FILED

United States Court of Appeals

Tenth Circuit

July 21, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICAH BLACKFEATHER,

Plaintiff-Appellant,

v.

CHRISTY WHEELER; JASON

KORN; DAVID KENNEDY; JOHN

LEWELLYNG; WILLIAM

RAYMOND MILLER; MIGUEL

FLORES; KELLY ADAMS; KEVIN

BERNARD HILLIARD; CARRIE

LOUISE ADAMS; TYLER ADAMS;

EMILIA NORIEGA; ABLE

JIMENEZ; HILARIA JIMENEZ;

VALERIE HEALD,

Defendants-Appellees.

No. 15-1094

(D.C. No. 1:14-CV-02566-LTB)

(D. Colo.)

ORDER AND JUDGMENT*

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.

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

decided unanimously that oral argument would not materially assist 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This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate

Procedure 32.1 and Tenth Circuit Rule 32.1.
Pro se prisoner Micah Blackfeather appeals from the district court’s

dismissal of his § 1983 civil-rights claim.1

 In his underlying complaint, Mr.

Blackfeather alleged that police officers and private citizens filed falsified reports

stating that he was responsible for stealing two bicycles, and that, as a result, he

has been falsely imprisoned. Prior to the defendants being served with the

complaint, the district court reviewed the complaint under 28 U.S.C.

§ 1915(e)(2)(B)(i) and dismissed it as frivolous. 

We dismiss Mr. Blackfeather’s appeal as frivolous and deny him leave to

proceed in forma pauperis (“IFP”) on appeal. Further, because Mr. Blackfeather

is subject to the three-strikes provision of the Prison Litigation Reform Act

(“PLRA”), we impose two strikes under 28 U.S.C. § 1915(g). 

I

Mr. Blackfeather was arrested in August 2013 for bicycle theft. Private

citizens apprehended him and managed to “wrestle him to the ground” after

chasing him. R. at 57 (Wheeler Police Report, dated Aug. 21, 2013). When

police officers arrived at the scene, they found two men “sitting on top of” Mr.

Blackfeather to prevent him from getting away. Id. at 54 (Kennedy Police

Report, dated Aug. 21, 2013). Because Mr. Blackfeather had a cut on his leg, was

1 As explicated further, infra, we liberally construe Mr. Blackfeather’s

pro se filings, see Curtis v. Chester, 626 F.3d 540, 543 n.1 (10th Cir. 2010), but

we do not assume the role of his advocate, see Yang v. Archuleta, 525 F.3d 925,

927 n.1 (10th Cir. 2008). 

2
complaining of pain, and appeared to be confused, he was transported to the

Longmont University Hospital for treatment before being taken to the Boulder

County Jail.

Three police officers—Chrystie Wheeler, David Kennedy, and Jason

Korn—each filed reports detailing the incident, and several individuals provided

statements claiming that they had witnessed Mr. Blackfeather steal a bicycle from

Mr. Miguel Flores. Mr. Blackfeather is currently detained at the Colorado Mental

Health Institute in Pueblo, Colorado, and had criminal charges pending against

him in Colorado state court at the time the district court dismissed this lawsuit.2

 

In September 2014, Mr. Blackfeather filed the present § 1983 lawsuit

against the three police officers as well as eleven private individuals. His

amended complaint3

 asserted that the police officers falsified their reports, that

the witnesses lied about his conduct, and that, as a result, he has been falsely

imprisoned. However, before the defendants had been served, the district court

dismissed the amended complaint as frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i).4

 The court found that Mr. Blackfeather could not assert

2 The record does not contain sufficient information for us to ascertain

whether the charges have since been resolved.

3 A magistrate judge found his initial complaint to be deficient because

it consisted primarily of conclusory allegations, and directed him to file an

amended complaint. 

4 28 U.S.C. § 1915(e)(2) provides that “the court shall dismiss the case

(continued...)

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§ 1983 claims against the private citizens because he had failed to allege facts

demonstrating that they were acting under color of state law. Moreover,

according to the district court, his claims against the police officers also failed

because he did not allege sufficient facts to support a constitutional claim against

them. Finally, the court held that he had not demonstrated that “any of the named

Defendants are responsible for his continuing confinement.” R. at 116 (Order of

Dismissal, filed Feb. 13, 2015). In addition to dismissing the amended complaint,

the district court noted that “any appeal . . . would not be taken in good faith” and

therefore denied Mr. Blackfeather IFP status on appeal. Id. at 119. 

II

On appeal, Mr. Blackfeather reasserts his allegation that the police officers

“falsified police reports to make an arrest” and “support[ed] their claims with

fake witnesses and victims.” Aplt Opening Br. at 3. He further claims that he

was “chased down, shot at and beat[en] up and then strangled” when he was

apprehended, and that the police “kidnapp[ed] [him] into a waiting [a]mbulance,”

where he was “shot up until [he] passed out” and mistreated at the hospital. Id.

