Roberts v. Childs

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 10 1997 TENTH CIRCUIT PATRICK FISHER Clerk

DAN ROBERTS,

Plaintiff-Appellant,

v.

STEVE P. CHILDS; WILLIAM F. LYLE, Jr., Judge; RENO COUNTY, No. 97-3108 KANSAS; STEVEN BECKER, Judge; (D.C. No. 96-CV-1355) PATRICIA MACKE-DICK, Judge; (D. Kan.) RICHARD ROME, Judge; D. STEWART OSWALT, deceased; ANDREW L. OSWALD; DAVID E. ROBERTS; DAVID KURT; ELLEN G. NEUFELD; RENO COUNTY LAW LIBRARY BOARD OF TRUSTEES,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Appellant Dan Roberts, appearing pro se, appeals the dismissal of his civil

rights action filed pursuant to 42 U.S.C. § 1983. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

According to his First Amended Complaint, filed January 22, 1997, Mr.

Roberts is currently charged with "cultivation of marijuana," a state offense, and

is awaiting prosecution in Reno County District Court. Mr. Roberts apparently is

not in custody and has been appointed a public defender to represent him on the

charge. He alleged in his amended complaint he is being denied effective

assistance of counsel as his assigned public defender "can hardly be expected to

provide effective assistance of counsel," when he is "burdened with fifty (50)

cases to handle." He further alleged he is being denied his right to represent

himself pro se through denial of access to the county law library. Finally, Mr.

Roberts claims denial of access to the county law library has deprived him of

equal protection of the laws under the Fourteenth Amendment. He seeks

compensatory and punitive damages in addition to equitable relief.

-2- On defendants' motions, the district court dismissed Mr. Roberts' complaint

against all defendants in well-written orders filed January 28, 1997 and March 25,

1997. The district court held insofar as Mr. Roberts' complaint seeks equitable

relief concerning his right to effective assistance of counsel, the right to represent

himself, or his right of access to the court in the state criminal matter, it must

abstain from exercising jurisdiction under the Younger v. Harris, 401 U.S. 37

(1971), doctrine. Younger and its progeny hold that absent extraordinary

circumstances creating a threat of great and immediate irreparable injury, a

federal court is prohibited from interfering with ongoing state criminal

proceedings. Id. at 45; Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir.

1995); Parkhurst v. Wyoming, 641 F.2d 775, 777 (10th Cir. 1981).

Insofar as Mr. Roberts seeks monetary damages stemming from the alleged

ineffective assistance of counsel or denial of the right to represent himself, the

court held such claims unactionable under § 1983 unless and until Mr. Roberts is

convicted on the pending criminal charge and that conviction is later invalidated

on those grounds. The court further held denial of access to the county law

library to a person not in state custody and represented by counsel does not

amount to a denial of access to the courts as guaranteed by the Fourteenth

Amendment. Finally, the court held Mr. Roberts failed to allege an equal

-3- protection claim under circumstances where he was allowed access to the county

law library if accompanied by his appointed counsel, and where access

restrictions are rationally related to legitimate purposes such as protecting library

resources from theft and collecting user fees to maintain the library. For these

reasons, the district court dismissed Mr. Roberts' damages claims for failure to

state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

We have carefully reviewed the briefs and the record on appeal. Finding no

error, we AFFIRM the district court's dismissal of Mr. Roberts' complaint for

substantially the same reasons set forth in the district court's order filed January

28, 1997.

Entered for the Court

WADE BRORBY United States Circuit Judge

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