Payment v. BOP, 10th Cir. (2000)
Payment v. BOP, 10th Cir. (2000)
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.
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This order and judgment is not binding precedent, except under the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).
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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
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