Arocho v. United States

FILED
United States Court of Appeals
Tenth Circuit
March 25, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
NORBERTO PEREZ AROCHO,
Plaintiff - Appellant, No. 13-1030
v. (D. Colorado)
UNITED STATES OF AMERICA; and (D.C. No. 1:12-CV-01579-LTB)
HARLEY G. LAPPIN, former Federal
Bureau of Prison Director,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Circuit Judge, and ANDERSON and TYMKOVICH,
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not 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This order and judgment is not binding precedent, except under the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. 32.1.
Plaintiff and appellant Norberto Perez Arocho, a federal prisoner
proceeding pro se, appeals the district court’s dismissal of his action under
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), on the ground that it
was frivolous or malicious. For the following reasons, we affirm.
Mr. Arocho’s general allegation is, as it has been throughout successive
proceedings before the district court and our court, that the failure to provide him
with medical treatment for his hepatitis, or the inadequate provision of such
treatment, violates his Eighth Amendment rights. He has named defendant
Harley G. Lappin, the former national director of the BOP, and the United States
as defendants in the instant action.
With respect to the United States as defendant, we note that Mr. Arocho has
not named the United States as a previous defendant. As the district court
explained, however, Mr. Arocho does not assert any specific claim for relief
against the United States, nor does he articulate any legal theory supporting such
a claim. Even construing his pleadings liberally, as we must, 1 his unsupported
appeal of his claim against the United States is surely frivolous. We now turn to
his remaining claim, against Mr. Lappin.
1
Because Mr. Arocho is proceeding pro se, we must construe his pleadings
liberally. We will not, however, act as his advocate. See United States v. Pinson,
584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point
at which we begin to serve as his advocate.”).
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As the district court further noted in its Order of Dismissal, Mr. Arocho
previously filed an action in the District of Colorado asserting the same Eighth
Amendment claim against Mr. Lappin, alleging that Mr. Lappin was personally
involved in Mr. Arocho’s failed or inadequate treatment. See Arocho v. Lappin,
No. 07-cv-02603-REB-KLM, 2011 WL 2358067 (D. Colo. June 10, 2011), aff’d,
461 Fed. Appx. 714 (10th Cir. 2012). 2 The district court in that case granted
summary judgment to defendant Lappin and dismissed with prejudice Mr.
Arocho’s Eighth Amendment claim against Mr. Lappin for lack of personal
jurisdiction. On appeal, our court affirmed the dismissal of Mr. Arocho’s claim
against Mr. Lappin for lack of personal jurisdiction, but remanded solely for the
district court to modify the judgment to be without prejudice. Arocho v. Lappin,
2012 WL 5689253 (10th Cir. Feb. 9, 2012).
In our decision in that case, we explained carefully and fully why Mr.
Arocho failed to demonstrate personal jurisdiction over Mr. Lappin. Moreover,
we explicitly stated that a dismissal for lack of personal jurisdiction is without
prejudice, so that Mr. Arocho could, assuming no other impediments to such a
filing, pursue an action against Mr. Lappin in a venue where there is personal
jurisdiction over Mr. Lappin. See id. at 719-20.
2
We note that the situation might be different were Mr. Arocho to allege
that a BOP policy enacted or enforced by Mr. Lappin caused his inadequate
treatment. But that is not what Mr. Arocho alleges.
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Accordingly, on April 6, 2012, an Amended Final Judgment was entered
indicating that Mr. Arocho’s claims against Mr. Lappin were dismissed without
prejudice. Mr. Arocho then commenced the instant action on June 18, 2012,
asserting the same Eighth Amendment claim against the same defendant
(Mr. Lappin).
In dismissing this action, the district court stated as follows:
“Repetitious litigation of virtually identical causes of action
may be dismissed under § 1915 as frivolous or malicious.” To
determine whether a pleading repeats pending or previously litigated
claims, the Court may consult its own records. The Court has
consulted its records and finds that the claim Mr. Arocho is asserting
against Defendant Lappin in the instant action is repetitive of the
claim he asserted against Defendant Lappin in 07-cv-02603-REB-
KLM. Mr. Arocho’s previous claim against Defendant Lappin in 07-
cv-02603-REB-KLM was dismissed without prejudice to being
refiled in a jurisdiction where Defendant Lappin is subject to
personal jurisdiction. However, rather than proceeding in a
jurisdiction where Defendant Lappin is subject to personal
jurisdiction, Mr. Arocho simply refiled the same claim in this Court.
