UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

TOMAS MARS GARCIA, 

 Plaintiff - Appellant, 

v. 

GENE GRABOWSKI; TERRY JAQUES; 

DEAN WILLIAMS; PAULA ALCORN; 

CYNTHIA GIERSDORF; CARL 

STEINKE; KEITH BORDERLON; JOE 

COLPITTS; JOHN AND JANE DOES, 

 Defendants - Appellees. 

No. 24-1042 

(D.C. No. 1:22-CV-01587-LTB-SBP) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

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Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. 

_________________________________ 

Plaintiff Tomas Mars Garcia, a Colorado state prisoner appearing pro se, 

appeals from the district court’s dismissal of the 42 U.S.C. § 1983 civil rights action 

he filed against state correctional officials. Exercising jurisdiction pursuant to 

28 U.S.C. § 1291, we affirm the judgment of the district court. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 19, 2024

Christopher M. Wolpert 

Clerk of Court

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I 

In April 2022, Garcia, who was then an inmate at the Limon Correctional 

Facility (LCF) in Limon, Colorado, filed a pro se complaint in Colorado state court 

against two officials at LCF, the executive director of the Colorado Department of 

Corrections (CDC), and unnamed employees of LCF and CDC. The complaint 

alleged a variety of misdeeds by defendants, including, for example, moving Garcia 

from a minimum custody facility to LCF without justification, embezzlement of his 

prison account funds, and failing to make necessary repairs to the facilities at LCF. 

Garcia alleged, in relevant part, that defendants’ actions and/or negligence violated 

his constitutional rights to freedom of speech and assembly, due process, and to be 

free from cruel and unusual punishment. 

The named defendants removed the case to federal district court and argued 

the case “should be construed as one being brought under 42 U.S.C. § 1983.” 

R. at 9–10. The district court agreed and concluded removal was proper under 

28 U.S.C. § 1441(a). The district court screened the complaint pursuant to 28 U.S.C. 

§ 1915A and concluded it did “not assert any clear claims” and thus failed to 

“comply with Rule 8 of the Federal Rules of Civil Procedure.” Id. at 245. The 

district court ordered Garcia to file an amended complaint on a court-approved 

prisoner complaint form within thirty days. 

Garcia filed an amended complaint on a court-approved prisoner complaint 

form. The amended complaint alleged three claims for relief: (1) that defendants 

charged Garcia excessive fees for double-sided copies of state administrative 

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regulations; (2) that defendants tampered with Garcia’s legal mail by tearing off 

certified mail labels on outgoing envelopes and replacing those labels with priority 

mail labels, and also by improperly weighing Garcia’s outgoing legal mail; and 

(3) that defendants destroyed Garcia’s “family color pictures and alter[ed] the color 

picture to black and white.” Id. at 263. Garcia requested $250,000 in damages for 

each of these claims. 

The magistrate judge screened the amended complaint pursuant to 28 U.S.C. 

§ 1915A and recommended that it be dismissed for a number of reasons. To begin 

with, the magistrate judge concluded that, to the extent the amended complaint 

asserted claims against LCF and CDC employees in their official capacities, those 

claims were subject to dismissal under the Eleventh Amendment. The magistrate 

judge in turn concluded that the first claim in the amended complaint was subject to 

dismissal as frivolous because Garcia did not allege that he needed the copies for any 

specific legal proceeding or case and also did “not complain that his access to the 

courts was unduly hampered because he was charged 50 cents per page” for the 

copies. Id. at 342. As for the second and third claims, both of which related to 

defendants’ handling of Garcia’s mail, the magistrate judge concluded that Garcia’s 

allegations of wrongdoing were “vague and conclusory” and failed “to show that 

Defendants acted in a manner unrelated to a legitimate penological interest, in 

violation of his First Amendment rights.” Id. at 344–45. The magistrate judge 

therefore recommended that those claims be dismissed without prejudice for failure 

to comply with Federal Rule of Civil Procedure 8. 

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After allowing Garcia to file written objections to the magistrate judge’s 

recommendation, the district court reviewed and adopted the recommendation. The 

district court therefore dismissed the first claim in the amended complaint “with 

prejudice as frivolous under 28 U.S.C. § 1915A(b)(1),” and dismissed the second and 

third claims “without prejudice for failing to comply with Fed. R. Civ. P. 8.” Id.

at 398. 

Garcia now appeals. 

II 

Garcia challenges only the district court’s dismissal of the first claim in his 

amended complaint. We review de novo a district court’s dismissal of a claim or 

complaint under 28 U.S.C. § 1915A(b)(1). See Vasquez Arroyo v. Starks, 589 F.3d 

1091, 1094 (10th Cir. 2009). Because Garcia is proceeding pro se, we liberally 

construe his pleadings but “will not act as his advocate.” James v. Wadas, 724 F.3d 

1312, 1315 (10th Cir. 2013). 

Section 1915A(a) requires a district court to review “a complaint in a civil 

action in which a prisoner seeks redress from a governmental entity or officer or 

employee of a governmental entity.” 28 U.S.C. § 1915A(a). Section 1915A(b) in 

turn requires a district court to dismiss the complaint or any portion of it that “is 

frivolous, malicious, or fails to state a claim upon which relief may be granted.” 

28 U.S.C. § 1915A(b)(1). 

In his appellate brief, Garcia essentially repeats the allegations that were 

contained in the first claim of his amended complaint. That claim, as we have noted, 

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alleged that defendants violated Garcia’s First Amendment rights by overcharging 

him for copies of state administrative regulations he requested. Notably, Garcia did 

not allege that he needed the copies for use in connection with any legal proceeding 

or disciplinary hearing. See Requena v. Roberts, 893 F.3d 1195, 1208–09 (10th Cir. 

2018). Nor did Garcia allege that the excessive charges otherwise hampered his 

access to the courts. In short, Garcia failed to tie the alleged overcharging to any 

protected First Amendment activity. We therefore conclude the district court 

appropriately dismissed the claim as frivolous under § 1915A(b)(1). 

III 

The judgment of the district court is affirmed. Garcia’s motion for leave to 

proceed on appeal in forma pauperis is denied. His “Supplemental for Appointment 

of Counsel” is also denied. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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