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

                             FOR THE TENTH CIRCUIT                            May 19, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 MARKEITH D. TUCKER,

       Plaintiff - Appellant,

 v.                                                          No. 20-7003
                                                   (D.C. No. 6:19-CV-00247-RAW)
 UNITED STATES COURT OF APPEALS                              (E.D. Okla.)
 FOR THE TENTH CIRCUIT; UNITED
 STATES DISTRICT COURT FOR THE
 WESTERN DISTRICT OF OKLAHOMA,

       Defendants - Appellees.

 –––––––––––––––––––––––––––––––––––

 MARKEITH D. TUCKER,

       Plaintiff - Appellant,

 v.                                                          No. 20-7004
                                                   (D.C. No. 6:19-CV-00295-RAW)
 UNITED STATES DISTRICT COURT                                (E.D. Okla.)
 FOR THE WESTERN DISTRICT OF
 OKLAHOMA; CARMELITA REEDER
 SHINN, Court Clerk OKWD; TIMOTHY
 D. DEGIUSTI, US District Judge, OKWD

       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         This order and judgment is not binding precedent, except under the doctrines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 Cir. R. 32.1.
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
                   _________________________________

       Plaintiff-Appellant Markeith D. Tucker, proceeding pro se1 and in forma

pauperis, appeals from two orders entered in separate cases by the same judge in the

Eastern District of Oklahoma. In both orders, the district court sua sponte dismissed

with prejudice Tucker’s two complaints, finding that they are frivolous, fail to state a

claim upon which relief can be granted, and seek relief from defendants who are

immune from liability. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

       At Tucker’s request, the district court authorized Tucker to commence his

lawsuits without paying the concomitant fees. But, because Tucker proceeds in forma

pauperis under 28 U.S.C. § 1915(a)(1), his complaints are subject to that statute’s

screening requirement. Section 1915(e)(2)(B) requires that the district court dismiss a

case at any time if “the action . . . is frivolous or malicious[,] . . . fails to state a claim

on which relief may be granted[,] or . . . seeks monetary relief against a defendant

who is immune from such relief.” When a “frivolousness determination turns on an

issue of law,” as here, we review de novo. Fogle v. Pierson, 435 F.3d 1252, 1259

(10th Cir. 2006) (citing Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003)).

We also review de novo the court’s determination that the complaints fail to state a

claim upon which relief could be granted and pursue defendants entitled to immunity.


       1
         Because of Tucker’s pro se status, we liberally construe his filings but stop
short of serving as his advocate or crafting arguments on his behalf. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (citing Ledbetter v. City of Topeka,
318 F.3d 1183, 1187–88 (10th Cir. 2003); Ogden v. San Juan Cty., 32 F.3d 452, 455
(10th Cir. 1994)).
                                               2
See Syrus v. Nat’l Basketball Ass’n, No. 19-6096, 2019 WL 7938555, at *2 (10th Cir.

2019) (unpublished) (citing Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007);

Snell v. Tunnell, 920 F.2d 673, 675 (10th Cir. 1990)).

      A complaint is frivolous under § 1915 when “it lacks an arguable basis either

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). And to comply with

pleading standards, the complaint must provide “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). Neither of Tucker’s complaints passes these tests.

      The complaint in the first case states in full:

      I have file[d] multiple Civil Lawsuits with UNITED STATES DISTRICT
      COURT WESTERN DISTRICT OF Oklahoma for further Racial Profiling,
      Discriminating towards me as Plaintiff and for Officials to do a wid[e]
      Pattern and Practice as well as Deprivation of Rights Under Color of Law.

