Isham v. United States
17-8054
| 10th Cir. | Nov 21, 2017Background
- In 2003 Isham was charged with DUI, loaded firearm, trespass (federal), and possession of a controlled substance in Grand Teton National Park; the DUI conviction was later dismissed on appeal and the firearm conviction resulted in a $25 fine.
- In 2014 (about ten years later) a prospective employer’s background check reported all four 2003 offenses, prompting Isham to sue pro se claiming constitutional violations for failing to correct or clarify the background information.
- Isham sued under 42 U.S.C. § 1983 and Bivens, seeking $675,000 in lost wages and alleging the background report was presented in an intentionally misleading way.
- The district court screened the IFP complaint under 28 U.S.C. § 1915(e)(2)(B) and dismissed it for failure to state a claim, finding the report accurately reflected the offenses charged in 2003.
- Isham appealed; he conceded accuracy of the raw entries but argued the presentation was misleading and prejudicial, and raised various procedural complaints (no appointed counsel, no transcripts).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the background-report presentation states a constitutional claim under § 1983 or Bivens | Isham: listing charges/convictions together and ordering/wording (e.g., “loaded firearm,” placement, lack of fine) is misleading and harms employment prospects | Government/Wyoming: the report accurately reflected the historical charges; no constitutional deprivation alleged | Dismissal affirmed — complaint fails to allege facts showing a constitutional violation under § 1983 or Bivens |
| Whether IFP screening dismissal was improper | Isham: sua sponte dismissal limited his access and he was not given chances (e.g., appointed counsel) | Government: statute requires dismissal of meritless IFP suits to conserve resources | Dismissal under § 1915(e)(2)(B)(ii) was proper; district court followed required procedure |
| Whether Isham stated a defamation/slander claim | Isham: uses terms defamatory/defamed but offers no developed legal theory or elements | Government: no developed defamation claim in pleading; no constitutional claim shown | Court declined to consider undeveloped defamation argument; perfunctory assertions insufficient for appellate review |
| Whether Isham was entitled to appointed counsel or transcripts | Isham: requested appointed counsel and transcripts of unspecified "original proceedings" | Government: no Sixth Amendment right to counsel in civil cases; no proceedings occurred in this case to generate transcripts | Court rejected these procedural complaints as without merit |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognizes implied damages action against federal officials for certain constitutional violations)
- Kay v. Bemis, 500 F.3d 1214 (10th Cir. 2007) (de novo review of § 1915(e)(2)(B) dismissals; accept pro se allegations as true)
- Neitzke v. Williams, 490 U.S. 319 (1989) (IFP statute permits dismissal of meritless complaints to preserve judicial resources)
- Johnson v. Johnson, 466 F.3d 1213 (10th Cir. 2006) (no Sixth Amendment right to counsel in civil cases)
- Nixon v. City & County of Denver, 784 F.3d 1364 (10th Cir. 2015) (appellate standard: appellant must explain why district court was wrong)
- Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853 (10th Cir. 2016) (Bivens allows suits for some First, Fourth, and Eighth Amendment violations)
- Murrell v. Shalala, 43 F.3d 1388 (10th Cir. 1994) (perfunctory, undeveloped claims do not invoke appellate review)