*

This order and judgment is not binding precedent except under the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

February 5, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL DOYLE,

Plaintiff - Appellant, No. 09-1523

v. (D. Colorado)

MARTIN F. EGELHOFF, Judge,

Denver District Court; ROBERT L.

McGAHEY, JR., Judge, Denver

District Court; BARRETT WEISZ,

Reg. No. 27601, Head Chair, Public

Defender; T. MARSHAL SEUFERT,

Reg. No. 29850, Second Chair, Public

Defender; EDWARD A. PLUSS, Reg.

No. 10648, Conflict Free Counsel;

ROBERT P. BORQUEZ, Reg. No.

2302, Conflict Free Counsel;

ARTURO G. HERNANDEZ, Reg. No.

26096, District Attorney;

CHRISTOPHER G. PENNY, Reg. No.

26210, District Attorney,

Defendants - Appellees.

(D.C. No. 09-CV-02327-ZLW)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

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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.

Appellant Michael Doyle, proceeding pro se, appeals the dismissal of his

42 U.S.C. § 1983 action, on the ground that it is “frivolous or malicious,” and it

“seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B)(i) and (iii). For the following reasons, we affirm. We

also find this appeal frivolous under § 1915(e)(2)(B)(i) and we therefore assess a

strike against Mr. Doyle under the Prison Litigation Reform Act (“PLRA”).

 Mr. Doyle was arrested in March 2001, ultimately pled guilty to second

degree murder, and was sentenced to eighteen years’ imprisonment. He is

currently a prisoner in the custody of the Colorado Department of Corrections at

the Sterling Correctional Facility in Sterling, Colorado. He filed the instant

§ 1983 action against two state court judges who presided over his case at

different stages, four attorneys who represented him at various times, and the two

prosecutors involved in his case, alleging that his constitutional rights were

violated during the course of the state court criminal proceedings against him, and

he sought damages as relief.

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1

At the time the district court entered its order of dismissal in this case, it

noted that Mr. Doyle had an application for a writ of habeas corpus pending in the

district court. See Doyle v. Archuleta, No. 07-cv-01358-PAB-KMT (D. Colo.,

filed June 28, 2007). That habeas petition was subsequently dismissed in the

district court, and is pending on appeal in this court. See Doyle v. Archuleta, No.

10-1013 (10th Cir. filed, Jan. 20, 2010). The petition raised two of the same

claims argued in the instant application.

Furthermore, this court recently affirmed the dismissal of yet another 42

U.S.C. § 1983 action by Mr. Doyle, in which he sought damages based upon

claims of retaliation, denial of access to the courts, and embezzlement. The

district court found those claims to be frivolous, and dismissed the complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We dismissed the appeal, stating that

(continued...)

-3-

More specifically, Mr. Doyle argued three issues in federal district court:

his constitutional rights were violated because (1) he was denied a probable cause

hearing after his arrest on March 8, 2001, and he did not make an initial

appearance before a legal tribunal until June 14, 2001; (2) he was denied the

opportunity to file a direct appeal; and (3) he was actually incompetent at the time

of his trial and guilty plea. As indicated, the named defendants in the case were

the state court judge who presided over Mr. Doyle’s criminal case and his motion

to withdraw his guilty plea, the state court judge who presided over his postconviction Rule 35(c) motion, two public defenders, two private attorneys who

apparently were appointed to represent Mr. Doyle, and two deputy district

attorneys who handled various aspects of Mr. Doyle’s criminal case. Neither in

the district court nor on appeal has Mr. Doyle provided specific factual

allegations regarding how each defendant personally participated in the three

specific claims regarding the denial of his constitutional rights.1

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1

(...continued)

the claims were legally frivolous. See Doyle v. Ritter, 334 Fed. Appx. 164 (10th

Cir. June 18, 2009) (unpublished).

-4-

The district court concluded that “Mr. Doyle may not sue any of the named

Defendants in this action for the alleged constitutional violations because each of

the named Defendants either is entitled to immunity or may not be sued pursuant

to § 1983.” Order at 3, R. Vol. 1 at 30. The district court also denied as moot a

pleading filed by Mr. Doyle and labeled “Injunction or Tro,” in which he asked

the court to order the Department of Corrections to provide him with the

photocopies necessary to file this action. The district court also denied Mr. Doyle

leave to proceed on appeal in forma pauperis because Mr. Doyle “has not shown

the existence of a reasoned, nonfrivolous argument on the law and facts in support

of the issues raised on appeal.” Order, R. Vol. 1 at 36.

This appeal followed, in which Mr. Doyle again argues that he was denied a

probable cause hearing and his appearance before a legal tribunal was delayed;

that he was incompetent at the time of his trial and guilty plea; and that the

judges, attorneys and other individuals are properly named defendants, subject to

suit. He has also filed a pleading labeled “Injunction or TRO,” as well as a

pleading labeled “Addendum” to the “Injunction or TRO,” both of which have

been referred to us for disposition. In these documents, Mr. Doyle seeks an

“injunction or TRO and Order to have DOC comply with indigent photocopys and

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supplies for legal work, so inmates are actually allowed supplies.” Injunction or

TRO at 2.

The district court’s order dismissing this action explained why the various

defendants were either entitled to immunity or were otherwise not subject to suit

under § 1983. It further explained why Mr. Doyle’s claims against his defense

attorneys were legally frivolous and subject to dismissal for that reason. 

Accordingly, we affirm the district court’s order of dismissal, for substantially the

reasons set forth in its decision. We also affirm the dismissal of Mr. Doyle’s

pleadings labeled “Injunction or TRO” and “Addendum.”

This appeal is DISMISSED as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i). Dismissal of Mr. Doyle’s appeal as frivolous counts as a

strike against him, as does the district court’s dismissal of his complaint. See 28

U.S.C. § 1915(g); Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d

775, 780 (10th Cir. 1999). Mr. Doyle now has three strikes under the PLRA, and

is subject to the filing bar contained in § 1915(g). All pending motions are

DENIED, including Mr. Doyle’s request to proceed on appeal in forma pauperis.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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