Lomax v. Raemisch ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 8, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ARTHUR J. LOMAX, a/k/a Arthur James
Lomax,
Plaintiff - Appellant,
No. 18-1250
v. (D.C. No. 1:18-CV-00321-GPG-LTB)
(D. Colorado)
CHRISTINA ORTIZ-MARQUEZ;
MATASHA KINDRED; DANNY
DENNIS; MARY QUINTANA,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
_________________________________
Arthur J. Lomax appeals the district court’s order denying him leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The district court denied
Mr. Lomax’s motion as barred by the three-strikes provision, 28 U.S.C. § 1915(g).
Because Mr. Lomax has accumulated three strikes prior to commencing this action,
*
After examining Mr. Lomax’s brief and the 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is not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value consistent
with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
and because he has not alleged sufficient imminent danger, we affirm the judgment of
the district court.
I. BACKGROUND
Mr. Lomax is a Colorado prisoner at the Limon Correctional Facility.
Mr. Lomax was previously incarcerated at the Centennial Correctional Facility and
filed a complaint naming, as defendants, five Centennial Correctional Facility
employees and a member of the Central Classification Committee at Offender
Services. Mr. Lomax also filed a motion for leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. Upon direction of the district court, Mr. Lomax
amended his complaint. Through his amended complaint, Mr. Lomax alleged Fifth,
Eighth, Ninth, and Fourteenth Amendment violations stemming from his expulsion
from the Sex Offender Treatment and Monitoring Program at Centennial Correctional
Facility.
The same district court dismissed three of Mr. Lomax’s previous actions on
the grounds that they failed to state a claim. In Lomax v. Hoffman, No.
13-02131-BNB¸ 2013 U.S. Dist. LEXIS 115589, at *4–5 (D. Colo. Aug. 15, 2013),
the district court dismissed the action as barred by Heck v. Humphrey, 512 U.S. 477
(1994) (holding that a litigant cannot bring a § 1983 claim challenging a conviction’s
legitimacy until that conviction has been dismissed). The district court dismissed Mr.
Lomax’s second action, Lomax v. Hoffman, No. 13-cv-03296-BNB, 2014 U.S. Dist.
LEXIS 8230, at *3 (D. Colo. Jan. 23, 2014), also based on the action being barred by
Heck. Mr. Lomax brought a third action, Lomax v. Lander, No.
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13-cv-00707-WJM-KMT, 2014 U.S. Dist. LEXIS 55056 (D. Colo. Apr. 21, 2014)
(adopting the magistrate judge’s recommendation in Lomax v. Lander, No.
13-cv-00707-WJM-KMT, 2014 U.S. Dist. LEXIS 55058 at *9–22 (D. Colo. Mar. 18,
2014)), which the district court dismissed for lack of subject matter jurisdiction and
failure to state a claim.1 The district court that screened Mr. Lomax’s present
complaint concluded that all three dismissals qualified as strikes for purposes of
§ 1915(g).
Because of the previous strikes, the district court ordered Mr. Lomax to show
cause before proceeding in forma pauperis. In response to the show cause order,
Mr. Lomax advanced two arguments. First, Mr. Lomax argued that because the
district court dismissed his previous complaints without prejudice, the dismissals do
not count as strikes. Second, Mr. Lomax argued that if his previous dismissals
counted as strikes, he is under imminent physical danger and, therefore, satisfies the
only exception to the three strikes rule. In his response to the show cause order,
Mr. Lomax alleged his presence at the Limon Correctional Facility places him in
imminent physical danger due to how the guards there have treated him in the past.
Specifically, Mr. Lomax alleges that a Lt. Wilson physically assaulted him the last
time he was housed at Limon Correctional Facility. And, in an early filing before the
district court, Mr. Lomax reported that a Limon Correctional Facility guard
1
The district court dismissed two of Mr. Lomax’s claims for lack of subject
matter jurisdiction and the others for failure to state a claim. See Lander, 2014 U.S.
Dist. LEXIS 55058 at *9–22.
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commented that he thought Mr. Lomax was dead by now and that, in general, the
guards do not like sex offenders, have shown bias against sex offenders, and say all
sex offenders should be dead.
The trial court rejected Mr. Lomax’s arguments to proceed in forma pauperis
and required him to pay the $400 filing fee if he wished to pursue his claims.
Mr. Lomax appeals from the district court’s denial of leave to proceed in forma
pauperis. We exercise jurisdiction under 28 U.S.C. § 1291. See Roberts v. U. S. Dist.
Court for the N. Dist. of Cal., 339 U.S. 844, 845 (1950) (per curiam) (relying on
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), and § 1291 to conclude
“[t]he denial by a District Judge of a motion to proceed in forma pauperis is an
appealable order”); see also Lister v. Dep’t of Treasury, 408 F.3d 1309, 1310 (10th
Cir. 2005) (applying Roberts when taking jurisdiction over appeal from denial of
motion to proceed in forma pauperis).
II. DISCUSSION
Mr. Lomax proceeds without representation; thus we will “liberally construe
his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312,
1315 (10th Cir. 2013). Accepting as true the facts laid out in the complaint, we
review the district court’s determination that Mr. Lomax had three strikes de novo.
Smith v. Veterans Admin., 636 F.3d 1306, 1309 (10th Cir. 2011).
A. Motions Denied Without Prejudice Count as Strikes
The statute governing when a prisoner is precluded from proceeding in forma
pauperis states:
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In no event shall a prisoner bring a civil action or appeal a judgment in
civil action or 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). Mr. Lomax alleges “a dismissal without prejudice for failure to
state a claim does not count as a strike.” ROA at 37 (citing Mendez v. Elliot, 45 F.3d
75, 78 (4th Cir. 1995)). Under Mr. Lomax’s argument, the dismissals without
prejudice of two of his prior actions as barred by Heck would not count as strikes.
