Flute v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 25, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GARY FLUTE, SR.,
Plaintiff - Appellant,
v. No. 17-1401
(D.C. No. 1:17-CV-01717-LTB)
UNITED STATES OF AMERICA; MR. R. (D. Colo.)
HUSEBY, official & individual capacities;
MR. HUFNAGLE, official & individual
capacities; MR. D. TAYLOR, official &
individual capacities; MS. M. HOFFER,
official & individual capacities; MS.
DEBORAH DENHAM, official &
individual capacities,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Proceeding pro se,1 federal prisoner Gary Flute Sr. brought this action under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
*
After examining the appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument wouldn’t 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
isn’t binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App.
P. 32.1; 10th Cir. R. 32.1.
1
We liberally construe Flute’s pro se filings. But it’s not our role to act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
(1971). After a magistrate judge identified various deficiencies in his initial
complaint, Flute filed an amended one. The district court then screened Flute’s
amended complaint under 28 U.S.C. § 1915A(a) and sua sponte dismissed it as
legally frivolous under § 1915A(b)(1).2 Flute appeals.
We review a dismissal for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i) for
an abuse of discretion. Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003).
But it doesn’t appear that we have yet resolved whether we review a dismissal for
frivolousness under § 1915A(b)(1) under the same standard, or whether we instead
exercise de novo review. See Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000);
Robbins v. Cty. of Boulder, 592 F. App’x 710, 712 (10th Cir. 2014) (unpublished).
We need not resolve that question here; for the reasons discussed below, Flute’s
arguments fail under either standard.
Flute first argues that the magistrate judge erred in denying his request for
counsel. But Flute neither acknowledges that the district court denied his request as
premature nor challenges that characterization on appeal. Thus, he has waived any
challenge to that ruling. See Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366
2
The district court dismissed Flute’s amended complaint—which alleges
claims arising from a March 2015 incident report and subsequent disciplinary
proceedings—on October 13, 2017. On the same day, the district court also dismissed
Flute’s amended complaint in a separate action, which alleged claims arising from an
August 2015 prison-job reassignment. See Flute v. United States, No. 1:17-cv-01688-
LTB, slip op. at 6 (D. Colo. Oct. 13, 2017). The district court resolved these cases in
separate orders, see id.; Flute v. United States, No. 1:17-cv-01717-LTB (D. Colo.
Oct. 13, 2017), and Flute has appealed from both. Although Flute raises many of the
same arguments in both appeals, we follow the district court’s lead and resolve the
cases in separate orders issued on the same day. See Flute v. United States, No. 17-
1397 (10th Cir. Jan. 25, 2018).
2
(10th Cir. 2015) (“The first task of an appellant is to explain to us why the district
court’s decision was wrong.”).
True, Flute suggests that he later renewed his request for counsel when he
asked for extension of time to file his amended complaint. But he fails to provide a
precise record citation to support that assertion. See Fed. R. App. P. 28(a)(8)(A)
(requiring argument section of appellant’s opening brief to contain “appellant’s
contentions and the reasons for them, with citations to the . . . parts of the record on
which the appellant relies”); 10th Cir. R. 28.2(C)(2) (“For each issue raised on
appeal, all briefs must cite the precise reference in the record where the issue was
raised and ruled on.”). And our independent review of the record yields no such
request. Instead, it appears that Flute merely cited the magistrate judge’s initial
refusal to appoint counsel as a reason he needed additional time to prepare his
amended complaint. The magistrate judge apparently read Flute’s request for an
extension the same way we do; in denying Flute’s motion, the magistrate judge didn’t
address whether Flute was entitled to the appointment of counsel at that point. Thus,
we won’t address this question either. See Salt Lake Tribune Publ’g Co. v. Mgmt.
Planning, Inc., 454 F.3d 1128, 1142 (10th Cir. 2006) (declining to address issue that
district court didn’t rule on, even though parties fully briefed it below).
Next, Flute argues that the district court’s sua sponte decision to dismiss his
complaint violates the rule that courts must confine themselves to “the role of neutral
arbiter of [those] matters the parties present.” Greenlaw v. United States, 554 U.S.
237, 243 (2008). But Greenlaw’s actual holding—that an appellate court can’t “alter
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a judgment to benefit a nonappealing party,” id. at 244—doesn’t apply to, let alone
preclude, the district court’s actions here. On the contrary, the district court was
required by statute to screen Flute’s complaint and, if it determined that his claims
were frivolous, to dismiss it. See § 1915A(a), (b)(1).3 Thus, we reject this argument.
