UNITED STATES COURT OF APPEALS

Filed 6/24/96

TENTH CIRCUIT

JOSEPH W. HIGGINS,

Plaintiff - Appellant,

v.

BILL CLINTON; PATRICIA

SCHROEDER; JANET RENO; ROY

ROMER; LOUIS D. ROUIRA;

DOUGLAS E. ANDERSON; NICHOUS

R. MASSARO; TOM DIESLER; GALE

A. NORTON; TIMOTHY M.

TYMKOVICK; JAMES JOY; DONICE

NEAL; RICK MARTINEZ; SALLY

SCHMIDT; JOHN HADLEY; OFFICER

DIMARINO; PEGGY WYMAN; JOYCE

S. FREEMAN; MICHAEL HENRY, all

in their individual capacities,

Defendants - Appellees.

No. 95-1182

(D. Ct. No. 94-N-760)

(D. Colo.)

JOSEPH W. HIGGINS,

Plaintiff - Appellant,

v.

STEVE EHRLICH, U.S. District Court

Clerk; WILLIAM K. SUTER; RICHARD

M. BORCHERS; O. EDWARD

SCHLATTER; ZITA L. WEINSHIENK,

Defendants - Appellees.

No. 95-1280

(D. Ct. No. 95-S-185)

(D. Colo.)
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JOSEPH W. HIGGINS,

Plaintiff - Appellant,

v.

WILLIAM K. SUTER,

Defendant - Appellee.

No. 95-1298

(D. Ct. No. 94-Y-371)

(D. Colo.)

JOSEPH W. HIGGINS,

Plaintiff - Appellant,

v.

JANET RENO; WILLIAM K. SUTER;

RICHARD M. BORCHERS; O.

EDWARD SCHLATTER, Magistrate

Judge; ZITA L. WEINSHIENK, all in

their individual capacities; FIDELITY &

GUARANTY INSURANCE COMPANY,

Defendants - Appellees.

No. 95-1345

(D. Ct. No. 95-S-944)

(D. Colo.)

JOSEPH W. HIGGINS,

Plaintiff - Appellant,

v.

DONICE NEAL, WILLIAM BOKRA, A.

R. BENNETT, LUEALLE WATKIN,

STEPHEN L. RODGERS, FEDRICO

ALVAREZ, named: Federico C. Alvarez,

all in their individual capacities,

Defendants - Appellees.

No. 95-1532

(D. Ct. No. 93-K-833)

(D. Colo.)
*This order and judgment is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders

and judgments; nevertheless, an order and judgment may be cited under the terms and conditions

of 10th Cir. R. 36.3.

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ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

These appeals are from an order of the district court entered in related cases all

brought by this pro se plaintiff. Plaintiff is in the custody of the Colorado Department of

Corrections and all of the allegations in these appeals relate to various aspects of his

treatment by the Colorado Department of Corrections and by the courts. Taken together,

the initial filings and the appeals therefrom in all of these cases are a series of frivolous

and/or nonmeritorious claims. Even construing the pleadings liberally, as we must in the

case of this pro se plaintiff, none of the cases filed below nor the appeals presents

meritorious claims. We therefore affirm the orders of the district court on appeal in all of

these cases.

In case no. 95-1182, Higgins v. Clinton, plaintiff appeals from an order of the
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district court accepting the recommendation of the United States Magistrate Judge and

dismissing the civil rights action as frivolous, striking portions of plaintiff’s filings, and

denying all other motions. On appeal in this action, plaintiff alleges that the district court

erred in adopting the magistrate’s recommendations and in dismissing the action without

any service of process on the defendants. Plaintiff alleges that he is entitled to various

procedural protections even when the claims in the complaint are deemed frivolous. 

Plaintiff misapprehends the law. No service of process is required, and the district court

is authorized to dismiss a complaint sua sponte when the complaint is clearly frivolous on

its face. 28 U.S.C. § 1915(d). 

Plaintiff further alleges on appeal that the magistrate judge improperly relied on 42

U.S.C. § 1983 as a basis for analyzing the claims in the complaint. On appeal, the

plaintiff makes clear that he is basing his claims on 42 U.S.C. § 1985(3) which requires

conspiratorial action on the part of the defendants. We have reviewed the record and

agree with the magistrate judge and the district court that any claims brought under §

1985(3) are baseless and that he fails to allege any facts in support of his claim of a

conspiracy or an agreement among the defendants. The magistrate judge was properly

carrying out his duty to construe the complaint liberally in analyzing the potential § 1983

claims in addition to analyzing the § 1985(3) claim. Having reviewed the record and all

of the pleadings in this case, we agree with the district court that the claims are frivolous

and were properly dismissed under 28 U.S.C. § 1915(d).
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In case no. 95-1280, Higgins v. Ehrlich, plaintiff appeals from an order of the

district court denying a motion for reconsideration of the district court’s decision to

dismiss the complaint brought as a mandamus complaint pursuant to 28 U.S.C. § 1361. 

