Case Information
*2 Bеfore KELLY , HENRY , and TYMKOVICH , Circuit Judges. [**]
Dennis R. Eidson, Plaintiff-Appellant, brought a civil suit against government officials under the Racketeer Influenced and Corrupt Organizations Act. After the district court dismissed his action, hе moved to alter the judgment under Rule 59(e). The court converted the motion to one seeking relief from a judgment under Rule 60(b) because Eidson failed to timely file his motion. The court then deniеd the motion. Thereafter, Eidson moved the court to reconsider its conversion and denial of his motion. The court denied the motion. Eidson appeals the dismissal of his claims, the conversion and denial of his motion to alter the judgment and the denial of his motion to reconsider the denial of his motion to alter the judgment. We affirm and dismiss this appeal as frivolous.
BACKGROUND
Eidson, who is сurrently serving a 120-month sentence for manufacturing marijuana, was granted leave to file a civil complaint in forma pauperis . His complaint asserted that various government officials violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961, et seq., by *3 illegally seizing his marijuana crop and arresting and convicting him. Eidson supports his claims by arguing, inter alia , that sеctions of the United States Code regulating and prohibiting drugs such as marijuana “were not . . . enacted into law.” Although the district court declared Eidson’s arguments frivolous, it did not dismiss his claims for that reason. Instead, the court found Eidson failed to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and improperly sought monetary relief from defendants immune from such relief in violation of 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
After the court dismissed Eidson’s claims, he filed a motion under Rule 59(e) to alter the judgment. The district court found that Eidson failed to file the motion within the prescribed ten day period, see Fed. R. Civ. P. 59(e), and thus construed it as а Rule 60(b) motion for relief from judgment. Finding that the errors complained of did not entitle Eidson to relief, the court denied the motion. Eidson then filed a motion seeking reconsideration of the denial of his motion to alter the judgment. The court found no error in either the conversion of Eidson’s Rule 59(e) motion into a Rule 60(b) motion or denial of the motion.
Eidson now appeals the dismissаl of his claims, the conversion and denial of his motion to alter the judgment and the denial of his motion to reconsider the denial of his motion to alter the judgment.
DISCUSSION
1. Dismissal of Eidson’s Complaint
We review de novo claims dismissed under § 1915(e).
See Perkins v. Kan.
Dep’t of Corr. ,
Eidson argues that the seizure of his marijuana plants and his subsequent arrest and сonviction were illegal because no “bona fide contract binding [him] into the criminal maritime jurisdiction” of the United States was entered into evidence. Eidson concluded that becаuse his trial took place under the “yellow fringe flag” of a foreign jurisdiction, it resulted in an invalid conviction. We agree with the district court that these arguments are “indisputably meritless,” fail to state a claim upon which relief can be granted, and impermissibly seek monetary relief from persons immune from such relief.
First, Eidson failed to plead the necessary elements of а RICO claim,
namely that an organized enterprise caused an injury to his business or property.
See Peterson v. Shanks ,
Second, Eidson’s claims impermissibly sought to undermine the validity of
his conviction. In Heck v. Humphrey , the Supreme Court found that a prisoner
cannot bring a civil action that undermines the validity of the conviction unless
“the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid . . . or called into question by a . . . writ of
habeas corpus.”
Eidson’s claims were properly dismissed becausе they sought monetary
relief against government officials immune from such relief in violation of 28
U.S.C. §§ 1915(b)(2)(B)(iii) and 1915A(b)(2). Appellants Burrage and Cook
enjoy absolute immunity in all but the rarest of circumstances because they are
federal judges. See Mireles v. Waco ,
2. Denial of Motion to Amend
We review the district court’s determination that Eidson failed to comply
with Rule 59(e) for an abuse of discretion.
See Computerized Thermal Imaging,
Inc. v. Bloomberg, L.P.
,
A motion to amеnd a judgment must be filed within ten days after the entry
of a final judgment. Fed. R. Civ. P. 59(e). A motion filed after the ten day
period is considered a motion seeking relief from judgment under Rule 60(b).
Van Skiver v. United States
,
The cоurt entered its order dismissing Eidson’s Complaint on February 12,
2004. Due to holidays and weekends, Eidson had until February 27 to file his
motion. See Fed. R. Civ. P. 6(a). Eidson filed his Motion to Amend on March 1,
*7
2004. See Houston v. Lack ,
Eidson argues that his motion was timely submitted because he did not receive the judgment until February 23, 2004. However, the rule makes clear that the time limit is calculated from the date the order is entered. Fed. R. Civ. P. 59(e). Thus, the date Eidson received the order is irrelevant. What is more, Eidson failed to submit his motion in a timely manner even though he received the order four days before the ten days expired. Therefore, the court did not err in construing Eidson’s motion as a Rule 60(b) motion or in denying Eidson’s motion to reconsider the denial of his motion to alter the judgment.
Having determined that the court did not err in construing Eidson’s motion as one seeking relief from a judgment pursuant to Rule 60(b), we turn to the question of whether the court properly denied the relief sought. Eidson’s mоtion does not entitle him to relief because none of his allegations fall within any of the categories set forth in Rule 60(b). For example, Eidson argues that the federal government invadеd his state without authority and applied unconstitutional laws. Eidson also argues that his RICO claims did describe an enterprise, but he only *8 sets forth conclusory statements such as “upon information аnd belief Michael Burrage runs the RICO enterprise at a local level.” Neither these arguments, nor any others contained in the motion, entitle Eidson to relief under Rule 60(b).
3. This Appeal is Frivolous
An appeal in fоrma pauperis may be dismissed “if the court determines that
[it] is frivolous or malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is
frivolous if “it lacks an arguable basis in either law or fact.”
Thompson v.
Gibson ,
Eidson’s apрeal is not based in law or fact. In regard to the conversion of his Rule 59(e) motion into a Rule 60(b) motion, he argues, “Surely there are exceptions to this 10-day rule for extenuating circumstаnces beyond our control, for example those of us in prison who do not have adequate or proper or even normal access to the courts.” In this case, therе are not. In addition, Eidson stands on the claims and arguments set forth in his Complaint and Rule 59(e) motion. The district court already dismissed the claims and denied the motion. Eidson’s reliance on arguments and facts that could not survive the earliest and easiest tests in the litigation process exemplifies the frivolity of this appeal. Eidson asserts no argument based in law or fact as to why we should reverse the district court’s orders. Therefore, we dismiss this appeal as frivolous.
CONCLUSION
Eidson’s civil claims against Appellants were properly dismissed because they failed to state a claim upon which relief could be granted and they were asserted against persons immune from monetary relief. Therefore, we affirm the district court’s dismissal of his claims.
In addition, we dismiss this аppeal as frivolous because none of the arguments asserted by Eidson are based in law or fact. We remind Eidson that the frivolity of this appeal counts as a strike against him under 28 U.S.C. § 1915(g) and that he is to continue to make partial payments until the fees incurred from the filing of his Complaint and this appeal are paid in full.
Entered for the Court Timothy M. Tymkovich Circuit Judge
Notes
[**] 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(G). The cause is therefore ordered submitted without oral argument.