Andrew Walker, Plaintiff-appellant, v. William P. Barr and (nfn) Gallegos, Lieutenant, Defendants-appellees, 968 F.2d 22 (10th Cir. 1992)

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US Court of Appeals for the Tenth Circuit - 968 F.2d 22 (10th Cir. 1992) May 29, 1992



SEYMOUR, 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.

This matter is before the court on plaintiff Andrew Walker's motion for leave to proceed on appeal without prepayment of costs or fees. In order to succeed on his motion, Mr. Walker 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).

Mr. Walker filed this action on October 30, 1991, complaining about the taking of his property on December 16, 1988. The district court construed the complaint as a Bivens action and dismissed because Mr. Walker had allegedly filed a substantially similar claim in an earlier case which was still pending and, alternatively, because this current action is barred by the Kansas two-year statute of limitation.

We cannot tell from this record whether this action is substantially similar to an earlier action. Nevertheless, the district court was correct in dismissing on the alternative basis of the statute of limitations. Under Kansas law, Mr. Walker was required to bring the present action within two years of December 16, 1988, the date on which he lost his property. See Kan.Stat.Ann. § 513(a) (4) (1985); Wilson v. Garcia, 471 U.S. 261 (1985); Pike v. City of Mission, 731 F.2d 655, 658 (10th Cir. 1984).

Accordingly, we conclude that Mr. Walker can make no rational argument on the law or facts in support of the issues raised on appeal, which is required in order to proceed in forma pauperis. Therefore, the motion for leave to proceed on appeal without prepayment of costs or fees is denied.

It is further ordered as follows:

1. The filing fee is waived;

2. The appeal is DISMISSED because no rational argument can be made; and

3. 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