Zimmer v. Gallagher

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 6, 2022
• Docket: 22-1270
• Status: Unpublished

Opinion

Appellate Case: 22-1270 Document: 010110778141 Date Filed: 12/06/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 6, 2022 _________________________________ Christopher M. Wolpert Clerk of Court PATRICK M. ZIMMER,

Plaintiff - Appellant,

v. Nos. 22-1270, 22-1271, 22-1272, 22-1273, 22-1274, 22-1275 GORDON P. GALLAGHER, Magistrate (D.C. Nos. 1:22-CV-02013-LTB, Judge, 1:22-CV-02018-LTB, 1:22-CV-02019- LTB, 1:22-CV-02022-LTB, 1:22-CV- Defendant - Appellee. 02021-LTB, 1:22-CV-02016-LTB) (D. Colo.) _________________________________

ORDER AND JUDGMENT * _________________________________

Before MATHESON, KELLY, and ROSSMAN, Circuit Judges. _________________________________

Patrick M. Zimmer, proceeding pro se, appeals the district court’s summary

dismissals of his six nearly identical complaints on the grounds they were frivolous,

malicious, and abusive. See 28 U.S.C. § 1915(e)(2)(b)(i). Exercising jurisdiction

* After examining the briefs and appellate record, this panel has determined unanimously to honor the appellant’s request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-1270 Document: 010110778141 Date Filed: 12/06/2022 Page: 2

under 28 U.S.C. § 1291, we affirm and dismiss the appeals as frivolous. We deny his

request to proceed in forma pauperis (“ifp”) on appeal. 1

I. BACKGROUND

Mr. Zimmer filed six civil actions against Magistrate Judge Gallagher, each (1)

alleging that Magistrate Judge Gallagher’s actions and orders in a separate case

violated his rights under the Fourteenth Amendment, and (2) seeking five million

dollars in damages.

The district court summarily dismissed the cases, stating they “appear to be

nothing more than an attempt to manipulate the assignment of judges in Plaintiff’s

cases” and “are malicious and abusive for that reason.” ROA at 9-11. It further

stated that sovereign immunity bars a claim asserted against a federal officer in his

official capacity, and absolute immunity bars suits seeking money damages against

judges exercising their judicial discretion.

Mr. Zimmer filed a notice of appeal. The district court denied leave to appeal

ifp under 28 U.S.C. § 1915(a)(3), which provides that “[a]n appeal may not be taken

in forma pauperis if the trial court certifies in writing that it is not taken in good

faith,” as the district court did here.

1 Because Mr. Zimmer appears pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

2 Appellate Case: 22-1270 Document: 010110778141 Date Filed: 12/06/2022 Page: 3

II. DISCUSSION

We review the district court’s dismissal of claims as frivolous under 28 U.S.C.

§ 1915(e)(2)(b)(i) for abuse of discretion. See Fogle v. Pierson, 435 F.3d 1252, 1259

(10th Cir. 2006). If the frivolousness determination turns on an issue of law, our

review is de novo. Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003).

Mr. Zimmer argues that under Harper v. McDonald, 679 F.2d 955 (D.C. Cir.

1982), cases brought under the constitutional amendments are not frivolous. Aplt.

Br. at 2. Beyond stating that oral argument will not be necessary, he leaves the rest

of the pro se appeal brief form blank. Id. at 3-4.

The district court did not abuse its discretion. When a plaintiff proceeds ifp

before the district court, 28 U.S.C. § 1915 requires judges to dismiss the proceeding

“at any time if the court determines” that it “is frivolous or malicious.” 28 U.S.C.

§ 1915(e)(2). Rather than appeal the district court’s unfavorable ruling in his

separate case, Mr. Zimmer filed six suits against Magistrate Judge Gallagher. The

district court did not abuse its discretion in concluding that these suits were

“frivolous, malicious, and abusive.” ROA at 9.

Mr. Zimmer’s reliance on Harper v. McDonald is unavailing. In Harper, the

D.C. Circuit explained that the district court possessed jurisdiction over claims made

“directly under the Constitution” when, unlike Mr. Zimmer’s claims here, they were

neither “wholly insubstantial nor frivolous.” 679 F.2d at 956 (quotations omitted).

Because Mr. Zimmer lists no other issues on these appeals, any other

arguments he made before the district court are waived. See Burke v. Regalado, 935

3 Appellate Case: 22-1270 Document: 010110778141 Date Filed: 12/06/2022 Page: 4

F.3d 960, 995 (10th Cir. 2019) (“The failure to raise an issue in an opening brief

waives that issue.” (quotations omitted)). And even if Mr. Zimmer had properly

presented other arguments in this appeal, we agree with the district court that

sovereign immunity and absolute immunity shield Magistrate Judge Gallagher from

suit. See United States v. Mitchell, 463 U.S. 206, 212 (1983); Andrews v. Heaton,

483 F.3d 1070, 1076 (10th Cir. 2007).

III. CONCLUSION

We affirm the district court's dismissal of the six actions as frivolous, dismiss

these appeals as frivolous, and assess a strike against Mr. Zimmer under the Prisoner

Litigation Reform Act. See 42 U.S.C. § 1997(e). 2 Because Mr. Zimmer fails to show

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

of the issues raised in his action,” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312

(10th Cir. 2005), we deny his motion for leave to proceed ifp on appeal. Mr. Zimmer

is obligated to pay the filing fee in full for each of his appeals. 3

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

2 Because Mr. Zimmer has accrued more than three strikes, he may no longer proceed ifp in any civil action filed in federal court unless he is in imminent danger of physical injury. 28 U.S.C. § 1915(g); see also Thompson v. Gibson, 289 F.3d 1218, 1222-23 (10th Cir. 2002). 3 Mr. Zimmer’s Notice, filed on November 28, 2022, does not raise meritorious arguments or alter this disposition. 4