Watson vs. James, No. 06-6350 (10th Cir. 2007)
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 27, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court B ARRY WA TSO N , Plaintiff - Appellant, No. 06-6350 v. W .D. Okla. HAROLD M AURICE JAM ES; KEVIN M CCRAY ; RA Y C . ELLIOTT; NA THA N D ILLS; RO BERT BY BEE; M IKE SPEEGLE; JERA L SCOTT DU PY; ALLEN J. W ELCH; JEFFREY B YERS; JEN N IFER RIC HA RD; CA RO LYN L. M ERRITT, (D.C. No. 06-CV-462-R) Defendants - Appellees. OR D ER D ISM ISSING APPLICATION AS FRIVOLOUS Before KELLY, M U RPH Y, and O BRIEN, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Barry W atson, pro se, 1 appeals from the district court s dismissal of his 1 W e liberally construe pro se pleadings and appellate briefs. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). 42 U.S.C. § 1983 complaint on statute of limitations grounds. W e dismiss his frivolous appeal. Background In his complaint, W atson related this series of events. W atson was arrested on April 16, 1998. On November 6, 2000, he proceeded to trial in state court and was represented by a state public defender. On November 29, 2000, he was sentenced after being found guilty of charges arising from the April 1998 incident. Carolyn M erritt, a staff lawyer at the state public defender s office who did not serve as trial counsel, represented W atson on direct appeal. She did not raise assignments of error based on ineffective assistance of trial counsel or trial counsel s alleged conflict of interest. On October 18, 2001, the O klahoma Court of Criminal Appeals affirmed W atson s conviction and sentence. M ore than four years later, on April 25, 2006, W atson filed a civil rights complaint in federal court against his appellate counsel, his trial counsel, the officers involved in his A pril 1998 arrest, and his trial judge. He alleged M erritt conspired with co-workers, a state official or state officials, acting under color of state law, to deny his rights to 1) direct appeal; 2) conflict-free and effective assistance of counsel; 3) due process; and 4) equal protection. He also claimed he was denied equal protection of the law during his direct appeal because of his poverty and race. He sought 1) a jury trial; 2) declaratory and injunctive relief -2- against his trial judge; and 3) monetary damages against the remaining defendants. The magistrate judge concluded W atson s claims were filed well after the two-year statute of statute of limitations had run and recommended dismissing W atson s complaint. Over W atson s objections, the district court adopted the magistrate judge s report and recommendation and dismissed W atson s complaint as untimely. The court left its previous grant of leave to proceed ifp intact but imposed a strike under 28 U.S.C. § 1915(g). W atson has filed a motion for leave to file ifp in this Court even though it is unnecessary to do so. 2 See Fed. R. App. P. 24(a)(5). Under 28 U.S.C. § 1915(e)(2)(B)(i), this Court must dismiss frivolous appeals. W atson s brief fails to present any legal theory or refer to specific facts that could conceivably refute the district court s thoroughly reasoned disposition. 2 W hen a prisoner is granted leave to proceed ifp in the district court that right continues on appeal unless the district court certifies the appeal is not taken in good faith. Fed. R. App. P. 24(a)(3). W atson s continuing ifp status does not relieve him of his obligation to pay filing fees, it merely permits the fees to be paid in installments. Accordingly, he must continue to make payments until the filing fee is paid in full. Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of an appeal does not relieve appellant of obligation to pay appellate filing fee in full). -3- DISM ISSED. 3 ENTERED FOR THE COURT Terrence L. O Brien Circuit Judge 3 This dismissal counts as a strike under § 1915(g). Thus, W atson has accumulated two strikes, one in the district court and one here. See 28 U.S.C. § 1915(g); Jennings v. Natrona County D et. Ctr. M ed. Facility, 175 F.3d 775, 780 (10th Cir. 1999). -4-
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