UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DWAUNE J. GRAVLEY, 

 Plaintiff-Appellant, 

v. 

LARRY HUNTER, CEO of Direct 

TV; RANDALL STEPHENSON, 

CEO of AT&T; JEFFREY ZUCKER, 

“Jeff” President of CNN; PHILIP T. 

GRIFFIN, “Phil” President of 

MSNBC; RUPERT MURDOCH, 

CEO of Fox News; CHRIS 

MCCARTHY, President of VH1; 

GEORGE BODENHEIMER, CEO, 

and Acting Chairman of ESPN; 

BRIAN ROAPP, CEO of NFL 

Networks; BERNARDO GOMEZ, 

Co-CEO of Televisa; ALFONSO DE 

ANGOITIA, Co-CEO of Televisa; 

SEAN L. ATKINS, President of 

MTV; STEPHEN B. BURKE, CEO 

of NBC; BEN SHERWOOD, CEO of 

ABC; JOHN K. MARTIN, CEO and 

Current Chairman of TNT; JOHN 

LANDGRAF, CEO of FX Networks; 

PAUL RYAN, House Speaker; and 

ALL OTHER CEO'S, of the 

unnamed channels provided by 

Prison Admax, Florence Colorado, 

 Defendants-Appellees. 

No. 18-1246 

(D.C. No. 1:18-CV-00171-LTB) 

(D. Colo.) 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 18, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. 

_________________________________ 

In this suit, Mr. Dwaune J. Gravley alleges that television networks 

and public figures are secretly “branding” him as a sexual predator. 

According to Mr. Gravley, he discovered this branding by deciphering a 

secret code used on television. The district court sua sponte dismissed the 

suit as frivolous, leading Mr. Gravley to appeal and move for leave to 

proceed in forma pauperis. We dismiss the appeal and deny the motion. 

Because Mr. Gravley proceeded in forma pauperis in district court, 

the court must dismiss the suit or the appeal if it is frivolous. 28 U.S.C. 

§ 1915(e)(2)(B)(i). A suit or appeal is frivolous if it “lacks an arguable 

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 

(1989). 

 

* Mr. Gravley requests oral argument, but it would not materially aid 

in our decision. We are therefore deciding the appeal based on Mr. 

Gravley’s appeal brief and the record. See Fed. R. App. P. 34(a)(2); Tenth 

Cir. R. 34.1(G). 

This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited if otherwise appropriate. See Fed. 

R. App. P. 32.1(a); Tenth Cir. R. 32.1(A). 
3 

We review the district court’s ruling for an abuse of discretion. 

Denton v. Hernandez, 504 U.S. 25, 33 (1992). In our view, the dismissal 

obviously fell within the district court’s discretion because Mr. Gravley’s 

factual contentions were unbelievable. We therefore dismiss the appeal as 

frivolous.1

 

Though we dismiss the appeal, we must consider Mr. Gravley’s 

request for leave to proceed in forma pauperis. Mr. Gravley lacks enough 

money to prepay the filing fee, but we can grant leave to proceed in forma 

pauperis only if Mr. Gravley acted in good faith. 28 U.S.C. § 1915(a)(3). 

We consider good faith under an objective standard, so a frivolous appeal 

is—by definition—made in bad faith. Coppedge v. United States, 369 U.S. 

438, 444–45 (1962). Because we have already characterized the appeal as 

frivolous, we deny Mr. Gravley’s request for leave to proceed in forma 

pauperis. See Lee v. Clinton, 209 F.3d 1025, 1026–27 (7th Cir. 2000) 

(holding that a frivolous suit is, by definition, not taken in good faith for 

purposes of leave to proceed in forma pauperis). 

 

1

 The district court’s dismissal and ours count as two “prior occasions” 

for future requests for leave to proceed in forma pauperis. See 28 U.S.C. 

§ 1915(g); see also Jennings v. Natrona Cty. 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.”), overruled on other grounds by Coleman 

v. Tollefson, 135 S. Ct. 1759, 1763 (2015). 
4 

Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge