F I L E D
PUBLISH United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 14 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
ROLLY O. KINNELL,
Plaintiff-Appellant,
v. No. 00-3404
BILL GRAVES, Governor of the State
of Kansas; CHARLES SIMMONS,
Secretary of Corrections; DAVID
MCKUNE, Warden, Lansing
Correctional Facility,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 00-CV-3356-GTV)
Submitted on the briefs:
Rolly O. Kinnell, pro se.
Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.
BALDOCK , Circuit Judge.
Plaintiff Rolly O. Kinnell, a Kansas state prisoner appearing pro se, filed a
civil rights complaint alleging that dismissals of previous federal court actions, in
which he sought stays of state criminal proceedings and prison disciplinary
proceedings, amounted to an unconstitutional denial of his access to the courts. 1
The district court noted that Kinnell had filed more than three previous actions
which had been dismissed as frivolous, and therefore determined that 28 U.S.C.
§ 1915(g) barred him from pursuing an action in forma pauperis (ifp) . Later, the
district court dismissed the action for failure to pay the filing fee. Kinnell now
appeals the dismissal and the three-strikes ruling that prompted it. We affirm the
dismissal. 2
Moreover, we announce filing restrictions in addition to those
imposed by § 1915(g).
1
We have construed Kinnell’s filings liberally in accordance with his pro se
status. See Haines v. Kerner , 404 U.S. § 519, 520 (1972). Although Kinnell
states that his claim arises under 42 U.S.C. 1983, which applies to state action, it
appears that his lawsuit challenges the actions of federal judges and court
personnel. It is therefore brought under Bivens v. Six Unknown Named Agents of
the Fed. Bureau of Narcotics , 403 U.S. 388 (1971).
2
After examining plaintiff’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); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
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DISCUSSION
Section 1915(g), the “three strikes” provision of the ifp statute applicable
to indigent prisoners, “requires so-called ‘frequent filer’ prisoners to prepay the
entire filing fee before federal courts may consider their civil actions and
appeals.” White v. Colorado , 157 F.3d 1226, 1232 (10th Cir. 1998). “The only
exception” to the requirement applies to prisoners “in ‘imminent danger of serious
physical injury.’” Id. (quoting 28 U.S.C. § 1915(g)). 3
Kinnell does not contest
that, while incarcerated, he has had three or more prior civil actions dismissed as
frivolous, malicious, or for failure to state a claim upon which relief may be
granted. 4 Further, he does not raise any specific or credible allegations of
“imminent danger.” See id. (requiring specific, credible allegations of “imminent
3
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a 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.
4
We have found that “Kinnell has had actions or appeals dismissed as
frivolous on more than three prior occasions.” Kinnell v. Sec’y of Veteran Affairs ,
Nos. 99-3097, 99-3100, 99-3128, 99-3130, 1999 WL 819570, at **1 (10th Cir.
July 16, 1999), cert. dismissed , 528 U.S. 1111 (2000). See also Kinnell v.
Kansas , No. 98-3225, 1999 WL 26875, at **1 (10th Cir. Jan. 15, 1999) (noting, in
a habeas corpus case, that four of Kinnell’s appeals have been dismissed as
frivolous and three others summarily affirmed).
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danger of serious physical harm”). Instead, he offers three alternate arguments
for why he believes he should not be bound by the requirement: (1) his previous
actions were not frivolous; (2) § 1915(g) is unconstitutional in that it interferes
with his rights of equal protection, due process, and access to the courts; and
(3) § 1915(g) is unconstitutionally vague “in that it does not specify what [t]hree
or more prior oc[c]asions have been dismissed, i.e. how far back.” Motion to
Show Cause for Appeal at ¶ 1. These arguments are unconvincing.
First, we will not revisit the merits of Kinnell’s previous claims. The
doctrine of “[r]es judicata, or claim preclusion, precludes a party . . . from
relitigating issues that were or could have been raised in an earlier action,
provided that the earlier action proceeded to a final judgment on the merits.”
King v. Union Oil Co. , 117 F.3d 443, 445 (10th Cir. 1997). Notwithstanding
Kinnell’s conclusory allegations of unfairness, the doctrine of res judicata bars an
attack on the judgments entered in his prior cases.
Second, Kinnell’s argument that § 1915(g) is unconstitutional because it
violates the First Amendment, and the Equal Protection and Due Process Clauses
of the Fourteenth Amendment, is squarely foreclosed by Tenth Circuit precedent.
In White , 157 F.3d at 1232-34, we reviewed § 1915(g) under a rational basis test
and rejected a prisoner’s equal protection and due process challenges founded
upon a First Amendment claim of right of access to the courts. We held that ifp
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status in a civil case is not a fundamental right, id. at 1233, and that § 1915(g) “is
rationally related to the legitimate end of deterring frivolous and malicious
prisoner lawsuits,” id. at 1234.