Because Judge Blackburn already has determined that Mr. Arocho
may not pursue his Eighth Amendment claim against Defendant
Lappin in the District of Colorado, Mr. Arocho’s repetitive claim
against Defendant Lappin in this action will be dismissed as legally
frivolous and malicious.
Order of Dismissal at 3-4 (quoting McWilliams v. Colorado, 121 F.3d 573, 574
(10th Cir. 1997)) (further citations omitted).
The district court went on to explain why any Eighth Amendment or tort
action against the United States is barred by sovereign immunity or is time-
barred. The court accordingly dismissed Mr. Arocho’s complaint. It also
certified pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this order would
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not be taken in good faith and therefore in forma pauperis (“ifp”) status would be
denied for the purpose of appeal.
We generally review a district court’s dismissal for frivolousness under 28
U.S.C. § 1915 for abuse of discretion. Fogle v. Pierson, 435 F.3d 1252, 1259
(10th Cir. 2006). We see no abuse of discretion here; rather, we agree with the
district court that Mr. Arocho’s cause of action, as well as his appeal, is frivolous.
In his prior cause of action, the district court granted judgment to defendant
Lappin on the ground that it had no personal jurisdiction over Mr. Lappin and that
transfer to another forum was unwarranted. That situation still obtains with
respect to Mr. Arocho’s repetitious Eighth Amendment cause of action against
defendant Lappin in a Colorado federal district court. We accordingly affirm the
district court’s dismissal of his appeal, for substantially the reasons given by the
district court.
While the earlier dismissals of Mr. Arocho’s case were without prejudice, 3
and thus led to the instant action, the district court in this case did not specify
whether its dismissal of Mr. Arocho’s action as legally frivolous and malicious
was with or without prejudice. The court also did not specify whether its
3
As indicated, Mr. Arocho’s case was initially dismissed by the district
court without prejudice at the pleading stage. Our court reversed and remanded
the matter. Mr. Arocho’s action was then dismissed by the district court with
prejudice at the summary judgment stage. Our court affirmed that dismissal, but
stated that it should be without prejudice.
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dismissal should count as a strike for purposes of the “three strikes” rule of the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g). 4
Under that rule, a prisoner generally may not file a federal civil action or
appeal in a civil action without prepaying the filing fee if he has violated the
three strikes rule. “The three strikes rule generally requires a court to deny filing
without the prepayment of filing fees if three or more of a prisoner’s prior federal
civil actions or appeals were dismissed because they were frivolous, malicious, or
failed to state a claim for relief under applicable law.” Smith v. Veterans Admin.,
636 F.3d 1306, 1308 (10th Cir. 2011). We have, however, stated that “a dismissal
without prejudice counts as a strike, so long as the dismissal is made because the
action is frivolous, malicious, or fails to state a claim.” Id. at 1314 (quoting Day
v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (per curiam)). We accordingly
4
We note that “a dismissal cannot be counted as a strike against a prisoner
‘until he has exhausted or waived his appeals [in the prior action].’” Smith v.
Veterans Admin., 636 F.3d 1306, 1310 (10th Cir.), cert. denied, 132 S. Ct. 381(2011) (quoting Jennings v. Natrona Cnty Det. Ctr. Med. Facility, 175 F.3d 775,
780 (10th Cir. 1999)). Nonetheless, a “strike ripens to be counted[”]
from the date of the Supreme Court’s denial or dismissal of a petition
for writ of certiorari, if the prisoner filed one, or from the date when
the time to file a petition for writ of certiorari expired, if he did not.
And if the prisoner did not file a direct appeal in a circuit court, a
district court’s dismissal counts as a strike from the date when his
time to file a direct appeal expired.
Id. at 1310-11 (quoting Hafen v. Fed. Bureau of Prisons, 635 F.3d 1172, 1175
(10th Cir. 2011) (footnote omitted)).
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find that one strike before the district court and one strike before our court will
ripen into two strikes, once Mr. Arocho’s certiorari proceedings, if any, expire.
In short, we affirm the district court’s dismissal of this action, we deny
Mr. Arocho’s request to proceed on appeal ifp, and we direct him to pay the entire
$455.00 filing fee forthwith. We caution Mr. Arocho that, should he continue to
file repetitious, frivolous pleadings, we may impose filing sanctions, in addition
to imposing strikes under the PLRA.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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