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  • Payment v. BOP, 10th Cir. (2000)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding an appeal filed by Wayne Payment of the dismissal of his civil rights complaint against the Bureau of Prisons. The district court had dismissed Payment's complaint, which argued that his crime of unarmed bank robbery was not a crime of violence, as legally frivolous. The appeals court affirmed the district court's dismissal, finding that unarmed bank robbery is considered a crime of violence under the relevant statute. The court also rejected Payment's argument that the district court improperly screened his complaint under the relevant statute since he paid filing fees, noting that the screening applies regardless of payment of fees.

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    Filed: 2000-12-14 Precedential Status: Non-Precedential Docket: 00-1290

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding an appeal filed by Wayne Payment of the dismissal of his civil rights complaint against the Bureau of Prisons. The district court had dismissed Payment's complaint, which argued that his crime of unarmed bank robbery was not a crime of violence, as legally frivolous. The appeals court affirmed the district court's dismissal, finding that unarmed bank robbery is considered a crime of violence under the relevant statute. The court also rejected Payment's argument that the district court improperly screened his complaint under the relevant statute since he paid filing fees, noting that the screening applies regardless of payment of fees.

    Copyright:

    Public Domain
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    8 views3 pages

    Payment v. BOP, 10th Cir. (2000)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding an appeal filed by Wayne Payment of the dismissal of his civil rights complaint against the Bureau of Prisons. The district court had dismissed Payment's complaint, which argued that his crime of unarmed bank robbery was not a crime of violence, as legally frivolous. The appeals court affirmed the district court's dismissal, finding that unarmed bank robbery is considered a crime of violence under the relevant statute. The court also rejected Payment's argument that the district court improperly screened his complaint under the relevant statute since he paid filing fees, noting that the screening applies regardless of payment of fees.

    Copyright:

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    of 3

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    DEC 14 2000

    PATRICK FISHER
    Clerk

    WAYNE PAYMENT,
    Plaintiff-Appellant,
    v.
    BOP; KATHLEEN HAWK-SAWYER,
    Director; AL HERRERA, Warden,

    No. 00-1290
    (District of Colorado)
    (D.C. No. 00-Z-804)

    Defendants-Appellees.

    ORDER AND JUDGMENT *


    Before BRORBY, KELLY, and MURPHY, Circuit Judges.

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

    Proceeding in forma pauperis and pro se, Plaintiff Wayne Payment appeals
    the district courts dismissal of the civil rights complaint he brought against the
    Bureau of Prisons pursuant to Bivens v. Six Unknown Named Agents of Federal
    Bureau of Narcotics, 403 U.S. 388 (1971). In his complaint, Plaintiff alleged that
    his crime of conviction, unarmed bank robbery, was not a crime of violence and,
    therefore, his right to due process was violated when the BOP assigned him an
    offense severity rating of greatest severity. Concluding that unarmed bank
    robbery is a crime of violence within the meaning of 18 U.S.C. 924(c)(3), the
    district court dismissed the complaint sua sponte pursuant to 18 U.S.C.
    1915A(b) on the ground that it was legally frivolous. See Royal v. Tombone, 141
    F.3d 596, 602 (5th Cir. 1998).
    In this appeal, Plaintiff raises the same arguments he raised before the
    district court. Additionally, Plaintiff contends that the district court erred in
    dismissing his complaint under 1915A because he paid the entire filing fee and,
    therefore, did not proceed in forma pauperis in district court. Plaintiffs
    argument is wholly without merit. The screening procedure set forth in 1915A
    applies to all civil complaints filed by prisoners against governmental entities,
    officers, or employees regardless of whether the prisoner has paid the filing fee.
    See Plunk v. Givens, No. 00-1375, slip op. at 3 (10th Cir. December 12, 2000).

    -2-

    Thus, it was appropriate for the district court to dismiss Plaintiffs complaint
    pursuant to 1915A.
    Upon review of Plaintiffs complaint and appellate brief, the district courts
    order, and de novo review of the entire record on appeal, this court affirms the
    district courts dismissal of Plaintiffs complaint for substantially those reasons
    set forth in the district courts order dated June 28, 2000. Plaintiff is reminded
    that he remains obligated to continue making partial payments of the appellate
    filing fee pursuant to 1915(b).
    ENTERED FOR THE COURT

    Michael R. Murphy
    Circuit Judge

    -3-

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