Filed: Jul. 24, 2019
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 24, 2019 _ Elisabeth A. Shumaker Clerk of Court PETER MARIO GOICO, Plaintiff - Appellant, v. No. 19-3116 (D.C. No. 6:19-CV-01055-JTM-GEB) STATE OF KANSAS, (D. Kan.) Defendant - Appellee. _ ORDER AND JUDGMENT* _ Before CARSON, BALDOCK, and MURPHY, Circuit Judges. _ In March 2019, Plaintiff Peter Goico filed a complaint against the State of Kansas, alleging the State’s “attempts” to legaliz
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 24, 2019 _ Elisabeth A. Shumaker Clerk of Court PETER MARIO GOICO, Plaintiff - Appellant, v. No. 19-3116 (D.C. No. 6:19-CV-01055-JTM-GEB) STATE OF KANSAS, (D. Kan.) Defendant - Appellee. _ ORDER AND JUDGMENT* _ Before CARSON, BALDOCK, and MURPHY, Circuit Judges. _ In March 2019, Plaintiff Peter Goico filed a complaint against the State of Kansas, alleging the State’s “attempts” to legalize..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 24, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
PETER MARIO GOICO,
Plaintiff - Appellant,
v. No. 19-3116
(D.C. No. 6:19-CV-01055-JTM-GEB)
STATE OF KANSAS, (D. Kan.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
_________________________________
In March 2019, Plaintiff Peter Goico filed a complaint against the State of
Kansas, alleging the State’s “attempts” to legalize marijuana are unconstitutional. The
district court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A(b) because the action was frivolous, i.e., “lack[ed] an arguable basis either in
law or in fact.” ROA, 70 (quoting Neitzke v. Williams,
490 U.S. 319, 325 (1989)). The
court explained that federal courts do not have the power to preempt prospective
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
legislation.
Id. at 70–71 (citing McChord v. Cincinnati, New Orleans, & Tex. Pac. Ry.
Co.,
183 U.S. 483, 496 (1902)). Plaintiff’s claim rested upon “pure speculation of
future legislation” and, thus, Plaintiff was impermissibly seeking “an advisory opinion
as to whether future legislation would be preempted by various constitutional rights.”
Id. (quotations omitted). Thus, the district court dismissed Plaintiff’s action.
On appeal, Plaintiff argues his complaint challenged, not only future
legislation, but also a law that was indeed passed in 2016 that lowered the penalties for
possession of marijuana. While Plaintiff mentioned the governor of Kansas was
“trying to lower penalties” in his complaint, Plaintiff was clearly challenging the
“attempts” to “legalize marijuana”—not lowering penalties for possession of
marijuana. ROA, 7 (“I always believed that marijuana legalization was a problem, but
now the unconstitutional attempts to do so are threatening a direct financial injury to
me.”);
id. (challenging “state level laws that legalize marijuana”);
id. (“Kansas
Governor, Laura Kelly, has become the latest to announce her intentions to legalize
Marijuana . . . .”);
id. at 8 (“I can prove that my state’s unconstitutional attempts to
legalize a dangerous substance are directly threatening me.”). Any effort to change
course and now challenge the 2016 law—something neither argued nor ruled upon
below—is waived. See United States v. Kearn,
863 F.3d 1299, 1313 (10th Cir. 2017).
To the extent Plaintiff argues he is able to challenge potential future legislation, the
district court was correct in its holding. We have nothing further to add to the court’s
discussion, except to point out to Plaintiff that the place to engage in the political
process is with his state legislature, not with this Court.
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Plaintiff also argues the district court erred in its holdings on anonymity.
Plaintiff sought to seal the record or proceed anonymously multiple times before the
district court. These motions were rejected because Plaintiff’s mental condition “was
not sufficiently embarrassing to warrant the extraordinary remedy of maintaining the
action anonymously” and because Plaintiff’s “condition was not logically linked to the
merits of the action.” We have previously stated:
Lawsuits are public events. A plaintiff should be permitted to proceed
anonymously only in those exceptional cases involving matters of a
highly sensitive and personal nature, real danger of physical harm, or
where the injury litigated against would be incurred as a result of the
disclosure of the plaintiff’s identity. The risk that a plaintiff may suffer
some embarrassment is not enough.
Femedeer v. Haun,
227 F.3d 1244, 1246 (10th Cir. 2000) (quoting Doe v. Frank,
951
F.2d 320, 324 (11th Cir. 1992)). We agree with the district court that this is not an
exceptional case that warrants anonymity. Accordingly, the district court did not err
in denying Plaintiff’s request for anonymity.
AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
3