Andrew J. Johnson v. Alan W. Spencer

25 F.3d 1057 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Andrew J. JOHNSON, Plaintiff-Appellant, v. Alan W. SPENCER, Defendant-Appellee. No. 93-8036. United States Court of Appeals, Tenth Circuit. June 6, 1994. Before MOORE, ANDERSON and KELLY, Circuit Judges.* ORDER AND JUDGMENT** PAUL KELLY, Jr., Circuit Judge. [1] Mr. Johnson, appearing pro se, appeals from the district court's dismissal of his civil rights complaint. Mr. Johnson seeks money damages, alleging that the Defendant, a police officer, testified falsely at his trial. The district court's order dismissing the action as factually frivolous under 28 U.S.C. Sec. 1915(d) was entered on July 20, 1993. Mr. Johnson neglected to file a timely notice of appeal, but we construe Mr. Johnson's opening brief, together with his pro se entry of appearance, both filed in this court on August 16, 1993, as the functional equivalent of a notice of appeal timely filed. See Smith v. Barry, 112 S.Ct. 678, 682 (1992); Fed.R.App.P. 3(c), 4(a)(1). Having said that, however, Mr. Johnson's lawsuit is based upon an indisputably meritless legal theory, Neitzke v. Williams, 490 U.S. 319, 327 (1989), because a testifying police officer is entitled to absolute immunity. Briscoe v. LaHue, 460 U.S. 325, 345 (1983). Dismissal was appropriate. [2] Mr. Johnson's motion to proceed in forma pauperis is GRANTED and the district court's judgment dismissing the complaint is AFFIRMED. Footnotes [-s] * After examining the briefs and 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); 10th Cir.R. 34.1.9. The cause therefore is ordered submitted without oral argument [-s-s] ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order. 151 F.R.D. 470 (10th Cir.1993)