ARROYO v. SEBES, 295 Fed.Appx. 923 (10th Cir. 2008)

Martin Vasquez ARROYO, Plaintiff-Appellant, v. Michael SEBES, Defendant-Appellee.

No. 08-3132.United States Court of Appeals, Tenth Circuit.
October 8, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Martin Arroyo, Larned, KS, pro se.

Page 924

Stephen N. Six, Attorney General for the State of Kansas, Topeka, KS, for Defendant-Appellee.

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.

ORDER AND JUDGMENT[*]

[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

After examining Plaintiff’s brief and the 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.

MONROE G. McKAY, Circuit Judge.

Pro se Plaintiff Martin Vasquez Arroyo appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim upon which relief may be granted. We review the court’s dismissal of his complaint de novo. See Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996).

In his complaint, Plaintiff alleges that Defendant committed perjury when testifying against Plaintiff, apparently in Plaintiffs criminal trial. However, “all witnesses enjoy absolute immunity from civil liability under § 1983 for their testimony in a prior trial.” Hunt v. Bennett, 17 F.3d 1263 (10th Cir. 1994) (citing Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)). We therefore agree with the district court that Plaintiffs § 1983 action did not state a claim on which relief could be granted, and we accordingly AFFIRM the district court’s dismissal of Plaintiff’s complaint.

We advise Plaintiff that the district court’s dismissal of his complaint for failure to state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g), and we remind him that, upon incurring three strikes, he will no longer be able to proceed in forma pauperis in a civil action in federal court unless he is “under imminent danger of serious injury,”28 U.S.C. § 1915(g). We also remind Plaintiff of his obligation to continue making partial payments until his filing fee has been paid in full.