Adams v. People of the State of Colorado, (10th Cir. 1999)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY RENARD ADAMS,

Plaintiff-Appellant,

v.



PEOPLE OF THE STATE OF

COLORADO, individually,

corporately 1 to 99; JOHN DOE;

ELLIOTT POWERS; DONITA B.

ROLLE-JACKSON; LAUREN

BYNUM-JENKINS, Conservators and

Attorneys; ROBERT BAILEY,

Defendants-Appellees.

No. 98-1330

(D. Colorado)

(D.C. No. 98-D-1251)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before SEYMOUR, Chief Judge, BALDOCK and

HENRY, Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

Plaintiff Gary Renard Adams, a state prisoner appearing pro se, appeals the

district court's dismissal of his 42 U.S.C. § 1983 civil rights complaint as legally

frivolous under 28 U.S.C. § 1915(e)(2)(B) . We affirm.
name="txt1a">(1)

Mr. Adams claimed below that the court-appointed attorneys, conservator,

and guardian ad litem for his deceased aunt and uncle mismanaged an estate to

which he was sole heir. Since Mr. Adams did not allege any facts to support a

section 1983 federal constitutional violation of his civil rights, nor show in any

way that the attorneys, conservator or guardian were acting under color of state

law, the district court dismissed the claims as frivolous. On appeal, Mr. Adams

asserts to the contrary that the actors did act under color of state law, and

introduces a new argument that a state probate trial error violated his Fifth,

Seventh and Fourteenth Amendment rights.

We review a district court's dismissal of a complaint under section

1915(e)(2)(B) for an abuse of discretion, see Schlicher v. Thomas, 111 F.3d 777,

779 (10th Cir.1997). Under section 1915(e)(2)(B), a district court may sua

sponte dismiss an in forma pauperis action that is frivolous, lacking factual or

legal merit. See 28 U.S.C. § 1915(e)(2)(B). After reviewing the record, we

agree

that despite the wide latitude given pro se parties, Mr. Adams' district court

allegations failed to state any facts that would support a federal constitutional

challenge. In addition, a successful section 1983 challenge requires the actors to

be acting under color of state law. 42 U.S.C. § 1983. Unfortunately for Mr.

Adams, his mere assertions that the actors in his probate claim were so acting

cannot refute our holding in Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir.

1986) (per curiam), that court-appointed representatives such as attorneys or

guardian ad litem are not acting under color of state law. Id. The

district court

did not abuse its discretion in dismissing Mr. Adams' complaint as legally

frivolous.

As for Mr. Adams' newly raised claims of state probate trial error, we

decline to consider issues raised for the first time on appeal. See

Tele-Communications, Inc. v. Commissioner of Internal Revenue, 104 F.3d 1229,

1232-33 (10th Cir.1997).

We remind Mr. Adams that a prisoner may not "bring a civil action or

appeal a judgment in a civil action or proceeding under this section [without full

advance payment of the filing fee] if the prisoner has, on 3 or more prior

occasions, while incarcerated or detained in any facility, brought an action or

appeal in a court of the United States that was dismissed on the grounds that it is

frivolous, malicious, or fails to state a claim upon which relief may be granted,

unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. 1915(g). This is known as the three-strike rule, see Jennings v. Natrona

Cty. Detention Center, No. 98-8032, 1999 WL 248634, *2 (10th Cir. April 20,

1999), which denies a prisoner in forma pauperis status after he has three

qualifying dismissals. Once we affirm as frivolous an action dismissed by the

district court as frivolous, the plaintiff has two strikes against him. Id. at *4.

Mr. Adams now falls in that category.

Under section 1915(e)(2)(B)(i), if a court determines that an action or

appeal is frivolous, "the court shall dismiss the case." Accordingly, this appeal is

DISMISSED.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, or 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 10th Cir. R. 36.3.

1. We deny Mr. Adam's Supplemental

Motion for Appointment of Counsel.

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