He also seeks leave to proceed IFP. 

4

(...continued)

at any time if the court determines that . . . [] the action or appeal [] is frivolous

or malicious.” 

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A

“We generally review a district court’s dismissal for frivolousness under

§ 1915 for abuse of discretion.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.

2006). “Abuse-of-discretion review ordinarily includes review of any legal

conclusions de novo and any factual findings for clear error.” United States v.

Ray, 704 F.3d 1307, 1315 (10th Cir. 2013). A claim is frivolous “where it lacks

an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325

(1989). In determining whether a complaint is frivolous, we are not bound by the

usual rule that we must accept the allegations in the pleadings as true; however,

the allegations must still be “weighted in favor of the plaintiff.” Denton v.

Hernandez, 504 U.S. 25, 32 (1992); see Neitzke, 490 U.S. at 327 (stating that

language, which is now codified in material respects in § 1915(e), gives courts

“the unusual power to pierce the veil of the complaint’s factual allegations”). 

B

Although we construe pro se pleadings liberally, see Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), we have repeatedly

emphasized that “pro se litigants must follow the same rules of procedure that

govern other litigants,” Shrader v. Biddinger, 633 F.3d 1235, 1249 n.9 (10th Cir.

2011); accord Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). As relevant

here, we have held that Federal Rule of Appellate Procedure 28 “applies equally

to pro se litigants”; pursuant to this rule, a brief “must contain . . . more than a

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generalized assertion of error, with citations to supporting authority.” Garrett,

425 F.3d at 841 (omission in original) (quoting Anderson v. Hardman, 241 F.3d

544, 545 (7th Cir. 2001)). While we typically excuse a pro se plaintiff’s failure

“to cite proper legal authority, his confusion of various legal theories . . . or his

unfamiliarity with pleading requirements,” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991), we have nevertheless found that a pro se brief that consists of no

more than “mere conclusory allegations with no citations to the record or any

legal authority for support” does not preserve an issue for appellate review,

Garrett, 425 F.3d at 841 (emphases added). 

Mr. Blackfeather’s brief is bereft of a statement of facts or any citations to

the record or legal authority. In both his statement of the issues and his

specification of the district court’s legal and factual errors, he simply reiterates

his amended complaint’s conclusory averments—namely, that the police reports

and witness statements contained therein are false and that he was mistreated

when he was apprehended. He does not address the district court’s conclusion

that his amended complaint was frivolous or attempt to demonstrate that his

claims do not meet the § 1915(e)(2)(B)(i) standard for frivolity. Mr.

Blackfeather’s deficient briefing therefore waives any appellate review of the

district court’s decision. See Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th

Cir. 2007) (“[A] party waives those arguments that its opening brief inadequately

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addresses.”); Garrett, 425 F.3d at 841 (“[T]he inadequacies of Plaintiff’s [pro se]

briefs disentitle him to review by this court.”). 

C

Even if we were to exercise our discretion to overlook Mr. Blackfeather’s

waiver, see United States v. Montgomery, 550 F.3d 1229, 1231 n.1 (10th Cir.

2008), he would not prevail. Simply put, his conclusory and unfocused briefing,

construed liberally, does not provide an “arguable basis either in law or in fact”

for us to reverse the district court. Neitzke, 490 U.S. at 325. 

First, with respect to Mr. Blackfeather’s claim that the police officers

falsified their reports, his amended complaint and his appellate brief contain

largely bare allegations. See R. at 106 (Am. Compl., filed Jan. 6, 2015) (stating

that “the officers have forged a Police Report”); id. at 109 (stating that the

witnesses “either . . . did not lawfully give statements or . . . did not speak with

the Police Officers at all”); Aplt. Opening Br. at 3 (stating that the police

“falsified Police Reports,” that the alleged crime “never occurred,” and that

police “created” fake witnesses). Yet, in order to state a plausible claim, a

plaintiff must allege sufficient “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the absence of any “well-pleaded

factual contentions” giving rise to the plausible inference that the police officers

falsified their reports, the district court was not required to accept Mr.

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Blackfeather’s “conclusory allegations” as true, Hall, 935 F.2d at 1110, and did

not err in finding that the claim was “clearly baseless,” Neitzke, 490 U.S. at 327;

see Reed v. Dunham, 893 F.2d 285, 287 (10th Cir. 1990) (concluding that

allegations that were “unfocused, conclusory, and hopelessly deficient” were

appropriately dismissed as frivolous). 

Second, Mr. Blackfeather argues that he was “shot at and beat up and then

strangled” during his apprehension. Aplt. Opening Br. at 3. It appears from the

record that Mr. Blackfeather was initially detained by private individuals who

chased after him. See R. at 54. A private citizen “can be held liable under § 1983

only if she was a ‘willful participant in joint action with the State or its agents.’” 

Beedle v. Wilson, 422 F.3d 1059, 1071 (10th Cir. 2005) (quoting Dennis v.

