Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.lin Edward Davis, Sr., Plaintiff-appellant, v. United States of America, Defendant-appellee, 930 F.2d 33 (10th Cir. 1991)

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U.S. Court of Appeals for the Tenth Circuit - 930 F.2d 33 (10th Cir. 1991) Feb. 20, 1991

Before McKAY, JOHN P. MOORE and BRORBY, Circuit Judges.


JOHN P. MOORE, Circuit Judge.

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. Davis filed a pro se Sec. 1983 complaint against the United States based upon conditions he encountered in a county jail while awaiting trial on federal charges. The government filed a motion to dismiss for failure to state a claim based upon the assertion the United States was not a proper party to a Sec. 1983 action. Notwithstanding the validity of that assertion, the district court dismissed the complaint, without prejudice, on procedural grounds.

In denying Mr. Davis permission to appeal in forma pauperis, the court certified the appeal is frivolous and not taken in good faith. A trial court certification of that nature precludes appeal in forma pauperis. 28 U.S.C. § 1915(a).

In order to succeed, Mr. Davis must show both: 1) a financial inability to pay the required filing fees, and 2) the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. See 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S. 438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir. 1962).

It is evident Mr. Davis can make no rational argument on the law or facts in support of the issues raised on appeal. Therefore, the motion for leave to proceed on appeal without prepayment of costs or fees is denied.

The appeal is DISMISSED because no rational argument can be made, and the mandate shall issue forthwith.


This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3