                                                                            FILE D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                      U N IT E D STA T E S C O U R T O F A PPE A L S June 19, 2009
                                                                    Elisabeth A. Shumaker
                                    T E N T H C IR C U IT               Clerk of Court



 JOEL W . ALLEN ,

          Plaintiff - Appellant ,
                                                            No. 09-7027
 v.
                                                    (D.C. No. 6:08-CV-334-FHS )
                                                            ( E.D. Okla.)
 RUDY BRIGGS, Sheriff ,

          Defendant - Appellee.



 JOEL W . ALLEN,

          Plaintiff - Appellant,
 v.                                                         No. 09-7032
                                                    (D.C. No. 6:09-CV-121-FHS)
 JOE PAUL ROBERTSON, Executor                               (E.D. Okla.)
 of Estate of Lloyd Payton,

          Defendant - Appellee.



                              O R D E R A N D JU D G M E N T *


Before T A C H A , T Y M K O V IC H , and G O R SU C H , Circuit Judges.




      *
         After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
      Joel W . Allen was convicted by an Oklahoma state court of rape,

kidnapping for extortion, and forcible sodomy in 1990. He was released from

prison in 1998. The record before us is unclear, but it appears likely that he is

currently on probation. As a pro se litigant, M r. Allen brought these two lawsuits

in forma pauperis challenging various aspects of the trial that led to his

conviction. The district court dismissed them as frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i), and M r. Allen appeals. W e have consolidated the two cases

for decision.

      Proceeding in forma pauperis in federal court is a privilege, not a right.

The district court has power to police abuses of that privilege by dismissing

“frivolous” claims brought without payment of the filing fee. 28 U.S.C.

§ 1915(e)(2)(B)(i). A complaint is frivolous under § 1915 if it “lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

This standard means much more than just merely wrong. The district court may

not dismiss a claim as frivolous just because it would be dismissed under Rule

12(b)(6), id. at 328, or because it finds the plaintiff’s factual allegations

“unlikely,” Denton v. Hernandez, 504 U.S. 25, 33 (1992). It must be the kind of

suit that “paying litigants generally do not initiate because of the costs of bringing

suit and because of the threat of sanctions for bringing vexatious suits under

Federal Rule of Civil Procedure 11.” Neitzke, 490 U.S. at 327. Thus, a legally



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frivolous claim rests on “an indisputably meritless legal theory,” such as a claim

that a non-existent legal interest has been infringed. Id. A claim is factually

frivolous if it depicts “fantastic or delusional scenarios,” id. at 328, where “the

facts alleged rise to the level of the irrational or the wholly incredible,” Denton,

504 U.S. at 33.

      W e review the district court dismissal of an in forma pauperis complaint on

grounds of frivolousness for abuse of discretion. Id. at 34. In deciding whether

an abuse of discretion has occurred, we are instructed to consider “whether the

plaintiff was proceeding pro se, whether the [district] court inappropriately

resolved genuine issues of disputed fact, whether the court applied erroneous

legal conclusions, whether the court has provided a statement explaining the

dismissal that facilitates intelligent appellate review, and whether the dismissal

was with or without prejudice.” Id. (internal citations and quotations omitted).

M r. Allen is a pro se litigant, which requires us to construe his pleadings and

other papers generously. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th

Cir. 2007). W e turn now to the two pending appeals.

                                         ***

      W e begin with No. 09-7032. In this case, M r. Allen alleges that his trial

counsel provided ineffective assistance of counsel. But rather than sue his

custodian or at least some other representative of the state, M r. Allen has sued his



                                         -3-
trial lawyers, Joe Paul Robertson and Lloyd Payton (actually, M r. Payton’s

estate). He alleges that they failed to contest the government’s case in various

ways, that “they ‘sold him out,’ and that is why he got convicted.” No. 09-7032,

D. Ct. Order at 3. He seeks relief for this alleged conduct under 42 U.S.C.

§ 1983, 42 U.S.C. § 1985, and by writ of habeas corpus. The district court

dismissed this action as frivolous. First, it found that habeas corpus was an

inappropriate remedy because, it concluded, M r. Allen is not in custody. No. 09-

7032, D. Ct. Order at 2. It also found that M r. Allen failed to explain his claims,

which were unconnected to any “recognizable legal theory of recovery.” Id. His

factual allegations were “vague and at times completely incoherent,” as well as

“fanciful, fantastic, and delusional.” Id.

      W e agree with the district court that M r. Allen’s suit against his lawyers is

frivolous. Among many other problems, 42 U.S.C. § 1983 only authorizes relief

against those who violate a person’s civil rights while acting under color of state

law. West v. Atkins, 487 U.S. 42, 48 (1988). Defense lawyers do not even

arguably fit this description. Indeed, the Supreme Court has held that § 1983 may

not even be used to sue defense attorneys who are state employees; “a public

defender does not act under color of state law when performing a lawyer’s

traditional functions as counsel to a defendant in a criminal proceeding.” Polk

County v. Dodson, 454 U.S. 312, 325 (1981) (dismissing § 1983 suit against



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public defender). Neither can M r. Allen fare better under § 1985. That statute

permits suits against those who conspire to deprive others of their civil rights.

