                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 20, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                    TENTH CIRCUIT


 JACOB GAREY, JR.,

          Plaintiff - Appellant,
                                                         No. 09-2218
 v.
                                             (D.C. No. 1:09-CV-00551-RB-WPL)
                                                          (D.N.M.)
 LUPE MARTINEZ MARSHALL, *
 Warden; GARY K. KING, Attorney
 General for the State of New Mexico,

          Defendants - Appellees.


                             ORDER AND JUDGMENT **


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Jacob Garey, Jr. appeals from the district court’s order dismissing his 42

U.S.C. § 1983 complaint as legally frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i) and Federal Rule of Civil Procedure 12(b)(6). For


      *
           Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Lupe
Martinez Marshall is substituted for Anthony Romero as Appellee in this action.
      **
              This Order and Judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1. After examining the appellate
record, this three-judge panel 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 case is therefore ordered submitted without
oral argument.
substantially the same reasons set forth by the district court, we agree that Mr.

Garey’s claims are frivolous, dismiss his appeal, and deny his motion to proceed

in forma pauperis (“IFP”).

I. Background

      Mr. Garey was convicted in New Mexico state court of possession of heroin

following a plea of no contest in 2000. He received a suspended sentence of 18

months and probation. During his term of probation, Mr. Garey was convicted of

heroin possession and tampering with evidence after he pleaded no contest to

these charges. The state court consolidated the two cases for sentencing

purposes, revoked Mr. Garey’s probation, and sentenced him to five years and

279 days of imprisonment, with all but two years suspended. The court also

imposed one year of parole to run concurrently with the suspended portion of the

sentence. Mr. Garey was released early from custody, but his release was

revoked on December 10, 2002. After filing two motions for reconsideration of

the revocation, which were denied, Mr. Garey filed a third motion styled as a

“Motion to Amend Judgment and Sentence of Probation Commitment to

Penitentiary.” The state court dismissed the motion as moot on December 15,

2004, because the parties stipulated that Mr. Garey had been released from

custody on those convictions and had completed his terms of probation and

parole.




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      Thereafter, Mr. Garey unsuccessfully sought state post-conviction relief.

He then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

with the United States District Court for the District of New Mexico on April 23,

2008. The district court dismissed that petition for lack of jurisdiction because

Mr. Garey was no longer in custody for the charges that he sought to challenge.

Mr. Garey appealed that dismissal to this court and requested a certificate of

appealability (“COA”), which was denied. The panel held that, because Mr.

Garey was not in custody on the challenged sentences when he filed his federal

habeas petition, reasonable jurists could not debate the district court’s conclusion

that it lacked jurisdiction to consider the merits of the petition. The panel

therefore denied a COA and dismissed Mr. Garey’s appeal.

      Mr. Garey filed the instant pro se § 1983 complaint on June 2, 2009, in the

District of New Mexico in which he asserted various claims of alleged violations

of his constitutional rights resulting from the state court criminal proceedings.

Specifically, Mr. Garey alleged that: his convictions and sentences constituted

false imprisonment and violated the double jeopardy clause; he was denied the

effective assistance of counsel; and the state court had been prejudiced against

him. Mr. Garey sought money damages for his allegedly unlawful incarceration.

      The district court granted Mr. Garey’s motion for IFP status and assessed

partial payments. However, the court dismissed Mr. Garey’s complaint on

September 9, 2009, holding that he did not have a valid § 1983 claim because (1)


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he never achieved a favorable result in his state court criminal proceedings, and

(2) Mr. Garey’s complaint was barred in any event by the applicable statute of

limitations that would have started to run on the date his allegedly illegal

incarceration ended in 2004. The district court denied Mr. Garey’s motion for

reconsideration on October 6, 2009.

      Mr. Garey appealed. He filed a motion with the district court seeking leave

to proceed IFP. The court denied the motion, concluding that Mr. Garey had

failed to identify the existence of a nonfrivolous argument on appeal. On appeal,

Mr. Garey has filed a second motion for IFP status as well as a motion to remand

the case to the district court.

II. Discussion

      The IFP statute, 28 U.S.C. § 1915, is intended to open federal courts to

indigent litigants. Neitzke v. Williams, 490 U.S. 319, 324 (1989). However,

because 28 U.S.C. § 1915(a) allows indigents to commence lawsuits without

prepayment of fees or costs, and thereby potentially risks abusive litigation,

Congress also provided for the sua sponte dismissal of “frivolous or malicious”

suits under § 1915(e)(2)(B)(i). Neitzke, 490 U.S. at 324 (citing § 1915(d), as this

statutory provision was previously designated). A suit “is frivolous where it lacks

an arguable basis either in law or in fact.” Id. at 325.

      We review a district court’s determination of frivolousness for an abuse of

discretion, but if the frivolousness determination turns on an issue of law, we


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review the dismissal de novo. See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th

Cir. 2006). Although we are not bound to accept Mr. Garey’s factual allegations

as true, they must be weighted in his favor. Denton v. Hernandez, 504 U.S. 25,

32 (1992).

      On appeal, Mr. Garey renews his substantive constitutional claims and

contends that the district court erred in dismissing his complaint. We disagree.

As the district court correctly noted, Mr. Garey’s § 1983 complaint cannot

succeed on its merits because there has been no termination of the challenged

criminal proceedings in Mr. Garey’s favor. See, e.g., Mondragón v. Thompson,

519 F.3d 1078, 1082–83 (10th Cir. 2008); Roth v. Green, 466 F.3d 1179, 1189–90

(10th Cir. 2006); Pierce v. Gilchrist, 359 F.3d 1279, 1294 (10th Cir. 2004). And,

even if Mr. Garey had received a favorable termination prior to his release from

incarceration on the state convictions at issue, his claims would be time-barred by

New Mexico’s three-year statute of limitations. Mondragón, 519 F.3d at 1082.

Accordingly, we agree with the district court that Mr. Garey’s claims are legally

frivolous, and they were properly dismissed. Likewise, Mr. Garey’s reiteration of

his claims on appeal is frivolous and this appeal is dismissed under

§ 1915(e)(2)(B)(i).

      In light of our determination that Mr. Garey’s appeal is frivolous, we

conclude that affording IFP status to him would be inappropriate—he has not

demonstrated “the existence of a reasoned, nonfrivolous argument on the law and


                                         -5-
facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937

F.2d 502, 505 (10th Cir. 1991); cf. Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir.

2008) (granting IFP motion because arguments raised in appeal were not

frivolous). Accordingly, we deny Mr. Garey’s motion for IFP status and direct

him to make full and immediate payment of the outstanding balance of the

appellate filing fees.

III. Conclusion

      For the foregoing reasons, we DISMISS this appeal pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i). Mr. Garey’s motion to proceed without prepayment of

appellate filing fees is DENIED and he is directed to make full and immediate

payment of his outstanding fee balance. We also DENY Mr. Garey’s motion to

remand. Finally, we assess two strikes for purposes of 28 U.S.C. § 1915(g). See

Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.

1999) (“If we dismiss as frivolous the appeal of an action the district court

dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”).



                                       ENTERED FOR THE COURT


                                       Jerome A. Holmes
                                       Circuit Judge




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