Guy v. DOD , 574 F. App'x 853 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT September 9, 2014
___________________________________
Elisabeth A. Shumaker
Clerk of Court
RICHARD GENE GUY, et al. Class
Action,
Plaintiff-Appellant,
v. No. 14-2046
UNITED STATES DEPARTMENT OF (D.C. No. 12-CV-01225-MV-RHS)
DEFENSE, (DOD); UNITED STATES (D.N.M.)
ARMY MEDICAL CORPS, Camp Arifjon,
Ku; UNITED STATES DEPARTMENT
OF LABOR, Overseas Labor in War
Zones; FEDERAL DEFENSE ACT, d/b/a
WARTIME COMPENSATION FOR
INJURIES; AMERICAN
INTERNATIONAL GROUP
INSURANCE CORPORATION, A.I.G.,
d/b/a UNDERWRITER; KELLOG,
BROWN, ROOT, K.B.R., “Total Force”
Iraq Logcap Contractor;
INTERNATIONAL AMERICAN
PRODUCTS, I.A.P., (K.B.R. Subcontractor
Supply Convoys, Iraq),
Defendants-Appellees.
____________________________________
ORDER AND JUDGMENT*
____________________________________
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.**
*
This order and judgment is not binding precedent, except under the doctrines of law of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 the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist the determination of this appeal. See Fed.
____________________________________
Plaintiff Richard Gene Guy, appearing pro se, is no stranger to the federal court
system.1 Between March 2008 and September 2012 Guy filed at least 7 lawsuits against
the United States and various federal agencies and contractors. All have been dismissed,
many with prejudice. One would think that after so much experience, Guy might have
learned to avoid bringing frivolous actions. Not so. Instead, the audacity of Guy’s filings
appears to have increased over time. Exercising jurisdiction under 28 U.S.C. § 1291, we
dismiss this current appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and deny
Guy’s pending motion to proceed in forma pauperis (“IFP”) because this appeal was
clearly taken in bad faith. We also make clear that, because Guy now has at least three
strikes for purposes of 28 U.S.C. § 1915(g), he may not proceed IFP in any future federal
lawsuits, unless they involve “imminent danger of serious physical injury.”
I.
Before he began abusing the courts, Guy apparently went to great lengths to evade
them. In March 2005, Guy was indicted by a State grand jury in Las Cruces, New
Mexico on seven counts of tax evasion and ten counts of fraud. A warrant for Guy’s
arrest was issued on April 6, 2005. But Guy had by then left the United States and
secured work in Kuwait for a contractor involved in supporting the United States military
in the Middle East. On April 13, 2005, the State of New Mexico sought the assistance of
R. App. P. 34(a); 10th Cir. R. 34.1. The case therefore is ordered submitted without oral
argument.
1
We construe a plaintiff’s pro se filings liberally. See Garza v. Davis, 596 F.3d 1198,
1201 (10th Cir. 2010).
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the United States Marshals Service (“USMS”) in Las Cruces in apprehending Guy so that
he could face trial in New Mexico. During the course of its efforts to locate Guy, the
USMS learned he was in Kuwait City. Upon learning of the outstanding indictment and
warrant for Guy’s arrest, the U.S. Embassy confiscated Guy’s passport. In February
2007, the USMS learned Guy was under investigation by the United States Army
Criminal Investigation Division (“CID”), and by Kuwaiti officials—including the
Kuwaiti Minister of the Interior (“KMI”)—for fraud. The KMI determined Guy was in
violation of Kuwaiti immigration law and would be deported. Kuwaiti officials, not U.S.
Marshals, took Guy into custody and placed him in a Kuwait detention facility. Later in
2007, Guy was brought back to New Mexico, where he has remained incarcerated.
