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Farmer v. Raemisch

Court of Appeals of Colorado, Seventh Division

January 2, 2014

D. Thomas Farmer, Plaintiff-Appellant,
v.
Rick Raemisch, in his official capacity as Executive Director of the Colorado Department of Corrections; and Travis Trani, Defendants-Appellees

Fremont County District Court No. 12CV153. Honorable Julie G. Marshall, Judge.

D. Thomas Farmer, Pro se.

No Appearance for Defendants-Appellees.

Opinion by JUDGE J. JONES. Fox and Navarro, JJ., concur.

OPINION

Page 395

J. JONES, JUDGE.

[¶1] Plaintiff, D. Thomas Farmer, a state inmate, appeals the district court's order and judgment dismissing his civil complaint for failure to pay a filing fee. We affirm.

I. Background

[¶2] Mr. Farmer's complaint alleged (repeatedly, invoking a variety of legal theories) that on a particular date unnamed prison employees had used excessive force against him, causing him various physical and psychological injuries, for which he sought damages. He did not describe the physical force or the circumstances surrounding the incident. He named Tom Clements, the former Executive Director of the Colorado Department of Corrections, and Travis Trani, the prison warden, as defendants.[1]

[¶3] Mr. Farmer's complaint included a request that he be allowed to proceed in forma pauperis, and, therefore, as relevant here, without prepayment of the filing fee applicable to civil cases. (He did not, however, complete the appropriate paperwork to show that he qualified for in forma pauperis status.) The district court issued an order denying Mr. Farmer's request to be allowed to proceed without prepaying the filing fee. The court determined that on three prior occasions, civil complaints filed by Mr. Farmer had been dismissed as frivolous, groundless, or malicious, or for failure to state a claim upon which relief could be granted, or because they sought monetary relief from persons immune from such liability; therefore, pursuant to section 13-17.5-102.7, C.R.S. 2013, Mr. Farmer was ineligible to proceed without prepayment of the civil case filing fee. The court ordered Mr. Farmer to pay the filing fee within twenty days lest his complaint be dismissed.

[¶4] Mr. Farmer filed a motion for reconsideration. Therein he asserted the following three arguments: (1) previous dismissals for failure to exhaust administrative remedies did not qualify as dismissals for purposes of section 13-17.5-102.7; (2) the prior dismissals should not be counted against him because he had not been allowed to amend the dismissed complaints; and (3) applying section 13-17.5-102.7 in this case would deny him his right to access to the courts as guaranteed by the United States Constitution. The district court denied Mr. Farmer's motion and, because Mr. Farmer had not paid the filing fee, dismissed the complaint.

II. Discussion

A. Unpreserved Contentions

[¶5] Mr. Farmer presents several contentions on appeal that he did not raise in the district court. These include, as best we can tell, arguments that section 13-17.5-102.7 denies him his right to free speech, due process, and equal protection of the laws, as well as arguments that, though captioned as separate contentions, actually relate to the unpreserved constitutional challenges. Because he did not raise any of these arguments in the district court, we will not consider them. See Estate of Stevenson v. Hollywood Bar & Café, Inc., 8 ...


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