Burnett v. Miller ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT January 15, 2013
Elisabeth A. Shumaker
Clerk of Court
STEPHEN CRAIG BURNETT,
Plaintiff - Appellant,
v. No. 12-7066
(D.C. No. 6:12-CV-00158-RAW-SPS)
KATHY MILLER; RAYMOND (E.D. Okla.)
LARIMER; NANCY COLPETZER;
MARK REIHELD,
Defendants – Appellees.
ORDER AND JUDGMENT*
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
Stephen Burnett, an Oklahoma state prisoner appearing pro se,1 seeks to appeal the
district court’s dismissal of his 28 U.S.C. § 1915(a) motion to proceed in forma pauperis
(“ifp”) in a civil rights action filed against prison officials regarding his medical care. We
* After examining Appellant=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) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. Burnett is proceeding pro se, we construe his pleadings liberally.
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). “[T]his rule of liberal
construction stops, however, at the point at which we begin to serve as his advocate.” Id.conclude that we lack jurisdiction to review the ifp denial and dismiss this appeal.
The district court denied leave to proceed ifp on the ground that Mr. Burnett had
accumulated three “strikes” under 28 U.S.C. § 1915(g). This provision strips prisoners of
the right to proceed ifp if the prisoner has previously filed three or more actions while
incarcerated that were dismissed as “frivolous, malicious, or [for failure to] state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). Mr. Burnett appeals, challenging whether
the cases cited by the district court were truly strikes under § 1915(g).
Title 28 U.S.C. § 1291 grants this court jurisdiction only over final decisions of a
district court. “A final decision is typically one by which a district court disassociates
itself from a case.” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 604-05 (2009)
(quotations omitted). Although the denial of a motion to proceed ifp is not a final
decision in the traditional sense, it is often appealable as a collateral order under the
Cohen doctrine. Lister v. Dep’t of Treasury, 408 F.3d 1309, 1310 (10th Cir. 2005); see
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). Cohen held that
appellate jurisdiction is appropriate for collateral rulings that are final in a practical, if not
a technical, sense. 337 U.S. at 545-46.
The Cohen collateral order doctrine applies in only a “small class” of cases. Id. at
546. The doctrine “must never be allowed to swallow the general rule that a party is
entitled to a single appeal, to be deferred until final judgment has been entered.”
Mohawk, 130 S. Ct. at 605 (quotations omitted). For an appellate court to review a
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collateral order under Cohen, “the challenged order must constitute a complete, formal,
and in the trial court, final rejection of a claimed right where denial of immediate review
would render impossible any review whatsoever.” Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 376 (1981) (citations omitted) (quotations omitted).
In Lister, this court explained that most denials of ifp motions fall under Cohen
because “[i]f a truly indigent claimant is not granted [ifp] status, [he] is barred from
proceeding at all in district court.” 408 F.3d at 1311. But the present case does not meet
this description. The record reflects that the $350 district court filing fee has now been
paid in full and that Mr. Burnett’s civil rights action is proceeding in district court. The
denial of the ifp motion has therefore not “barred [Mr. Burnett] from proceeding at all in
district court.” See id. As such, it does not fall under the Cohen doctrine, and we lack
jurisdiction to review it as a collateral order.
We therefore dismiss this appeal for want of jurisdiction. Mr. Burnett’s request to
proceed ifp on appeal is denied, and the remaining balance of the filing fee is due
immediately, payable to the District Court.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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