Parker v. Crow ( 2023 )

Appellate Case: 22-6047 Document: 010110805274 Date Filed: 01/30/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 30, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
ALVIN PARKER,
Plaintiff - Appellant,
v. No. 22-6047
(D.C. No. 5:21-CV-01168-D)
SCOTT CROW, Director, Oklahoma (W.D. Okla.)
Department of Corrections,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Alvin Parker is a prisoner proceeding pro se1 in a 42 U.S.C. § 1983 action
against the Oklahoma Department of Corrections (ODOC). The district court,
adopting the recommendation of a magistrate judge, dismissed his claim for failure to
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Because Mr. Parker proceeds pro se, we construe his arguments liberally, but
we “cannot take on the responsibility of serving as [his] attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
Appellate Case: 22-6047 Document: 010110805274 Date Filed: 01/30/2023 Page: 2
pay the filing fee, concluding he was not eligible to proceed in forma pauperis
(“IFP”) because he was subject to the three-strikes provision of 28 U.S.C. § 1915(g)
and failed to satisfy the imminent danger exception to that provision.2 Mr. Parker
appeals, arguing the district court erred when it concluded he did not satisfy the
imminent danger exception. We have jurisdiction under 28 U.S.C. § 1291, but we
dismiss the appeal as frivolous under § 1915(e)(2)(B)(i).
In the underlying complaint he filed in December 2021, Mr. Parker alleged
ODOC unconstitutionally deprived him of access to the courts by failing to timely
pay his filing fee associated with a petition for certiorari in another case in July 2021.
He alleged this interference caused anxiety and migraine headaches and induced a
stroke in February 2021.
Mr. Parker also moved to proceed IFP. The magistrate judge recommended
denial of the IFP motion, concluding that the alleged stroke amounted to past harm,
which was insufficient to satisfy the imminent danger exception, and that there was
not a sufficient nexus between the alleged misconduct and Mr. Parker’s headaches.
The magistrate also stated Mr. Parker failed to “explain how a favorable outcome . . .
2
Section § 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.
2
Appellate Case: 22-6047 Document: 010110805274 Date Filed: 01/30/2023 Page: 3
would resolve health problems induced by an inability to petition for certiorari in a
prior case.” R. at 42.
Mr. Parker objected to the magistrate’s recommendation. In his objection, he
did not contest that he had already incurred three strikes, but he argued he satisfied
the imminent danger exception because he “presented support for his assertions that
[ODOC’s conduct] has and will cause strokes.” R. at 53 (internal quotation marks
omitted). He did not raise the issue of his alleged migraine headaches in his
objection.
The district court overruled the objection,
writ[ing] separately only to emphasize that, accepting the alleged fact that
[Mr. Parker] had a stroke in February 2021, it occurred before he attempted
to make the Supreme Court filing that is the subject of his current
Complaint, and it occurred long after an attempted Supreme Court filing in
2019 that was the subject of his prior civil rights case.
R. at 60. The court further concluded Mr. Parker did “not allege that [ODOC] was
engaged in any misconduct in December 2021 that would place [him] under
imminent danger of another stroke or any other serious physical injury.” Id. The
court therefore ordered Mr. Parker to pay the full filing fee within 30 days and stated
it would dismiss the action without prejudice if he failed to do so. Mr. Parker moved
for reconsideration, again focusing on his prior stroke and the possibility of another
in the future, and again making no argument related to his alleged migraine
headaches. The district court denied this motion.
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Appellate Case: 22-6047 Document: 010110805274 Date Filed: 01/30/2023 Page: 4
Mr. Parker then filed an amended complaint along with a motion for leave to
amend.3 After the expiration of the 30-day deadline from its prior order, the court
dismissed the action because Mr. Parker still had not paid the filing fee. Liberally
construing Mr. Parker’s pleadings, the court also considered the allegations in the
amended complaint, but it concluded they too failed to satisfy the imminent danger
exception.
Mr. Parker presents one argument on appeal: that the district court erred in
denying his IFP motion because he satisfied the imminent danger exception through
his allegations of ongoing anxiety and migraine headaches. This court follows the
firm waiver rule, under which “the failure to make timely objection to the
magistrate’s findings or recommendations waives appellate review of both factual
and legal questions.” Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
Mr. Parker did not raise the argument on which he now relies in his objections to the
magistrate judge’s recommendation, so he has waived appellate review of the
antecedent factual and legal questions. And because Mr. Parker clearly failed to
preserve his only appellate argument, we dismiss this appeal as frivolous.
See § 1915(e)(2)(B)(i) (“[T]he court shall dismiss the case at any time if the court
determines that . . . the . . . appeal . . . is frivolous . . . .”); Braley v. Campbell,
832 F.2d 1504, 1510 (10th Cir. 1987) (“An appeal is frivolous when the result is
3
Because Mr. Parker had not yet served his complaint, he did not need to seek
leave to amend it. See Fed. R. Civ. P. 15(a)(1)(A).
4
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obvious, or the appellant’s arguments of error are wholly without merit.” (internal
quotation marks omitted)). This dismissal serves as a strike under § 1915(g). We
also deny Mr. Parker’s motion to proceed IFP on appeal. See DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (“In order to succeed on [an IFP]
motion, an appellant must show . . . the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.”).
Entered for the Court
Bobby R. Baldock
Circuit Judge
5