Guy apparently began abusing the courts in 2008. He filed two federal lawsuits
that year: He first sued three U.S. Marshals allegedly involved in bringing him back to
New Mexico, the assistant district attorney who prosecuted him, and the District
Attorney. See Guy v. Northcutt, No. 08-CV-347 (D.N.M. filed June 1, 2009). He then
sued the Doña Ana County Detention Center and its officers alleging violations of his
constitutional rights. See Guy v. Dona Ana Cnty. Detention Ctr., No. 08-CV-706
(D.N.M. filed Dec. 16, 2009). Both suits were dismissed with prejudice. In 2010, Guy
filed another lawsuit against Doña Ana County Detention Center, which was dismissed
after he refused to make partial payments toward his filing fees. See Guy v. Dona Ana
Cnty. Detention Ctr., No. 10-CV-753 (D.N.M. filed May 25, 2011). In July 2012 Guy
filed back-to-back lawsuits. On July 9, he filed a federal habeas petition that initially
included claims for civil rights violations as well as habeas relief. After Guy voluntarily
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dismissed his civil-rights claims, the Court dismissed his habeas petition because he
“failed to exhaust his state remedies before filing his federal habeas petition.” See Guy v.
Garcia, No. 12-CV-0742 (D.N.M. filed July 10, 2013). On July 10, Guy filed a separate
federal prison-conditions suit erroneously labeled a “habeas petition.” The district court
ultimately dismissed all of the claims in this suit either for failure to state a claim or for
failure to exhaust administrative remedies. See Guy v. NM Dep’t of Corr., No. 12-CV-
774 (D.N.M. filed July 10, 2013). Guy did not appeal any of these dismissals.
Unfortunately, the above lawsuits are neither the only nor the most egregious
examples of Guy’s pattern of frivolous litigation. This appeal began with a complaint
entitled “Federal Tort Claims Lawsuit” and a motion to proceed IFP that Guy filed in the
D.C. District Court in September 2012. The D.C. District Court then transferred the suit
to New Mexico citing improper venue. See Guy v. U.S. Department of Defense, No. 12-
CV-1520 (D.D.C. filed Oct. 26, 2012). At first blush, one might think this suit was just
another run-of-the-mill frivolous lawsuit that Guy filed based on a good faith but
mistaken belief that the District of D.C. was the proper venue for a lawsuit against the
United States and U.S. contractors. Not so. In fact, Guy had already filed in New
Mexico District Court essentially the same federal suit, based on the same allegations,
against the same defendants he has sued in the case at bar—in January 2011. The New
Mexico District Court had dismissed this complaint for failure to state a claim on which
relief could be granted and, although Guy initially appealed that decision, we dismissed
the appeal for failure to prosecute. See Guy v. A.I.G., No. 11-CV-0063 (D.N.M. filed
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Feb. 15, 2011) (dismissing suit); No. 11-2047 (10th Cir. filed July 13, 2011) (dismissing
appeal).
After the D.C. District Court transferred this latest suit, the New Mexico District
Court screened the case pursuant to 28 U.S.C. § 1915A and dismissed it as frivolous
under § 1915(e)(2), citing the dismissal of Guy’s January 2011 suit. The district court
also ordered Guy to show cause why he should not be sanctioned for his abusive filings.
Guy responded by 1) restating portions of his complaint, 2) apologizing for his legal
ignorance, 3) blaming his actions on mental and physical illness, and 4) stating off-
handedly that the Prison Litigation Reform Act (“PLRA”) is unconstitutional.
Unpersuaded, the district court entered an order imposing filing restrictions on Guy.
These restrictions—which are based on the filing restrictions we sua sponte imposed on
an abusive litigant in DePineda v. Hemphill, 34 F.3d 946, 948 (10th Cir. 1994) (per
curiam)—prohibit Guy from filing any further actions in federal court unless he is
represented by an attorney or requests and receives permission to proceed pro se. Guy
then appealed. He also moved in the district court for leave to appeal IFP. The district
court denied this motion as not taken in good faith based on his failure to assert any
nonfrivolous grounds for appeal.
II.
