                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 24, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 TEODOR MARIAN,

               Plaintiff-Appellant,                       No. 11-2251
          v.                                              (D. of N.M.)
 SOCORRO ELECTRIC                            (D.C. No. 1:11-CV-00970-RB-WDS)
 COOPERATIVE (SEC) OF NEW
 MEXICO; LEOPOLDO PINEDA, in
 his individual capacity as General
 Manager at SEC; KATY TORRES, in
 her individual capacity as Office
 Manager/Accountant at SEC; EILEEN
 LATASSA, in her individual capacity
 as Records Custodian at SEC;
 MELISSA AMARO, in her individual
 capacity as Collections Clerk at SEC;
 NEW MEXICO HUMAN SERVICES
 DEPARTMENT (NMHSD);
 MARILYN MARTINEZ, in her
 individual capacity as Quality
 Improvement Section Manager,
 NMHSD; MELODY HODGE, in her
 individual capacity as Clerk of Civil
 Rights Dep’t, NMHSD; LORETTA
 WILLIAMS, in her individual capacity
 as LIHEAP Manager, NMHSD,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
                                                                        (continued...)
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Teodor Marian appeals the dismissal of his pro se suit against Socorro

Electric Cooperative of New Mexico and the denial of his application to proceed

in forma pauperis.

      Socorro turned off the electricity to Marian’s summer home in New Mexico

for failure to pay his electric bill, and Marian sued Socorro; a number of the

company’s employees; the New Mexico Housing Department; employees of that

department; and employees of the federal Low Income Home Energy Assistance

Program: He alleges violations of: (1) the Civil Rights Act of 1964; (2) the

Freedom of Information Act; (3) 42 U.S.C. § 8624, governing the Low Income

Home Energy Assistance Program; (4) the Fourteenth Amendment of the United

States Constitution; and (5) the New Mexico Constitution.

      The district court denied Marian’s application and his claims, finding that

he had failed to allege a federal claim. 1 We affirm.

      *
        (...continued)
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
          Marian argues that we have diversity jurisdiction over his state law
                                                                        (continued...)

                                          -2-
      “We review de novo the district court’s decision to dismiss an IFP

complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v.

Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). “In determining whether a

dismissal is proper, we must accept the allegations of the complaint as true and

construe those allegations, and any reasonable inferences that might be drawn

from them, in the light most favorable to the plaintiff.” Gaines v. Stenseng, 292

F.3d 1222, 1224 (10th Cir. 2002). “[I]n order to succeed on a motion to proceed

IFP, the movant must show a financial inability to pay the required filing fees, as

well as the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised in the action.” Lister v. Dep’t. of the Treasury, 408

F.3d 1309, 1312 (10th Cir. 2005).

      On appeal, Marin argues the district court violated his right to due process

and followed improper procedures in undertaking a review of his complaint “sua

sponte” to determine whether it was frivolous. He appears to be confusing the

procedural rules governing the imposition of sanctions for frivolous complaints

under Federal Rule of Appellate Procedure 38 with the procedural rules governing

motions to proceed IFP under 28 U.S.C. § 1915(e)(2)(B)(ii). A motion to proceed

IFP requires the court to determine “the existence of a reasoned, nonfrivolous

      1
        (...continued)
contract claims because he is a citizen of California and Socorro is a New Mexico
utility cooperative. The amount in controversy in this suit, however, is far under
the required $75,000, which is more than the New Mexico property is worth and
far more than Marian owes on his electric bill. 28 U.S.C. § 1332(a).

                                         -3-
argument on the law and facts in support of the issues raised in the action.”

Lister, 408 F.3d at 1312. The district court’s inquiry was therefore proper.

      After conducting our own review of the record, we agree with the district

court for substantially the same reasons. Marian has no valid claim based on his

California residency or based on any of the statutes identified in his complaint.

Marian v. Socorro Electric Cooperative of New Mexico, No. 11cv970 RB/WDS

(D. New Mexico, Nov. 29, 2011).

      The Appellant’s motion to proceed in forma pauperis is DENIED. The

Appellant’s Motion for recusal of Judge Robert C. Brack and Appellant’s Motion

to Recall the Improper Final Judgment are likewise DENIED.

                                                    Entered for the Court,

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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