Lawrence v. Peters
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
| THOMAS R. LAWRENCE, Plaintiff-Appellant, v. ALAN J. PETERS; BRENDA TAYLOR; LARRY POZNER, Defendants-Appellees. | No. 99-1448
|
ORDER AND JUDGMENT(*)
Before KELLY, McKAY, and
HENRY, 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.
Thomas R. Lawrence, a chiropractor indicted for medicare fraud, brought an
action for extortion and for declaratory and injunctive relief against Brenda
Taylor, the federal prosecuting attorney, Alan J. Peters, the federal
investigator assigned to prepare the criminal case against Mr. Lawrence, and
Larry Pozner, Mr. Lawrence’s own defense attorney. He alleged that the
defendants conspired to violate his constitutional rights and violated the
federal Racketeer Influenced and Corrupt Organization Act (RICO) statutes. He
also requested a show cause order as to why defendant Taylor should not be
disciplined and an order requiring her to explain how she determined that his
indictment should allege Medicare/Medicaid overbilling of $219,000 instead of a
lesser amount.
The district court dismissed the entire action pursuant to Fed. R. Civ. P.
12(b)(6) for several reasons. We review the court’s dismissal of the complaint
de novo, accepting as true all well-pleaded allegations and affirming
only if it appears beyond doubt that Mr. Lawrence “can prove no set of facts in
support of his claim which would entitle him to relief.” Sutton v. Utah
State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(quotation omitted).
Using this standard, we have carefully reviewed the district court’s order,
and for substantially the same reasons as stated in that order, we affirm the
dismissal of Mr. Lawrence’s suit. The district court attempted to explain to Mr.
Lawrence at a hearing that his criminal trial was the proper forum in which to
litigate the allegations in the indictment, and the government correctly argued
that Mr. Lawrence’s complaint simply prematurely alleged a malicious prosecution
case before he had established in his criminal trial that the allegations were
unfounded. See Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)
(holding that in order to maintain a malicious prosecution claim under ? 1983,
plaintiff must allege facts tending to prove the common law elements of
malicious prosecution and that his Fourth Amendment right to be free from
unreasonable seizure has been violated); Walford v. Blinder, Robinson &
Co., 793 P.2d 620, 623 (Colo. Ct. App. 1990) (setting forth essential
elements of malicious prosecution claim in Colorado: (1) defendant was a party
to or assisted in a criminal or civil proceeding against the plaintiff; (2) the
proceeding was resolved in favor of plaintiff; (3) there was no probable cause
for the proceeding; (4) the defendant was actuated by malice in instituting the
proceedings; and (5) the plaintiff was damaged thereby). Contrary to Mr.
Lawrence’s claim, the district court did not take the position that a
prosecuting attorney “who places a completely false figure . . . on an
indictment . . . in order to render a defendant in terrorem is not
guilty of anything.” Appellant’s Br. at 6 (emphasis in original).
We also reject Mr. Lawrence’s claim that the court’s use of the word
“possible” in a sentence describing Ms. Taylor’s participation in the criminal
case proves that the district court’s order was written either by a law clerk
without knowledge of the true facts or as a result of the court’s bias against
pro se litigants. See id. at 3. The context clearly indicates that the
court was describing who the defendants in the lawsuit were, with the word
“possible” explaining that Ms. Taylor’s job initially was to determine whether
criminal charges against Mr. Lawrence should be filed.
Mr. Lawrence likewise misinterprets the requirements of a prima facie showing
of a RICO violation and the district court’s statements made in conjunction with
its ruling. Mr. Pozner withdrew as Mr. Lawrence’s attorney on May 12, 1998.
See R. Doc. 1, Ex. B3. Mr. Lawrence states that he was indicted on June
23, 1999. See Appellant’s Br. at 3. Mr. Lawrence alleged that Mr.
Pozner violated 18 U.S.C. ? 1503 (obstructing justice by trying to influence a
juror or officer of the court) as part of his RICO claim. In dismissing the RICO
action against Mr. Pozner, the district court stated that a violation of ? 1503
must relate to a pending federal action against the plaintiff, and no such
action was pending. On appeal, Mr. Lawrence argues that the criminal action
against him satisfied the “pending” requirement. However, Mr. Lawrence had not
even been indicted at the time he alleged that Mr. Pozner violated ? 1503, thus
the district court properly dismissed the RICO claim.
The judgment of the United States District Court for the District
of Colorado is AFFIRMED.
Entered for the Court
Circuit Judge
FOOTNOTES
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*. 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.