A “dismissal for failure to state a claim under Rule 12(b)(6) satisfies the plain
text of § 1915(g) and therefore will count as a strike.” Childs v. Miller, 713 F.3d
1262, 1266 (10th Cir. 2013). Further, “[i]n this circuit, it is immaterial to the strikes
analysis [whether] the dismissal was without prejudice,” as opposed to with
prejudice. Id. Finally, “[o]ur precedent holds that the dismissal of a civil rights suit
for damages based on prematurity under Heck is for failure to state a claim.” Smith,
636 F.3d at 1312.
The previous claims Mr. Lomax filed while incarcerated were dismissed as
barred by Heck or for failure to state a claim. And, contrary to Mr. Lomax’s
argument, the fact that two of the dismissals were without prejudice is immaterial.
Thus, the district court correctly concluded the two Hoffman dismissals and the
Lander dismissal all count as strikes.2
2
The Lander dismissal does not state whether it was dismissed with or without
prejudice. Unless otherwise stated, dismissals under Rule 12(b)(6) are with prejudice.
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B. Imminent Danger of Serious Physical Injury
The exception to the prohibition on a prisoner with three strikes proceeding in
forma pauperis is for prisoners “under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g). Before the district court, Mr. Lomax, in an effort to satisfy the
imminent danger exception, alleged a Limon Correctional Facility guard attacked
him in the past, other guards at the facility do not like sex offenders, and he fears for
his life.
In evaluating Mr. Lomax’s imminent danger allegations, we adopt the Second
Circuit’s position that an inmate seeking the imminent danger exception must show
“a nexus between the imminent danger a three-strikes prisoner alleges to obtain [in
forma pauperis] status and the legal claims asserted in his complaint.” Pettus v.
Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009). To determine whether a nexus exists,
a court should consider “(1) whether the imminent danger of serious physical
injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct
asserted in the complaint and (2) whether a favorable judicial outcome would redress
that injury.” Id. at 298–99.
See Slocum v. Corp. Express U.S. Inc., 446 F. App’x. 957, 960 (10th Cir. 2011)
(“Rule 12(b)(6) dismissals, unless otherwise indicated, constitute a dismissal with
prejudice.”); see also Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012) (“Although
there is a presumption that a dismissal under Rule 12(b)(6) is a judgment on the
merits made with prejudice, such a dismissal can be rendered without prejudice if the
court so specifies.” (citation omitted)); Stern v. Gen. Elec. Co., 924 F.2d 472, 477 n.7
(2d Cir. 1991); Carter v. Norfolk Cmty. Hosp. Ass’n, Inc., 761 F.2d 970, 974 (4th Cir.
1985).
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Applying this framework, we conclude a nexus is lacking. Mr. Lomax’s
complaint raises claims relative to his removal from a sex offender treatment
program while he was housed at the Centennial Correctional Facility. And the
complaint alleges that five employees at the Centennial Correctional Facility, as well
as a member of the Central Classification Committee at Offender Services, were
responsible for his removal from the sex offender treatment program. But,
Mr. Lomax’s allegations regarding imminent danger involved his fears of
mistreatment by guards at the Limon Correctional Facility. This fear is not fairly
traceable to the Fifth, Eighth, Ninth, and Fourteenth Amendment violations
Mr. Lomax sought to advance through his complaint. And a favorable judicial
outcome will not redress any mistreatment at the hands of guards at the Limon
Correctional Facility as, according to Mr. Lomax, “the only benefit that a victory in
this case will provide . . . is a ticket to get in the door of the parole board.” ROA at
10 (alterations in original) (quoting Leamer v. Fauver, 288 F.3d 532, 543 (3d Cir.
2002)). Thus, Mr. Lomax has not advanced sufficient allegations to qualify for the
imminent danger exception to § 1915(g)’s prohibition on a three-strikes litigant
proceeding in forma pauperis.
Even in the absence of the nexus requirement, Mr. Lomax has not alleged
sufficient imminent physical danger as that term is understood. To qualify for the
exception, a plaintiff must advance allegations that “identify at least the general
nature of the serious physical injury he asserts is imminent” and that “[v]ague and
utterly conclusory assertions are insufficient.” Hafed v. Fed. Bureau of Prisons, 635
7
F.3d 1172, 1180 (10th Cir. 2011) (internal quotation marks omitted); see Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (holding general assertions are
insufficient “absent specific fact allegations of ongoing serious physical injury, or of
a pattern of misconduct evidencing the likelihood of imminent physical injury”);
Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 n.1 (3d Cir. 2001) (finding multiple
generalized allegations of harassment by prison guards insufficient to establish “a
pattern of threats of serious physical injury that [is] ongoing.”). Finally, the
allegation of imminent danger must be present “at the time [the prisoner] filed his
complaint.” Hafed, 635 F.3d at 1179.
Mr. Lomax’s assertions of imminent physical danger are insufficient under this
standard. Simply stating a guard attacked him in the past and still works at the prison
does not indicate any type of pattern of serious and ongoing physical harm or
otherwise evidence the likelihood of imminent danger. Accordingly, even if the nexus
requirement did not apply, Mr. Lomax has not sufficiently alleged imminent physical
danger and does not qualify for the exception as stated in 28 U.S.C. § 1915(g).
III. CONCLUSION
Mr. Lomax’s challenge on appeal fails due to his previous dismissals counting
as strikes and his insufficient pleading of imminent physical danger. We AFFIRM
the district court’s judgment. We also DENY Mr. Lomax’s motion to proceed
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without prepayment of costs and fees, and Mr. Lomax is directed to pay the appellate
filing fee in full. See Childs, 713 F.3d at 1267; Smith, 636 F.3d at 1315.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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