No. 20-7003 R. at 3. Based on internet printouts attached to his complaint and his

appellate brief, it appears Tucker is attempting to sue under 34 U.S.C. § 12601

(formerly 42 U.S.C. § 14141) and 18 U.S.C. §§ 241–242. Such claims lack a basis in

the law because these statutes do not afford Tucker a private right of action. Section

12601 affords enforcement only to the Attorney General. See 34 U.S.C. § 12601(b)

(“Whenever the Attorney General has reasonable cause to believe that a violation of

paragraph [(a)] has occurred, the Attorney General, for or in the name of the United

States, may in a civil action obtain appropriate equitable and declaratory relief to

eliminate the pattern or practice.”). Sections 241 and 242 are criminal statutes that do

not provide for private civil causes of action. See Linda R.S. v. Richard D., 410 U.S.


                                            3
614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the

prosecution or nonprosecution of another.”); Henry v. Albuquerque Police Dep’t, 49

F. App’x 272, 273 (10th Cir. 2002) (unpublished) (recognizing that it is “settled law”

that §§ 241 and 242, “like other such statutes, do not provide for a private civil cause

of action” (citations omitted)). Thus, with no “arguable claim for relief” this

complaint is frivolous and fails to state a claim, as the district court correctly

concluded. McKinney v. Okla. Dep’t of Human Servs., 925 F.2d 363, 365 (10th Cir.

1991) (emphasis omitted).

       The district court also concluded the complaint in the second case is frivolous

and fails to state a claim. This second complaint, while a little meatier, simply

piggybacks the first (filed a month before). As “background,” Tucker asserts that he

“was Discriminated on by Social Security, ‘SWOSU’ and State Courts along with

Courts where I filed my Civil Class Action Lawsuits Complaints.” No. 20-7004 R. at

4. He purports to make three claims: (1) “I filed my Civil Suit complaints just for

U.S. DIST. COURT WESTERN DIST. OKLA to conduct a Conspiracy Against my

Rights; Title 18, U.S.C., Section 241”; (2) “The[y] violated Title 18, U.S.C., Section

242-Deprivation of Rights Under Color of Law and did a bad Pattern and Practice

under Title 42, U.S.C. Section 14141”; and (3) “I was lead [sic] on by Courts as they

where [sic] going to subside dispute, just to be ignorant a further violated.” Id. Thus,

this second complaint premises its claims on the same statutes as the first, meaning it

is also frivolous and fails to state a claim because these statutes do not afford Tucker

a private right of action.

                                             4
      Finally, the district court also correctly determined that Tucker sued immune

defendants in both cases. Tucker attempts to sue federal courts, naming the “United

States District Court Western District of Oklahoma” in both complaints and the

“United States Court of Appeals for Tenth Circuit” in the first complaint. No. 20-

7003 R. at 3; No. 20-7004 R. at 3. Tucker is thus attempting to sue the federal

government. But the federal government has sovereign immunity. And, “[a]bsent a

waiver, sovereign immunity shields the Federal Government and its agencies from

suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citation omitted). No waiver exists

here, so these Defendants are immune from suit. 2

      We accordingly affirm the district court’s orders dismissing3 the complaints as




      2
        In his second complaint, though not in his caption, Tucker lists a court clerk
and a district judge in the Western District of Oklahoma as defendants but does not
explain what they did to harm him. Without knowing why Tucker is suing these
Defendants, we cannot assess whether they are entitled to immunity.
      3
         The district court dismissed both complaints with prejudice. We agree this
was appropriate because both complaints fail to state a claim and granting Tucker
leave to amend either would be futile. See Brereton v. Bountiful City Corp., 434 F.3d
1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a
complaint fails to state a claim under [Federal Rule of Civil Procedure] 12(b)(6) and
granting leave to amend would be futile.” (citation omitted)); Curley v. Perry, 246
F.3d 1278, 1282–83 (10th Cir. 2001) (noting that “the standard for dismissal for
failure to state a claim is essentially the same under” § 1915(e)(2)(B)(ii) and Rule
12(b)(6) and affirming dismissal with prejudice under both when no amendment
could cure the complaint’s defect (citations omitted)).

                                           5
frivolous, failing to state a claim, and seeking relief from immune defendants. We

deny Tucker’s motion to compel as moot.


                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




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