Jones v. State of Kansas

FILED
United States Court of Appeals
Tenth Circuit
July 22, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOSEPH LEE JONES,
Plaintiff - Appellant,
v.
STATE OF KANSAS; SHAWNEE
COUNTY; TOPEKA POLICE
No. 14-3074
DEPARTMENT; SHAWNEE
(D.C. No. 5:12-CV-03229-SAC)
COUNTY JAIL; FNU LNU (1),
(D. Kan.)
Shawnee County Counselor;
ATTORNEY GENERAL OF
KANSAS; RICHARD ECKHART,
Shawnee County Counselor’s Office;
FNU LNU (2), Shawnee County Court
Clerk,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
*
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) 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judgment is not binding precedent except under the doctrines of law of the case,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.
Joseph Lee Jones alleges various government actors violated his federal
rights by mishandling his prison mail. See 42 U.S.C. § 1983. The district court
dismissed his amended complaint for failure to state a valid legal claim. Mr.
Jones appealed to this court, but we dismissed the appeal because it was untimely.
Mr. Jones also asked the district court to reconsider its ruling under Fed. R. Civ.
P. 60(b), but the district court declined to do so on the ground that Mr. Jones was
merely trying to relitigate the merits of his case and hadn’t identified the kind of
“exceptional circumstances” that are necessary for Rule 60(b) relief. See, e.g.,
Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006). Mr.
Jones then filed a second Rule 60(b) motion. The district court denied it for the
same reasons, and it is this denial Mr. Jones now asks us to undo.
That much we cannot do. Even construing Mr. Jones’s filings liberally, we
see no effort on his part to explain how, contrary to the district court’s ruling, his
request for post-judgment relief comports with Rule 60(b). Instead he pursues a
new legal theory in support of his mail-related claims — that the defendants
violated his rights of free speech rather than his rights to access the courts. But
as we have repeatedly held and the district court explained, Rule 60(b) motions
may not be used merely to advance new arguments that could have been presented
earlier in the litigation. See, e.g., Servants of the Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). Because Mr. Jones offers no reason to think he
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couldn’t have ventured his current arguments before the district court’s judgment,
we see no basis for reversing the district court’s denial of Rule 60(b) relief.
Separately, Mr. Jones asks for leave to proceed without prepayment of fees
on appeal. Although Mr. Jones is no longer in prison, he was when he initiated
this appeal and so the provisions of the Prison Litigation Reform Act apply. See
Brown v. Eppler, 725 F.3d 1221, 1229-30 (10th Cir. 2013). But under either the
PLRA or more generally applicable standards, Mr. Jones’s motion fails. No party
can proceed in forma pauperis without presenting nonfrivolous grounds for
appeal. E.g., Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005);
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Because Mr. Jones
doesn’t attempt to explain how the district court’s ruling runs afoul Rule 60(b),
we agree with the district court that his appeal is frivolous.
Mr. Jones’s ifp motion is therefore denied and this appeal is dismissed. Mr.
Jones is reminded he must pay his filing fee in full. Because Mr. Jones “brought”
this appeal while still a prisoner and because it must be dismissed as frivolous,
the three-strikes provision of the PLRA applies and requires us to assess a strike
against Mr. Jones. See 28 U.S.C. § 1915(g) (prohibiting ifp actions and appeals
by prisoners who have “on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an . . . appeal in a court of the United States that
was dismissed on the ground[] that it is frivolous.”). That is of course in addition
to the strike Mr. Jones previously incurred when the district court dismissed his
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complaint in this case for failure to state a claim. See id.; Jennings v. Natrona
Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If 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.”).
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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