Kinnell’s statement that he is black as well as indigent is of no consequence
to our evaluation of his Equal Protection argument. The threshold requirement of
an Equal Protection claim is a showing that the government discriminated among
groups. “Unless a legislative classification either burdens a fundamental right or
targets a suspect class , it need only bear a ‘rational relation to some legitimate
end’” to satisfy the Equal Protection Clause. Id. at 1234 (quoting Romer v.
Evans , 517 U.S. 620, 631 (1996) (emphasis added). We see no basis for a
contention that § 1915(g) specifically targets indigent inmates who are also
members of a suspect class.
Kinnell’s third argument arises from his notion that § 1915(g) is
unconstitutionally vague for failure to provide a time limit for dismissals that can
be counted as strikes. “[T]he void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson , 461
U.S. 352, 357 (1983). Section 1915(g) does not prohibit any conduct, and
vagueness principles provide no basis for challenging it.
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Moreover, we have previously undertaken a “plain reading” of the “plain
language” of § 1915(g). Green v. Nottingham , 90 F.3d 415, 419-20 (10th Cir.
1996). After doing so, we held that the statute merely announced a new
procedural rule governing new ifp prisoner filings of “prisoners who have shown
a propensity toward filing meritless lawsuits in the past,” without affecting the
merits of the underlying action or changing the “legal consequences of prisoner
actions dismissed before the statute’s enactment.” Id. at 420. We find no
substance to Kinnell’s contention that the statute is somehow unconstitutionally
vague.
The district court correctly dismissed Kinnell’s complaint under § 1915(g).
Accordingly, we DENY leave to proceed ifp in this court and DISMISS this
appeal. Kinnell is reminded that the dismissal of his appeal does not relieve him
of the responsibility to pay the appellate filing fee in full. We further emphasize
that, while incarcerated, Kinnell may not bring a new federal civil action without
prepaying the full filing fee unless he is “under imminent danger of serious
physical injury.” § 1915(g).
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FILING RESTRICTIONS
It is clear that Kinnell’s filings in this court have been repetitive and
frivolous and that restrictions beyond those imposed by § 1915(g) are needed to
prevent further such filings. We therefore impose additional restrictions on
Kinnell’s filings in this court, whether or not he pays a full filing fee. Kinnell is
enjoined from proceeding as an appellant or a petitioner without the
representation of a licensed attorney admitted to practice in this court, unless he
first obtains permission to proceed pro se. To do so, he must take the following
steps:
1. File a petition with the clerk of this court requesting leave to file a pro
se proceeding;
2. Include in the petition the following information:
a. A list, by case name, number, and citation where applicable, of all
proceedings currently pending or filed previously in this court by
Kinnell, with a statement indicating the current status of disposition
of each proceeding;
b. A list apprising this court of all outstanding injunctions, contempt
orders, or other judicial directions limiting his access to state or
federal court, including orders and injunctions requiring him to be
represented by an attorney; said list to include the name, number and
citation, if applicable, of all such orders and injunctions;
3. File with the clerk a notarized affidavit, in proper legal form, which
recites the issues he seeks to present, including a particularized description of the
order or ruling being challenged and a short statement of the legal basis asserted
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for the challenge. The affidavit must also certify, to the best of his knowledge,
that the legal arguments advanced are not frivolous or made in bad faith; that they
are warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law; that the appeal or other proceeding is
not interposed for any improper purpose; and that he will comply with all federal
appellate rules and local rules of this court.
These documents shall be submitted to the clerk of this court, who shall
forward them to the chief judge for review to determine whether to permit the pro
se appeal or other proceeding. Without the chief judge’s approval, the matter will
not proceed. If the chief judge approves the submission, an order will be entered
indicating that the matter shall proceed in accordance with the Federal Rules of
Appellate Procedure and the Tenth Circuit Rules. Only at that juncture will the
appeal or other proceeding formally be filed in this court.
Kinnell shall have ten days from the date of this opinion to file written
objections, limited to fifteen pages, to these proposed restrictions. Unless this
court orders otherwise upon review of any objections, the restrictions shall take
effect twenty days from the date of this opinion and shall apply to any matter filed
by Kinnell with this court after that time.
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CONCLUSION
This appeal is DISMISSED. In addition to the statutory restrictions of
§ 1915(g), the restrictions set forth herein shall be imposed upon Kinnell unless
this court orders otherwise upon review of timely filed written objections. We
have considered Kinnell’s hand-written motion filed August 2, 2001, and DENY
the motion.
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