The mandamus complaint was dismissed by the district court as legally frivolous pursuant

to 28 U.S.C. § 1915(d) (1994). In this case, plaintiff purports to bring the mandamus

action on behalf of him and his minor daughter. The minor daughter was dismissed from

the suit because plaintiff lacks standing to sue on her behalf. Again, in this mandamus

action, the district court refused to file the civil rights complaint because the district court

made a finding that the complaint was frivolous and therefore does not meet the standards

of 28 U.S.C. § 1361, which requires that the court find that the plaintiff have a clear right

to relief in a mandamus action. Clearly, there is no right to have a mandamus action

served where the underlying complaint is deemed frivolous.

On appeal in this case, plaintiff alleges again a series of bases for relief which

generally assert that the district court erred by refusing to serve the civil rights complaint

and by sua sponte dismissing the complaint as frivolous. Read liberally, the argument of

the plaintiff on appeal appears to be that the granting of in forma pauperis status gives a

civil rights complainant a right to have the complaint served. The plaintiff misapprehends

the law. 28 U.S.C. § 1915(d) authorizes the district court to dismiss a frivolous complaint

sua sponte without service. Under these circumstances, the mandamus action is clearly

not authorized. We have reviewed the record and pleadings in this appeal and AFFIRM
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the order of the district court in all respect.

In case no. 95-1298, Higgins v. Sutter, plaintiff apparently attempts to invoke the

authority of United States Attorneys under 28 U.S.C. § 547 (1993) and sues defendant

Sutter, the Clerk of the United States Supreme Court, for allegedly mishandling petitions

filed by plaintiff. Plaintiff here clearly has no right to prosecute a criminal action and no

standing to bring this action. We agree with the district court that the complaint in this

case must be dismissed for lack of standing. On appeal, plaintiff argues generally that his

filings have been mishandled by the United States Supreme Court. We find no merit in

any allegations made on appeal and AFFIRM the order of the district court in all

respects.

In case no. 95-1345, Higgins v. Reno, plaintiff appeals from an order of the district

court dismissing an action brought pursuant to 42 U.S.C. § 1985(3), 28 U.S.C. §§ 2201-

2202 (1994) and asserts jurisdiction under an unspecified provision of the Tucker Act. 

Plaintiff further appeals from the portion of the order of the district court granting

sanctions against this plaintiff. The order appealed from in this case relates to the

previously described action, no. 95-1280, Higgins v. Ehrlich. In both cases, plaintiff filed

a purported civil rights complaint and provided the court with copies for service. In

Higgins v. Ehrlich, the order of dismissal and the sanctions order were based upon a

finding of frivolousness under 28 U.S.C. § 1915(d). In this action, plaintiff alleges a

conspiracy to hide a criminal complaint and to deny him access to the courts, his property,
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and his liberty under the United States Constitution. He makes further allegations

regarding constitutional violations related to his treatment by the Colorado Department of

Corrections. None of the allegations in the complaint are supported by any facts other

than vague and conclusory allegations. The district court therefore dismissed the

complaint in this action pursuant to 28 U.S.C. § 1915(d). The district court further recites

in its order the series of frivolous complaints that have been filed in the district courts in

Colorado and includes in the final order a provision prohibiting this plaintiff from

initiating civil actions in the United States District Court for the District of Colorado

without representation by an attorney or prior leave of the court to proceed pro se. The

district court further orders that the Clerk of the Court to add this plaintiff to its regularly

maintained list of pro se litigants whose future filings have been restricted. We have

reviewed the record and the filings in this case and agree that the complaint was properly

dismissed as frivolous and that the sanction imposed is warranted under the circumstances

of the repeated frivolous filings by this plaintiff. We therefore AFFIRM the order of the

district court in all respects.

The final appeal in this group of filings by plaintiff is case no. 95-1532, Higgins v.

Neal. In this appeal, the plaintiff appeals an order of the district court granting

defendant’s motion for summary judgment and adopting the recommendation of the

magistrate judge. Again, this appeal is brought pursuant to 42 U.S.C. § 1985(3) which

requires a showing of a conspiracy to interfere with civil rights. Plaintiff in this action
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alleges that various prison authorities and other officials conspired to violate his civil

rights based on the fact that he is African American. In his report and recommendation,

the magistrate judge very thoroughly analyzes the allegations of constitutional violations

under all arguably applicable statutory bases. We have reviewed the record and briefs in

this case and agree with the magistrate judge and the district court that all but one of

plaintiff’s § 1985(3) claims must fail because the undisputed facts in the record do not

establish any violation of plaintiff’s constitutional rights. The only arguable

constitutional violation was a due process violation in the disciplinary proceeding but for

that claim to succeed there must be at least a factually supported allegation of a

conspiracy in violation of § 1985(3). The complaint wholly fails to allege facts sufficient

to show a conspiracy on the part of these defendants. We therefore AFFIRM the order of

the district court granting summary judgment in favor of the defendants.

With respect to those appeals affirmed herein, the plaintiff is granted in forma

pauperis status. All other pending motions in these cases are DENIED. This court

AFFIRMS all of the district court orders appealed from in these appeals.

The mandate shall issue forthwith.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge