERTZ, Individually and as Chief Deputy District Attorney for the County of Socorro; JEFF LAHANN, Individually and as Senior Trial Prosecutor for the County of Socorro,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. The case is therefore

ordered submitted without oral argument.

Plaintiff seeks leave to appeal in forma pauperis the district court’s denial

of his Fed. R. Civ. P. 60(b) motion, which sought to set aside the court’s

dismissal of his civil rights action. Plaintiff, who was incarcerated, instituted the

underlying action under a false name and then failed to prosecute the action after

escaping from prison. The district court subsequently granted defendants’ motion

to dismiss, which was based on improper service, failure to prosecute, and Rule

11 violations. Almost three years later, plaintiff filed the present Rule 60(b)

motion, in which he acknowledged that he had filed the complaint under a false

name and explained that he had been unable to prosecute the action after his

escape because he was hiding from authorities. The district court denied the Rule

60(b) motion, finding both that it was not filed within a reasonable time and that

it was without merit.

Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), this court “shall dismiss the case

at any time if the court determines that . . . the action or appeal is frivolous or

malicious.” Based upon our review of the briefs and the record, we conclude that

the present appeal is frivolous. Therefore, plaintiff’s request to proceed in forma

-2- pauperis is DENIED and the appeal is DISMISSED as frivolous. Because this

appeal is frivolous under § 1915(e)(2)(B), it counts as a “prior occasion[]” under

28 U.S.C. § 1915(g). Plaintiff is hereby notified that three filings of cases that

are dismissed or affirmed on the basis that they are frivolous or fail to state a

claim under § 1915(g) will result in him being unable to proceed in forma

pauperis under the provisions of 28 U.S.C. § 1915.

Entered for the Court

Bobby R. Baldock Circuit Judge

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