Sparks, 449 U.S. 24, 27 (1980)); see Lee v. Town of Estes Park, 820 F.2d 1112,

1114 (10th Cir. 1987) (“[I]n order to hold a private individual liable under

§ 1983, it must be shown that the private person was jointly engaged with state

officials in the challenged action, or has obtained significant aid from state

officials, or that the private individual’s conduct is in some other way chargeable

to the State.”). 

In Lee, we concluded that a private individual who effected a “citizen’s

arrest” and escorted the plaintiff to a police station was not a state actor or

engaged in joint action where there was no evidence “that there was any

prearrangement” and the police officer “made the decision as to whether [the

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plaintiff] should be charged with any offense.” 820 F.2d at 1115. Neither Mr.

Blackfeather’s complaint nor his appellate brief contain any allegations that the

individuals who detained him were acting in concert with the police officers; thus,

his claim against the private citizens who apprehended him “lacks even an

arguable basis in law.” Neitzke, 490 U.S. at 328.5

Finally, Mr. Blackfeather alleges that the police “helped kidnap[] [him] into

a waiting Ambulance” where he was “shot up until [he] passed out.” Aplt.

Opening Br. at 3. He further claims that when he woke up in the hospital he “was

being drained of blood” and there were “holes in [his] back from bullets and skin

grafting taken from [his] legs.” Id. As an initial matter, none of these allegations

appear in the complaints Mr. Blackfeather filed in the district court, and thus he

has waived any legal claim relating to this alleged conduct. See Ramirez v. Sec’y,

U.S. Dep’t of Transp., 686 F.3d 1239, 1250 (11th Cir. 2012) (“[B]eing pro se

does not, by itself, excuse a failure to raise an argument below . . . .”). Moreover,

5 Before the district court, Mr. Blackfeather argued that various private

individuals gave false witness statements. On appeal, he does not press this

claim, but instead argues that the witnesses were simply “created” by the police

officers as part of their falsified reports. Aplt. Opening Br. at 3. Even if Mr.

Blackfeather had preserved his contention that the witnesses lied, he would not

have prevailed under § 1983 because there are no plausible allegations that there

was a “conspiracy, prearranged plan, customary procedure, or policy that

substituted the judgment of a private party for that of the police or allowed a

private party to exercise state power.” Carey v. Cont’l Airlines, Inc., 823 F.2d

1402, 1404 (10th Cir. 1987); see also Benavidez v. Gunnell, 722 F.2d 615, 618

(10th Cir. 1983) (“The mere furnishing of information to police officers does not

constitute joint action under color of state law . . . .”). 

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the Supreme Court has advised that such “fanciful factual” allegations, Neitzke,

490 U.S. at 325, which “rise to the level of the irrational or the wholly

incredible,” Denton, 504 U.S. at 33, are appropriately treated as factually

frivolous under § 1915(e)(2)(B). 

Thus, we conclude that the district court appropriately deemed Mr.

Blackfeather’s claims to be frivolous. 

D

The so-called three-strikes provision, 28 U.S.C. § 1915(g), states that after

a prisoner files three civil “action[s] or appeal[s]” that are dismissed as

“frivolous, malicious, or [for failure] to state a claim,” he is no longer entitled to

proceed IFP unless he is in “imminent danger of serious physical injury.” Here,

the district court dismissed Mr. Blackfeather’s amended complaint as frivolous,

and, as we explain supra, it did not err in doing so. 

Further, 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.” 

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

1999). Because Mr. Blackfeather’s appellate brief fails to address whether the

district court’s determination under § 1915(e)(2)(B) was erroneous, but instead

largely rehashes the inadequate allegations in his amended complaint, it does not

provide even an arguable basis in law or fact for reversal, and is thus frivolous.

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Therefore, because we affirm the district court’s finding that Mr.

Blackfeather’s amended complaint was frivolous, and also conclude that his

appeal is frivolous, two strikes are warranted in this case. Moreover, because we

conclude that Mr. Blackfeather’s appeal is frivolous, we also deny him leave to

proceed IFP on appeal. See Rolland v. Primesource Staffing, LLC, 497 F.3d 1077,

1079 (10th Cir. 2007) (stating that in order to proceed IFP on appeal, an appellant

must demonstrate “the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal”). 

We caution Mr. Blackfeather that a third strike will preclude him from

bringing any civil action or an appeal from a judgment in a civil action without

prepaying the applicable filing fee unless he can demonstrate “imminent danger

of serious physical injury.” 28 U.S.C. § 1915(g). 

III

For the foregoing reasons, we DISMISS Mr. Blackfeather’s appeal as

frivolous, DENY his motion for IFP status, and impose two strikes under the

PLRA. We remind Mr. Blackfeather of his obligation to pay the filing fee in full. 

Entered for the Court

JEROME A. HOLMES

Circuit Judge

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