Unlike § 1983, it does not require a showing of state action because it was

enacted pursuant to the Congress’s authority under the Thirteenth Amendment.

Griffin v. Breckenridge, 403 U.S. 88, 104-05 (1971). But because its object is to

punish the “deprivation of the equal enjoyment of rights secured by the law to

all,” id. at 102 (emphasis supplied), section 1985 does require “that there must be

some racial, or perhaps otherwise class-based, invidiously discriminatory animus

behind the conspirators’ action,” id.; see also Tilton v. Richardson, 6 F.3d 683,

686 (10th Cir. 1993). M r. Allen has no arguable basis for imputing invidious

discrimination to his attorneys’ alleged ineffectiveness. He claims only that they

“sold him out,” not that they conspired to deprive of him the equal protection of

the laws. The district court was within its authority to dismiss these claims as

frivolous.

      Then there is the matter of habeas corpus. M r. Allen’s complaint lists

habeas corpus among the many remedies he seeks against his attorneys. Because

he is in custody, if at all, pursuant to the judgment of a state court, M r. Allen

cannot appeal the district court’s denial of habeas relief without a certificate of

appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue unless

the applicant makes “a substantial showing of the denial of a constitutional right.”



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28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must demonstrate

that “reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

M cDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). W here the district court

dismisses a habeas petition on procedural grounds, as it did in this case, we may

issue a COA only if “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Id.

      Concededly, one reason given by the district court for rejecting the habeas

application may be wrong. Though the district court concluded that habeas was

inappropriate because M r. Allen is not in custody, No. 09-7032, D. Ct. Op. at 2, it

appears from the record in the related proceeding (pending before the same

district judge) that M r. Allen may be on probation. The record shows that M r.

Allen was originally sentenced to a term of at least forty years in prison (which

are not yet up), No. 09-7027, R. vol. I, at 40, and that he was released to

probation in 1998, id. at 33. The Supreme Court has held that a paroled prisoner

is still “in custody” for purposes of habeas corpus jurisdiction because he is

subject to significant restraints on his liberty not shared by the general public.

M aleng v. Cook, 490 U.S. 488, 491 (1989); Jones v. Cunningham, 371 U.S. 236

(1963).



                                         -6-
      However, we think the COA must nevertheless be denied because M r.

Allen’s habeas petition remains frivolous as a matter of law. W hether or not M r.

Allen is in custody, he is certainly not in his defense attorneys’ custody –

particularly given that one of those defense attorneys is apparently now deceased.

Generally, the proper respondent of a habeas petition is the person having

“immediate custody of the party detained, with the power to produce the body of

such party before the court or judge, [so] that he may be liberated if no sufficient

reason is shown to the contrary.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)

(quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)). This immediate custodian

is invariably an official of the government, not a private person. W e do not think

it arguable that M r. Allen’s defense attorneys, much less his attorney’s estate, are

holding him “in custody in violation of the Constitution or laws or treaties of the

United States,” 28 U.S.C. § 2254(a), or that they could produce his body and

answer for the legality of his detention. W e do not suggest that every habeas

petition that names the wrong respondent must or can be dismissed as frivolous;

only those, like this one, whose choice of respondent “lacks an arguable basis

either in law or in fact.” Neitzke, 490 U.S. at 325; see also Billa v. United States,

1992 W L 73491 (D.D.C. 1992) (unpublished) (dismissing as frivolous habeas

petition not brought against petitioner’s immediate custodian). Because the

habeas petition was undoubtedly frivolous, the COA will be denied.



                                         -7-
                                        ***

      W e turn now to M r. Allen’s other appeal, No. 09-7027. This lawsuit also

concerns M r. Allen’s criminal trial. M r. Allen first sued two defendants, Lynette

Lee and Dwight Adams, alleging that they destroyed potentially exculpatory

evidence in their custody that would have allowed famed O.J. Simpson defense

attorney Barry Scheck to exonerate M r. Allen. No. 09-7027, R. vol. I, at 10. It is

unclear from the record whether M r. Adams was ever served with process in this

case, but M s. Lee appeared and moved to dismiss under Rule 12(b)(6). The

district court denied that motion in order to allow M r. Allen to amend his

complaint. But the amended complaint did not name either M s. Lee or M r.

Adams as defendants, so the district court dismissed them from the lawsuit. No.

09-7027, R. vol. I, at 1-2. Instead, the Amended Complaint names Sheriff Rudy

Briggs as the sole defendant. It alleges that Sheriff Briggs had an affair with M r.

Allen’s wife, and that the two conspired to frame M r. Allen for the alleged rape.

