United States Court of Appeals
UNITED STATES COURT OF APPEALS April 16, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
v. No. 07-6191
(D.C. No. CIV 07-00229-F)
UNITED STATES MARSHAL; LT. (W.D. Okla.)
MOSES, also known as Lt. Moseley,
Plaintiff-Appellant, No. 07-6230
(D.C. No. CIV 07-331-F)
v. (W.D. Okla.)
R. PARTYKA, Dr.; JOE KEFFER,
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and McCONNELL, 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) 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order and judgment is not binding precedent, except under the doctrines of law of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.
Plaintiff-Appellant Frederick Banks, a federal prisoner appearing pro se,
appeals from two district court decisions dismissing, pursuant to 28 U.S.C. §
1915(e)(2)(B), his host of claims. We have consolidated Mr. Banks' two appeals
for purposes of disposition and exercise jurisdiction under 28 U.S.C. § 1291. In
appeal No. 07-6191, Mr. Banks asserts that the district court erred in dismissing
his claims, brought under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388
(1971), the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking damages
and injunctive relief for various alleged violations of Mr. Banks' constitutional
and statutory rights. In appeal No. 07-6230, Mr. Banks maintains that the district
court erred in dismissing a series of FOIA, Privacy Act, and constitutional claims
against certain employees of the Butner Federal Correctional Complex in North
Carolina ("Butner"). For substantially the same reasons that the magistrate
judges delineated and the district court adopted, we deny Mr. Banks' motions to
proceed in forma pauperis ("IFP") and dismiss his appeals.
The genesis of Mr. Banks' two appeals is his confinement, from December
28, 2006 to February 14, 2007, in the segregated housing unit (SHU) at Butner,
and his eventual transfer first to the Federal Transfer Center in Oklahoma City,
Oklahoma, and finally on to his current correctional facility in Yazoo City,
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Mississippi. Apparently, Mr. Banks' initial placement in the SHU stemmed from
accusations that he was stalking his prison psychologist, Defendant-Appellee
Partyka. Mr. Banks, however, alleges that he was confined in the SHU without
being charged or given an incident report. While in the SHU, Mr. Banks claims,
the prison staff there shredded requests he made to the staff and mocked poetry he
wrote to Partyka. In addition, Mr. Banks alleges that a Lt. Moses was in charge
of the SHU and that Moses, spurred by racial animus, also put Mr. Banks'
requests in the rubbish.
Moreover, Mr. Banks maintains that while in transit from Butner to his
current facility in Yazoo City, he requested, under FOIA and the Privacy Act, that
Defendant-Appellee Joe Keffer provide him all records relating to his transit
order. Mr. Banks asserts that he received no records from Keffer. In addition,
Mr. Banks claims that he propounded similar requests to the Defendant-Appellee
U.S. Marshal in Oklahoma City. These requests also netted Mr. Banks nothing.
To synthesize his two complaints, Mr. Banks alleged violations of his Ninth
Amendment "right to love"; deprivations of due process in violation of the Fifth
Amendment; violations of the Equal Protection Clause of the Fifth Amendment;
violations of his First Amendment rights; and violations of FOIA and the Privacy
Act. In adopting the July 6, 2007 Report and Recommendation of Magistrate
Judge Valerie K. Couch and the August 21, 2007 Report and Recommendation of
Magistrate Judge Doyle W. Argo in their entirety, the district court: (1) concluded
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that it lacked personal jurisdiction over Defendants Partyka and Lt. Moses and
dismissed the claims against them without prejudice, (2) dismissed without
prejudice, pursuant to 28 U.S.C. § 1915(e), Mr. Banks' claims against the U.S.
Marshal as legally frivolous and for failure to state a claim upon which relief may
be granted, and (3) dismissed with prejudice, pursuant to § 1915(e), Mr. Banks'
claims against Joe Keffer because they failed to state a claim upon which relief
may be granted. Lastly, after Mr. Banks indicated his intent to appeal the
dismissal of both suits, the district court certified that any appeal would not be
taken in good faith. See 28 U.S.C. § 1915(a)(3).
The federal IFP statute is intended to open the federal courts to indigent
litigants. Neitzke v. Williams, 490 U.S. 319
, 324 (1989). However, because 28
U.S.C. § 1915(a) allows indigent litigants to commence lawsuits without
prepayment of fees or costs "" and thereby hazards abusive litigation "" Congress
also provided for the sua sponte dismissal of "frivolous or malicious" suits under
§ 1915(e)(2)(B)(i). See Nietzke, 490 U.S. at 324. Likewise, § 1915(e)(2)(B)(ii)
provides for dismissal "at any time if the court determines that" the suit "fails to
state a claim on which relief may be granted." A suit "is frivolous where it lacks
an arguable basis either in law or fact." Nietzke, 490 U.S. at 325.
