Salary v. Cardona , 597 F. App'x 543 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 17, 2015
Elisabeth A. Shumaker
Clerk of Court
MARK T.J. SALARY,
Plaintiff - Appellant,
v. No. 14-3170
(D.C. No. 5:13-CV-03046-SAC)
ALICIA CARDONA, Psychiatrist, (D. Kan.)
Lansing Correctional Facility; HOWARD
ANDERSON, Mental Health
Professional, Lansing Correctional
Facility; CHERI JAYNES, TRU Program
Manager, Lansing Correctional Facility;
HILARY VAN PATTEN, Psychiatrist,
Norton Correctional Facility; DAVID R.
McKUNE, Warden, Lansing Correctional
Facility; RAY ROBERTS, Secretary of
Corrections,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.
*
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)(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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellant Mark T. Salary is a prisoner of the State of Kansas appearing pro se.
He appeals from the district court’s order dismissing his civil rights complaint filed
under 42 U.S.C. § 1983 for failure to state a claim, subsequent to preliminary
screening under 28 U.S.C. § 1915A. The court reasoned that appellant’s complaint
failed to allege the personal participation of the defendants in the alleged violation of
his constitutional rights, and appellant had failed to explain the personal participation
of each defendant after being ordered to do so. The district court granted appellant’s
motion for leave to proceed on appeal in forma pauperis (IFP).
Because appellant is pro se, we afford his pleadings a liberal construction.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). His conclusory
argument on appeal that he had set forth the personal participation of each defendant
in his complaint lacks arguable merit, and we therefore dismiss the appeal as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). And because appellant does not
present a non-frivolous argument on appeal, we also revoke the district court’s grant
of leave to proceed IFP on appeal. See DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991). As explained below, we also assess two “strikes” under the Prison
Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). In addition, we have reviewed
appellant’s other dismissals and conclude that he accumulated three strikes as of
November 13, 2014.
“Under the PLRA, prisoners obtain a ‘strike’ against them for purposes of
future ifp eligibility when their ‘action or appeal in a court of the United States . . .
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was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted. . . .’” Hafed v. Fed. Bureau of Prisons, 635 F.3d
1172, 1176 (10th Cir. 2011) (quoting 28 U.S.C. § 1915(g)). The district court’s
dismissal of appellant’s complaint in this case for failure to state a claim constitutes a
strike. See id. Our dismissal of this appeal as frivolous constitutes a second strike.
See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.
1999). When prisoners accumulate three strikes, they must “prepay the entire filing
fee before federal courts may consider their civil actions and appeals.” Id. (internal
quotation marks omitted). The “only exception” to the prepayment requirement in
§ 1915(g) is where a prisoner who has accrued three strikes has raised “a credible
allegation that he is in imminent danger of serious physical harm.” White v.
Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998).
Having reviewed appellant’s other dismissals, we conclude that he previously
accrued a strike when the district court dismissed his complaint as legally frivolous in
Salary v. United States Government, D.C. No. 5:14-cv-03067-SAC-DJW. The
district court entered its dismissal on June 6, 2014, and appellant did not appeal that
dismissal to this court, so it ripened to be counted as a strike on August 5, 2014,
when his sixty days to appeal to this court expired. See Hafed, 635 F.3d at 1178;
see also Fed. R. App. P. 4(a)(1)(B)(i) (allowing sixty days to appeal when the United
States is a party).
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This court has also twice previously advised appellant that he had acquired
strikes under § 1915(g). See Salary v. U.S. Gov’t, 575 F. App’x 826, 827 (10th Cir.
2014) (assessing one strike upon affirming the district court’s order dismissing the
complaint in D.C. No. 5:14-cv-03061-SAC); Salary v. Goff, 572 F. App’x 668, 670
(10th Cir. 2014) (assessing one strike upon affirming the district court’s order
dismissing the complaint in D.C. No. 5:13-cv-03052-SAC). Appellant was allowed
ninety days in which to file a petition for writ of certiorari with the Supreme Court,
see S. Ct. R. 13.1, but he did not file a petition for writ of certiorari in either of those
cases. Our affirmance in Salary v. United States Government was entered on
August 11, 2014, so the strike assessed in that case counted against appellant as of
November 10, 2014. See Hafed, 635 F.3d at 1176 (“We now clarify that a strike
counts against a prisoner from the date of the Supreme Court’s denial or dismissal of
a petition for writ of certiorari, if the prisoner filed one, or from the date when the
time to file a petition for writ of certiorari expired, if he did not.”). Our affirmance in
Salary v. Goff was entered on July 24, 2014, and we denied appellant’s timely
petition for rehearing on August 15, 2014. The time to file a petition for writ of
certiorari with the Supreme Court runs from the denial of a timely petition for
rehearing. United States v. Hurst, 322 F.3d 1256, 1259 (10th Cir. 2003). As a result,
the strike in Salary v. Goff counted against appellant as of November 13, 2014.
Appellant accumulated his third strike and “struck out” under § 1915(g) on
November 13, 2014. His prior three strikes do not apply to the appeal before us
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because it was filed before November 13, 2014. See Hafed, 635 F.3d at 1175
(indicating that a prisoner is barred from proceeding IFP if “he had three strikes
countable in this court at the time he filed” his appeal). But appellant may not
proceed IFP in any federal action or appeal, other than habeas, filed after
November 13, 2014, but must prepay the filing fee in full in order to proceed, unless
he satisfies the “imminent danger” exception in § 1915(g).
This appeal is dismissed as frivolous. The district court’s grant of IFP for
appeal is revoked, and appellant is directed to immediately pay the entire $505.00
filing fee for this appeal.
Entered for the Court
John C. Porfilio
Circuit Judge
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