Aureliano Aguilar, Plaintiff-appellant, v. Jerry Johnson, Warden; Stephen Kaiser; Captain Hutchens;captain Mckenna; D. Christian, Lt.; Jim Keith,sgt.; Brad Jones, Sgt.; J.p. Harkins,defendants-appellees, 5 F.3d 545 (10th Cir. 1993)Annotate this Case
Sept. 23, 1993
Before SEYMOUR, ANDERSON, 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.
This matter is before the court on Plaintiff-Appellant Aureliano Aguilar's motion for leave to proceed on appeal without prepayment of costs or fees.
In order to succeed on his motion, plaintiff must show both a financial inability to pay the required filing fees and 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).
Plaintiff-appellant Aguilar brought this 42 U.S.C.1983 action against officials of the Oklahoma Department of Corrections, alleging that they had engaged in a pattern of harassment of him in violation of his constitutional rights because his wife has filed a lawsuit against several corrections officers. The matter was referred to a Magistrate Judge, who recommended dismissal of the action. Ultimately, on January 20, 1993, the district court adopted the Magistrate Judge's recommendation and dismissed the action, entering an amended judgment reflecting the district court's review of Aguilar's objections to the Magistrate Judge's recommendations.2 On appeal from that order, Aguilar raises no issues of substance, but merely expresses his disagreement with the district court's ruling.
We conclude that Aguilar has failed to make a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. Aguilar does not assert retaliation based upon a violation of his own constitutional rights; rather, he alleges retaliation because of his wife's exercise of her constitutional rights. His section 1983 claim therefore fails. See Trujillo v. Board of County Comm'rs, 768 F.2d 1186, 1187 (10th Cir. 1985); Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S. 826 (1982).
Accordingly, Aguilar's motion for leave to proceed on appeal without prepayment of costs or fees is DENIED. The appeal is DISMISSED. 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
The amended judgment was necessitated by the fact that Aguilar's timely filed objections to the Magistrate Judge's recommendation did not become a part of the court file until after the date on which the district court initially entered an order adopting the recommendation and dismissing the case. Aguilar then filed a motion to alter or amend the judgment. The district court granted the motion to amend the judgment "only so far as an amended judgment will be entered that reflects the Court's review of plaintiff's objections" and again adopted the Magistrate Judge's recommendation and dismissed the case