Wardell v. Department of Corrections

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 14 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
WENDEL ROBERT WARDELL,
Plaintiff-Appellant,
v.
No. 03-1039
DEPARTMENT OF CORRECTIONS; (District of Colorado)
JOSEPH G. ORTIZ; GARY D. NEET; (D.C. No. 02-Z-2341)
DONICE A. NEAL; ANDREA
HYATT; JOHN HYATT; CATHIE
HOLST; BRADLEY ROCKWELL,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining appellant’s brief and the appellate record, this court 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This order and judgment is not binding precedent, except under the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.
Proceeding pro se, Wendel R. Wardell, Jr. appeals the district court’s
dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983.
Wardell also seeks permission from this court to proceed in forma pauperis on
appeal.
In his complaint, Wardell alleged that defendants have denied him his
constitutional right to access the courts. The district court concluded that
Wardell’s complaint was frivolous and dismissed it sua sponte pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). We review the dismissal of a complaint pursuant to
28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. 1
See Schlicher v.
Thomas , 111 F.3d 777, 779 (10th Cir. 1997). Like the district court, we note that
Wardell has not alleged any fact “demonstrat[ing] that the alleged shortcomings
in the library or legal assistance program hindered his efforts to pursue a legal
claim.” Lewis v. Casey , 518 U.S. 343, 351, 354-55 (1996) (holding further that
the legal claim affected must be one that either directly or collaterally attacks
plaintiff’s conviction or sentence, or one that challenges the conditions of his
confinement). We reject Wardell’s argument that he is under no obligation to
1
This court has indicated in an unpublished disposition that changes
in the PLRA may now dictate that determinations of frivolousness under
§ 1915(e)(2)(B)(i) are subject to a de novo standard of review. Basham v. Uphoff,
No. 98-8013, 1998 WL 847689, at *4 n.2 (10th Cir. Dec. 8, 1998) (unpublished
disposition). It is unnecessary to resolve this question here because there is no
reversible error under either standard.
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allege sufficient facts in his complaint to support his claim. We further note that
Wardell does not contend on appeal that the district court should have provided
him with an opportunity to amend his complaint and Wardell did not file a
motion to alter or amend the judgment under Rule 59(e) or for relief from the
judgment under Rule 60(b) after his complaint was dismissed. See Curley v.
Perry , 246 F.3d 1278, 1284 (10th Cir. 2001) (discussing post-judgment
procedural safeguards available to litigants whose complaints have been
dismissed sua sponte pursuant to § 1915(e)(2)).
In light of the district court’s clear and concise order and the absence of
any reasoned argument in Wardell’s appellate brief, this court concludes that
Wardell’s appeal is frivolous. Because Wardell’s appeal is frivolous, his motion
to proceed in forma pauperis is denied and his appeal is dismissed under 28
U.S.C. § 1915(e)(2)(B)(i).
The district court’s dismissal of Wardell’s complaint counts as a strike for
purposes of 28 U.S.C. § 1915(g). Our dismissal of Wardell’s appeal also counts
as a strike for purposes of 28 U.S.C. § 1915(g). Thus, Wardell has now
accumulated two strikes under 28 U.S.C. § 1915(g). See Jennings v. Natrona
County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). Wardell is
hereby warned that if he accrues one more strike, he will be precluded from
proceeding in forma pauperis in any further civil proceedings unless he is under
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“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Wardell is
further notified that despite this court’s dismissal of his appeal, he remains
obligated to continue making partial payments until his appellate filing fee is
paid in full. See id. § 1915(b).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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