Specifically, M r. Allen claims that his wife allowed Sheriff Briggs to obtain a

pair of her underwear containing M r. Allen’s DNA, and that the Sheriff then used

that DNA to implicate M r. Allen. Like his lawsuit against his attorneys, this

action seeks relief under §§ 1983 and 1985, as well as a writ of habeas corpus.

And like the other lawsuit, the district court dismissed this action as frivolous.




                                         -8-
      Unfortunately, M r. Allen’s brief on appeal is inadequate to permit us to

consider most of his claims. Because he is a pro se litigant, M r. Allen filed Form

A-12 in lieu of a formal brief on appeal. This form runs five pages, including the

cover sheet and the certificate of service. It asks a pro se appellant to answer

nine questions about his appeal. M r. Allen gave answers to only three of these

questions, and those answers were almost entirely unresponsive. Though his

signature appears at the bottom of page 4 of the form, M r. Allen left all six

questions on that page blank. These questions ask the appellant to identify the

specific errors committed by the district court. No. 09-7027, Br. at 4. M r. Allen

also declined to tell us what issues he presents on appeal. Id. at 3. Instead, M r.

Allen wrote: “I’m not able to out litigate these people, so I’m asking you to

review all the records, all the way back to the trial, the trial judge made a lot of

mistakes – in records & appeal brief.” Id. at 2. W hen asked what argument and

authorities he presents in support of his appeal, he responded, “Proceed without

due to my mental illness and anxiety getting worse, so please help and proce[ed]

with evidence you have access to[].” Id. at 3.

      M r. Allen’s exhortation to us to scour the record – not only of this

proceeding, but of other proceedings before other courts – in search of error is

beyond what our rules permit. W e have repeatedly said that while pro se

litigants’ pleadings will be construed solicitously, they must “follow the same



                                          -9-
rules of procedure that govern other litigants.” Garrett v. Selby Connor M addux

& Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Nielsen v. Price, 17 F.3d

1276, 1277 (10th Cir. 1994)). W hile we can excuse a pro se party’s “‘failure to

cite proper legal authority, his confusion of various legal theories, his poor syntax

and sentence construction, or his unfamiliarity with pleading requirements,’ the

court cannot take on the responsibility of serving as the litigant’s attorney in

constructing arguments or searching the record.” Id. (quoting Hall v. Belmon,

935 F.2d 1106, 1110 (10th Cir. 1991)); see also In re Antrobus, 563 F.3d 1092,

1099 (10th Cir. 2009) (“Under our rules we are not permitted to invent arguments

even for pro se litigants.”). A pro se brief “must contain . . . more than a

generalized assertion of error, with citations to supporting authority.” Garrett,

425 F.3d at 841 (internal quotation omitted).

      The only item in M r. Allen’s brief that could be considered argument for

reversal is his statement that “Briggs tampered and destroyed evidence,” which

(along with a list of other allegations having nothing to do with the defendant in

this case) led to a wrongful conviction. No. 09-7027, Br. at 2. This was among

the many allegations the district court found to be frivolous, and we could not say

that this was an abuse of the court’s considerable discretion.

      The Supreme Court has told us that district courts are in the best position to

judge the frivolousness of factual allegations. Section 1915 confers on them “the



                                         - 10 -
unusual power to pierce the veil of the complaint’s factual allegations and dismiss

those claims whose factual contentions are clearly baseless.” Denton, 504 U.S. at

32 (quotation omitted). By itself, there is perhaps nothing obviously incredible

about the allegation that an investigating officer tampered with evidence in a

criminal case. But in the context of M r. Allen’s “laundry list” of conspiracy

theories of wrongdoing, see No. 09-7027, D. Ct. Order at 2-3, we think the

district court was within its rights to conclude that “[M r. Allen’s] complaint is

nothing more than inflammatory rhetoric.” Id. at 3. The court noted that the

complaint was “devoid of any factual data linking [Briggs] to [M r. Allen’s]

perceived persecution, much less to any recognizable legal theory of recovery,”

and concluded that each of its allegations was “fanciful, fantastic, and

delusional.” Id. This conclusion was certainly not “an arbitrary, capricious,

whimsical, or manifestly unreasonable judgment” amounting to an abuse of

discretion. Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th

Cir. 2009) (quotation omitted). The district court’s dismissal of M r. Allen’s

complaint is therefore affirmed. Because reasonable jurists could not debate

whether the district court abused its discretion, to the extent M r. Allen’s lawsuit

against Sheriff Briggs is a petition for habeas corpus, the COA needed to appeal

the dismissal of that petition is denied.

                                            ***



                                            - 11 -
      In both cases decided today, our mandate is the same. To the extent M r.

Allen seeks a writ of habeas corpus in each case, we deny his application for a

COA and dismiss the appeal in part. As for what remains, we affirm the district

court’s judgment. M r. Allen’s pending motion to supplement the record on appeal

is denied.

                                                ENTERED FOR THE COURT




                                                Neil M . Gorsuch
                                                Circuit Judge




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