Additionally, this court has read § 1915(e)(2) to authorize the sua sponte
dismissal of claims for lack of personal jurisdiction. Trujillo v. Williams, 465
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F.3d 1210, 1217 (10th Cir. 2006); cf. Fogle v. Pierson, 435 F.3d 1252
, 1258 (10th
Cir. 2006) (" A complaint may be dismissed sua sponte under § 1915 based on an
affirmative defense . . . only when the defense is obvious from the face of the
complaint and no further factual record is required . . ." (quotation, citation
omitted)), cert. denied, 127 S. Ct. 2297
Dismissal under § 1915(e)(2) is discretionary. Denton v. Hernandez, 504 U.S. 25
, 33 (1992). Accordingly, we "review a district court dismissal under §
1915[(e)(2)] for an abuse of discretion." Whitney v. New Mexico, 113 F.3d 1170
1172 (10th Cir. 1997). Where, however, the "frivolousness determination turns
on an issue of law, we review the underlying legal determination de novo."
Pierson, 435 F.3d at 1259.
Having reviewed the record, we discern neither any abuse of discretion nor
any misstatement of the law. Both Magistrate Judges properly construed Mr.
Banks' complaints liberally. See Lamb v. Rizzo, 391 F.3d 1133
, 1135 n.1 (10th
Cir. 2004). But both identified no claims that should survive § 1915(e). As such,
for substantially the same reasons stated in the carefully researched and reasoned
reports of the Magistrate Judges, we agree with the district court's decision to
dismiss Mr. Banks' various claims. However, this court has an independent duty,
under 28 U.S.C. § 1915(e)(2), to dismiss an appeal "" rather than affirm the
district court's dismissal "" if the appeal is frivolous. In light of the district
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court's analysis and our review of Mr. Banks' claims, we dismiss his appeals as
frivolous under § 1915(e)(2).
We turn now to Mr. Banks' request to proceed IFP. The district court
denied Mr. Banks' motions for IFP status, and Mr. Banks' renewed his motion in
this court. Perhaps predictably, given the analysis above, we conclude that he has
not demonstrated "the existence of a reasoned, nonfrivolous argument on the law
and facts in support of the issues raised on appeal." McIntosh v. U.S. Parole
Comm'n, 115 F.3d 809
, 812 (10th Cir. 1997). Accordingly, we deny his motions
for IFP status and direct him to make full and immediate payment of the
outstanding balance of the appellate filing fees for both appeals.
Finally, we consider the ramifications of these two appeals for Mr. Banks'
right to seek pauper status in the future and ultimately declare four strikes for
purposes of 28 U.S.C. § 1915(g). 1 "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." Jennings v. Natrona County Det. Ctr. Med. Facility,
The "three strikes" provision of the IFP statute provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g).
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175 F.3d 775
, 780 (10th Cir. 1999). We count "a dismissal without prejudice . . .
as a strike, so long as the dismissal is made because the action is frivolous,
malicious, or fails to state a claim." Day v. Maynard, 200 F.3d 665
, 667 (10th
Cir. 1999) (per curiam). Because we dismiss both of Mr. Banks' appeals here, we
must assess Mr. Banks four strikes. 2 Thus, we caution Mr. Banks that he is barred
from bringing a civil action or an appeal from a judgment in a civil action without
One nagging issue stems from the manner in which the district court
dismissed the two suits. First, the district court dismissed the suit that gave rise
to appeal No. 07-6191 "without prejudice for failure to state a claim upon which
relief may be granted and also for lack of personal jurisdiction over defendant
Moses." Second, the court dismissed Mr. Banks' other complaint in part with
prejudice (for failure to state a claim) and in part without prejudice (for lack of
personal jurisdiction over Dr. Partyka). The overarching question, then, is
whether a mixed dismissal can constitute a strike under § 1915(g).
"[T]he entire purpose of § 1915(g) would be subverted if prisoners could skirt its procedural bar by appending" defendants over whom the court lacks
personal jurisdiction "to a complaint otherwise subject to summary dismissal on
the merits." Pointer v. Wilkinson, 502 F.3d 369
, 373 (6th Cir. 2007) (quoting
Clemons v. Young, 240 F. Supp. 2d 639
, 642 (E.D. Mich. 2003) (rejecting
argument that complaint dismissed in part without prejudice "" for failure to
exhaust claims "" should not count as strike despite the fact that rump of complaint
was dismissed with prejudice pursuant to § 1915(e)(2)(B)). While an action
dismissed "entirely without prejudice" is not a strike, Pointer, 502 F.3d at 375,
unless the "dismissal is made because the action is frivolous, malicious, or fails to state a claim" Day, 200 F.3d at 667, a prisoner may not frustrate the "frequent
filer" provision by tacking on additional defendants to a complaint that is
otherwise subject to dismissal under § 1915(e)(2)(B).
Here, the suit underlying No. 07-6191 was dismissed entirely without
prejudice, but was so dismissed under § 1915(e)(2)(B), at least in part, because of
Mr. Banks' failure to state a claim. Thus, Day controls and the dismissal counts
as a strike. Meanwhile, Pointer compels the conclusion that Mr. Banks' second suit must also be deemed a strike. In the end, then, the presence of non-
prejudicial dismissals here does not alter the § 1915(g) analysis.
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prepayment of the applicable filing fee unless he establishes that he is "under
imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
Because Mr. Banks' appeals present no reasoned, non-frivolous arguments,
we DENY his request for IFP status, DISMISS his appeals, and assess four
strikes against him.
ENTERED FOR THE COURT
David M. Ebel
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