Stewart v. Stitt

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 23, 2024
• Docket: 23-6212
• Status: Unpublished

Opinion

Appellate Case: 23-6212 Document: 010111083314 Date Filed: 07/23/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 23, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ANTHONY STEWART,

Plaintiff - Appellant,

v. No. 23-6212 (D.C. No. 5:23-CV-00832-R) KEVIN STITT; LARRY MORRIS; (W.D. Okla.) ADAM LUCK; SCOTT WILLIAMS; ALLEN McCALL,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, EID, and FEDERICO, Circuit Judges. _________________________________

Anthony Stewart, an Oklahoma prisoner proceeding pro se,1 appeals the

dismissal of his 42 U.S.C. § 1983 action against various Oklahoma officials.

Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss this appeal as frivolous.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 “Because [Mr. Stewart] appeared pro se, we liberally construe his pleadings. Nevertheless, . . . he must comply with the same rules of procedure as other litigants.” Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018) (citation (continued) Appellate Case: 23-6212 Document: 010111083314 Date Filed: 07/23/2024 Page: 2

Mr. Stewart’s § 1983 complaint presented two claims: (1) that the governor of

Oklahoma violated his constitutional rights by not signing legislation that would have

brought about sentencing reform in the state and (2) that the lack of uniform criteria

or specific rules governing Oklahoma’s pardon and parole proceedings denied him

due process of law. Screening the complaint under 28 U.S.C. § 1915A(a), the

magistrate judge issued a report and recommendation to dismiss. Mr. Stewart filed

timely objections, which the district court overruled. The district court agreed that

Mr. Stewart’s allegations challenge the legality and execution of his sentence, so § 1983

is not the proper vehicle for his claims. The court therefore adopted the recommendation

and dismissed the claims without prejudice. This timely appeal followed.2

“Dismissal for failure to state a claim is a legal question we review de novo.”

Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (reviewing a dismissal under

§ 1915A(b)(1)). “We must accept all the well-pleaded allegations of the complaint as

true and must construe them in the light most favorable to the plaintiff.” Id. (internal

quotation marks omitted).

omitted). And in the course of our review, “[w]e will not act as his counsel, searching the record for arguments he could have, but did not, make.” Id. 2 Mr. Stewart filed a motion “request[ing] that a Certificate of Appealability be issued” in the district court. R. at 31. The district court denied that request as moot because appeals of § 1983 actions do not require a certificate of appealability. We have held such a request can operate as “the functional equivalent of a notice of appeal,” Martin v. Rios, 472 F.3d 1206, 1207 (10th Cir. 2007), and we so construe it here. Because he filed this motion within 30 days of the judgment of dismissal, we therefore consider Mr. Stewart’s appeal timely under Fed. R. App. P. 4(a)(1)(A).

2 Appellate Case: 23-6212 Document: 010111083314 Date Filed: 07/23/2024 Page: 3

Mr. Stewart’s arguments on appeal do not in any way address the underlying

basis for the dismissal of his lawsuit. He reiterates the allegations in his complaint

regarding Oklahoma’s sentencing scheme and asserts the state denied his application

for commutation without a valid reason. But he in no way addresses the core reason

for the dismissal: he “cannot use a § 1983 action to challenge the fact or duration of

his confinement. He must seek federal habeas corpus relief (or appropriate state

relief) instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citations and internal

Seeing no meaningful challenge to the district court’s basis for dismissal,

we dismiss this appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

See Ford v. Pryor, 552 F.3d 1174, 1180 (10th Cir. 2008) (“An appeal is frivolous

when the result is obvious.” (internal quotation marks omitted)). We deny

Mr. Stewart’s motion to proceed in forma pauperis for failure to show “the existence

of a reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

We also deny his “Judicial Notice Motion for Summary Disposition.”

This dismissal, in addition to the district court’s dismissal for failure to state a

claim, operates as a strike under § 1915(g), so Mr. Stewart now has two strikes.

See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780

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(10th Cir. 1999), overruled in part on other grounds, Coleman v. Tollefson,

575 U.S. 532 (2015).

Entered for the Court

Allison H. Eid Circuit Judge