Finally, Flute asserts that the district court erred in overlooking his First
Amendment claim. At the outset, we note that Flute fails to provide any record
citations that might demonstrate he actually raised such a claim. We could decline to
reach this argument on that basis alone. See Fed. R. App. P. 28(a)(8)(A); Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (noting we routinely refuse to
consider arguments that fail to meet Rule 28’s requirements).
Alternatively, even if we exercised our discretion to consider this waived
argument, we would reject it on the merits. Flute’s amended complaint does
repeatedly reference (albeit without any elaboration or explanation) the First
Amendment. But to the extent Flute’s naked references to the First Amendment were
sufficient to put the district court on notice that he was raising one or more First
Amendment claims, those claims were premised on the same events that formed the
basis of what the district court instead construed as a due-process claim. And because
those events transpired more than two years before Flute filed his complaint, the
district court reasoned, any constitutional claims arising from them were time-barred.
3
Flute appears to be operating under the impression that the district court
dismissed his complaint under § 1915. But the district court instead dismissed his
complaint under a separate statute: § 1915A. Thus, Flute’s assertion that the district
court erred in “dispos[ing] of [his complaint] within the [§ 1915] framework,” Aplt.
Br. 5, necessarily fails.
4
Flute makes no effort to challenge this ruling on appeal. Thus, he fails to
demonstrate the alleged error prejudiced him. See Shinseki v. Sanders, 556 U.S. 396,
410 (2009) (explaining that “party seeking reversal normally must explain why the
erroneous ruling caused harm”). Whether the district court construed his claims as
arising under the Due Process Clause or the First Amendment is immaterial—either
way, the district court found Flute’s constitutional claims time-barred. And that
ruling stands unchallenged on appeal. See Reedy v. Werholtz, 660 F.3d 1270, 1275
(10th Cir. 2011) (“The argument section of [appellants’] opening brief does not
challenge the court’s reasoning on this point. We therefore do not address the
matter.”). Accordingly, any error in failing to recognize that Flute was asserting one
or more First Amendment claims was harmless. See 28 U.S.C. § 2111 (requiring us to
disregard errors that “do not affect the substantial rights of the parties”).
As a final matter, we must determine whether Flute may proceed in forma
pauperis (IFP) on appeal. Section 1915(g) generally bars a prisoner from proceeding
IFP if he or she has, on at least three “prior occasions,” filed an action or appeal “that
was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted.” And when Flute filed his notice of appeal in this
case, he had at least two strikes for purposes of § 1915(g). See Flute v. United States,
No. 1:17-cv-01688-LTB, slip op. at 6 (D. Colo. Oct. 13, 2017) (dismissing Flute’s
complaint as legally frivolous under § 1915A); Flute v. Ruehling, No. 08-cv-484-
MJR, 2009 WL 728570, at *3 (S.D. Ill. Mar. 18, 2009) (dismissing Flute’s complaint
under § 1915A and assessing strike); Hafed v. Fed. Bureau of Prisons, 635 F.3d
5
1172, 1175 (10th Cir. 2011) (holding that dismissal under § 1915A “counts as a
strike when the action was dismissed as frivolous, malicious, or for failure to state a
claim”).
Neither this court nor the Supreme Court has yet resolved whether the district
court’s order dismissing Flute’s complaint in this action constitutes a third strike that
would prohibit Flute from proceeding IFP in this appeal. See Coleman v. Tollefson,
135 S. Ct. 1759, 1765 (2015) (holding that prisoner who has accumulated at least
three strikes generally can’t proceed IFP “while his [or her] appeal of one such
dismissal is pending,” but declining to resolve whether prisoner can proceed IFP
“with respect to an appeal from a third qualifying dismissal”). We decline to resolve
that open question here. Even assuming we would answer it in a manner favorable to
Flute, we would nevertheless deny his IFP motion because he fails to demonstrate
“the existence of a reasoned, nonfrivolous argument on the law and facts in support
of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th
Cir. 1991). Thus, we deny Flute’s IFP motion, remind him that he must immediately
pay any remaining filing fees, dismiss the appeal as frivolous under
§ 1915(e)(2)(B)(i), and note that Flute now has at least three strikes for purposes of
§ 1915(g). See Hafed, 635 F.3d at 1175; cf. Jennings v. Natrona Cty. 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 [as frivolous], both dismissals count as
6
strikes.”), abrogated in part on other grounds by Coleman, 135 S. Ct. 1759.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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