We must dismiss Guy’s appeal if we determine the appeal is frivolous. 28 U.S.C
1915(e)(2)(B)(i). Furthermore, federal law states that “[a]n appeal may not be taken in
forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28
U.S.C. 1915(a)(3). Nevertheless, we have held “a party who seeks in forma pauperis
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status and is certified by the district court as not appealing in good faith may . . . move
this court for leave to proceed on appeal in forma pauperis pursuant to the mechanism set
forth in Rule 24(a)(5).” Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079
(10th Cir. 2007). “To do so, however, the appellant must show not only ‘a financial
inability to pay the required filing fees,’ but also ‘the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on appeal.’”
Crownhart v. Muller, No. 14-1281, 2014 WL 4251610 at *2 (10th Cir. Aug. 29, 2014)
(quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)).
Guy has not met this requirement. Specifically, even construing his brief liberally,
Guy has failed to show the existence of a reasoned, nonfrivolous argument in either law
or fact to support the issues he raises on appeal. Guy first asserts, in conclusory fashion,
that the district court erroneously dismissed his claim as frivolous. In support he simply
reasserts conclusory allegations from his complaint. Furthermore, he nowhere confronts
the fact that this suit is essentially identical to one he filed in 2011, the dismissal of which
he failed to properly appeal. Second, he asserts, “forbidding a litigant to file lawsuits
without an attorney’s assistance has been held overbroad.” But Guy has not been barred
from filing pro se lawsuits altogether. Rather, before he files another pro se federal suit,
he need only obtain permission to do so. The district court’s filing restrictions are
entirely consistent with our decision in DePineda, where we sua sponte imposed
appellate sanctions on an abusive plaintiff’s “future filings in this court ‘commensurate
with our inherent power to enter orders “necessary or appropriate” in aid of our
jurisdiction’ under 28 U.S.C. § 1651(a).” DePineda, 34 F.3d at 947 (quoting 28 U.S.C. §
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1651(a)). Guy fails to give any nonfrivolous reason why he should not be similarly
sanctioned. We therefore agree this appeal is not taken in good faith. Accordingly, Guy
may not proceed IFP. See Rolland, 497 F.3d at 1079. Moreover, because Guy’s appeal
is wholly frivolous, we must dismiss it. 28 U.S.C. § 1915(e)(2)(B)(i).
III.
Because the district court dismissed Guy’s lawsuit as frivolous and we likewise
dismiss his appeal as frivolous, we must also address the issue of “strikes” under the
PLRA. “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 . . . 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)). Once a prisoner obtains three strikes, he
must “prepay the entire filing fee before federal courts may consider [his] civil actions
and appeals.” Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir. 2001) (quotation
omitted).
There are a number of ways a prisoner may obtain a strike, but only two are
relevant here. First, “[w]hen an action or appeal is dismissed as frivolous, as malicious,
or for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B), the dismissal counts as a
strike,” once the litigant has exhausted or waived his appeals. Hafed, 635 F.3d at 1176.
Second, “[i]f we dismiss as frivolous the appeal of an action the district court dismissed
under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.” Jennings v. Natrona
Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999).
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Under these two means alone, Defendant has by now acquired at least three PLRA
strikes.2 The first, as the district court pointed out, accrued when the district court
dismissed Guy’s suit in case number 11-CV-0063 for failure to state a claim and Guy
waived his appeal by failure to prosecute. The second occurred when the district court
dismissed the instant suit as frivolous. Third, and finally for purposes of the PLRA, we
here dismiss as frivolous Guy’s appeal from the district court’s dismissal of the instant
suit.
Accordingly, Guy’s motion for leave to proceed IFP is DENIED and his appeal is
DISMISSED as frivolous under 1915(e)(2)(B)(i). Guy also now has three PLRA strikes
and may not proceed IFP in any future federal lawsuits unless he is under “imminent
danger of serious physical injury.” 28 U.S.C. § 1915(g). Finally, Guy is reminded that
he must make immediate payment of the unpaid balance of his appellate filing fee in this
case.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
2
The district court in a footnote seems to indicate that the dismissals of some of Guy’s
other suits also count as PLRA strikes, but the court’s language is not a model of clarity.
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