                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          April 1, 2015

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
MARJORIE A. CREAMER,

             Plaintiff - Appellant,

v.                                                         No. 14-3252
                                                (D.C. No. 5:14-CV-04073-CM-JPO)
A.D. KELLY; CHRIS DAVIS,                                     (D. Kan.)

             Defendants - Appellees.


                             ORDER AND JUDGMENT*


Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.


      Marjorie A. Creamer, proceeding pro se and in forma pauperis (IFP), appeals

the dismissal of her complaint for failure to state a claim and as legally frivolous.

See 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii).1 Under our de novo review, see Vasquez

Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009), we affirm.




*
      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 case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 Cir. R. 32.1.
1
       We afford Ms. Creamer’s pro se materials a liberal construction but do not act
as her advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
      Ms. Creamer brought this action against A.D. Kelly, a veterinarian, and Chris

Davis, a police officer, due to events that transpired after her car ran out of gas.

According to the complaint, Ms. Creamer was with her two dogs when Officer Davis

arrived. He handcuffed her, transported her to Larned State Hospital, and told her

she would never see her dogs again. The dogs were transferred to the custody of

Kelly, who euthanized them. Based on these facts, Ms. Creamer averred that “[t]he

cause of action is the CIVIL RIGHTS action of no probable cause for handcuffing

and confinement, excessive force (i.e. 42 USC section 1983 – ADA 1964, 1991,

4th amendment, K.S.A. 21-6412, K.S.A. 21-4310, K.S.A. 47-1715.” R. at 3.

      A magistrate judge screened the complaint and recommended that it be

dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) for failure to state a claim and

for frivolousness. The magistrate judge reasoned that the complaint lacked factual

development and contained allegations substantially similar to those Ms. Creamer

had pleaded against the same defendants in a previously dismissed suit. As the

magistrate judge saw it, the complaint suffered from the same deficiencies that led to

the prior dismissal. The district court agreed the complaint was frivolous and failed

to state a claim, and also ruled that amending it would be futile because Ms. Creamer

had failed to properly amend her previous complaint despite multiple opportunities to

do so, her present complaint contained even fewer allegations, and its seventy pages

of attachments did nothing to bolster her claims. Thus, the court granted

Ms. Creamer IFP and dismissed the complaint. Ms. Creamer responded with what


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appeared to be a motion for relief from judgment under Fed. R. Civ. P. 60, but the

district court denied the motion, ruling that she failed to provide any basis for

altering or amending the judgment. Ms. Creamer subsequently appealed.

      Under §§ 1915(e)(2)(B)(i) and (ii), a court must screen a complaint filed IFP

and “dismiss the case at any time if the court determines that . . . the action or appeal

is frivolous or malicious; [or] fails to state a claim on which relief may be granted[.]”

“Dismissal of a pro se complaint for failure to state a claim is proper only where it is

obvious that the plaintiff cannot prevail on the facts [she] has alleged and it would be

futile to give [her] an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217

(10th Cir. 2007). A complaint is frivolous where “it lacks an arguable basis either in

law or in fact.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006) (internal

quotation marks omitted).

      Here, Ms. Creamer’s complaint was subject to dismissal under both

alternatives because she relied on the same subject matter to advance claims that a

different district judge already determined should be dismissed, with even less factual

development than before. In her previous suit, Ms. Creamer alleged she ran out gas,

Officer Davis stopped and slammed her against the car, and after she was released

from Larned State Hospital, she discovered her dogs had been euthanized by Kelly.

See Creamer v. Rooks Cnty. Kan., 5:13-cv-4076-RDR-KGS (D. Kan. filed July 16,

2013). The district judge in that case dismissed the claims against Kelly because the

complaint failed to state a plausible claim under 42 U.S.C. § 1983. See id., doc. 11,


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at 4-5 (Sept. 25, 2013). The judge further ruled that the claims against Officer Davis

were deficient because Ms. Creamer failed to make a demand for relief as required

by Fed. R. Civ. P. 8(a)(3) or plead compliance with the notice requirements of

Kan. Stat. Ann. § 12-105b(d). Although the judge repeatedly ordered Ms. Creamer to

cure the deficiencies by properly amending her complaint, she failed to do so.

Consequently, the district judge dismissed the complaint for failure to comply with

the court’s rules and orders. See id., doc. 48, at 6 (Apr. 22, 2014).

      Ms. Creamer’s present complaint still fails to rectify these deficiencies. It fails

to state a claim against Kelly because it alleges nothing indicating how Kelly could

be liable under § 1983. Further, there is nothing that could be construed as a demand

for relief against Officer Davis. Moreover, nothing that Ms. Creamer has filed thus

far suggests she could cure these deficiencies. And because the complaint is

predicated on the same facts as the previously dismissed suit but provides even less

factual development, it is frivolous. Under these circumstances, the district court

correctly dismissed the complaint for failure to state a claim and frivolousness.

      Accordingly, the judgment of the district court is affirmed and any outstanding

requests for relief are denied.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Circuit Judge




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