Jurgen Bohnke, Plaintiff-appellant, v. Aristedes Zavaras; Willis Davis; Cynthia Heelan; Coloradomountain College, Dean of Colorado Mountain College Board Oftrustees; Colorado Mountain College Student Recordsadministrator; Colorado Mountain College Financial Aidadministrator, Defendants-appellees, 37 F.3d 1509 (10th Cir. 1994)
Annotate this CaseBefore TACHA, BRORBY and EBEL, Circuit Judges
ORDER AND JUDGMENT1
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 cause is therefore ordered submitted without oral argument.
Mr. Bohnke, a pro se litigant, seeks to appeal the district court's order dismissing his 42 U.S.C.1983 complaint. The district court, over Mr. Bohnke's objection, adopted the magistrate judge's recommendation that Mr. Bohnke had not alleged sufficient facts to support a cognizable constitutional claim under 1983.2 Mr. Bohnke thereafter requested leave from the district court to appeal in forma pauperis pursuant to 28 U.S.C.1915(d). This motion was denied.
We have reviewed the record on appeal and we cannot say the district court abused its discretion in denying leave to appeal in forma pauperis. See Shabazz v. Askins, 980 F.2d 1333, 1333 (10th Cir. 1992) (citing Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992)). " [A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Mr. Bohnke's complaint lacks an arguable basis in that no viable and recognized constitutional right has been implicated. Therefore, we find no abuse of discretion in denying the motion for leave to appeal in forma pauperis under 1915(d)). See Shabazz, 980 F.2d at 1333. In addition, Mr. Bohnke's motion in this court seeking leave to appeal in forma pauperis is denied for the same reasons.
Accordingly, the appeal is hereby DISMISSED.
The mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993. 151 F.R.D. 470
The essence of Mr. Bohnke's claim was that he had been deprived of a property interest without due process of law. The alleged property interest was a right to rehabilitation under Colorado law
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