Braun v. United States ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 19 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
CONRAD J. BRAUN,
Plaintiff-Appellant, No. 02-3252
v. (D.C. No. 00-CV-3487-GTV)
UNITED STATES OF AMERICA; N. (D. Kansas)
L. CONNER, Warden; and JOHN
HUNT, Unit Manager,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
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); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This is a pro se federal prisoner civil rights appeal. Before reaching the
merits of Appellant’s complaint, the district court found that he was a prisoner
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
with three strikes and no showing of imminent danger. Consequently, the court
denied Appellant’s motion for leave to proceed in forma pauperis and directed
him to pay the full district court filing fee. 28 U.S.C. § 1915(g) (2002) (prisoner
with “3-strike” filing history and no showing of imminent danger must pay full
filing fee in any civil action or appeal). The court then dismissed Appellant’s
appeal for lack of prosecution. Appellant then filed a motion in the district court
for leave to proceed ifp nunc pro tunc, asserting that § 1915(g) no longer
prevented him from proceeding ifp because he had been released from
confinement. The district court liberally construed the filing as a motion for
relief from final judgment and denied relief. Mr. Braun appeals to this court.
Appellant does not contest that when he filed his complaint with the district
court, he was a prisoner subject to § 1915(g)’s filing restrictions. We agree with
the district court that “[t]he fact that plaintiff was subsequently released does not
relieve him of the restriction imposed under § 1915(g) at that time[] and provides
no basis for granting plaintiff relief from the final judgment entered in this
action.” District Court Order at 2.
The decision of the trial court is AFFIRMED. We remind Appellant that
because his motion to proceed without prepayment of the appellate filing fee was
granted, he must make partial payments on court fees and costs previously
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assessed until such have been paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
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