FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 22, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BOBBY BURGHART,
Plaintiff – Appellant,
v.
CORRECTIONS CORPORATION OF
AMERICA, a/k/a CCA; CIMARRON No. 08-6083
CORRECTIONAL FACILITY; (D.C. No. 5:08-CV-00062-C)
CHARLES RAY, Warden; JOHN (W.D. Okla.)
MIDDLETON, Assistant Warden; JOHN
WELCH, Assistant Warden; H. B.
FIELDS, Chief, Unit
Management/Classification; LINDA
JESTER, Mailroom Supervisor; COY
GILLESPIE, Business Manager,
Defendants – Appellees.
ORDER AND JUDGMENT*
Before, LUCERO, McKAY, and MURPHY, Circuit Judges.
* The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Bobby Burghart, a state prisoner proceeding pro se, appeals a district court order
dismissing his constitutional challenge to 28 U.S.C. § 1915(g) and its applicability to
him. The constitutionality of § 1915(g) is well established, and Burghart offers no
credible argument that it should not apply to him. Accordingly, exercising jurisdiction
under 28 U.S.C. § 1291, we affirm the district court’s order and dismiss the appeal.
I
In January 2008, Burghart filed a 42 U.S.C. § 1983 suit in the United States
District Court for the Western District of Oklahoma against Corrections Corporation of
America, the Cimarron Correctional Facility, and various facility employees. He alleged
the defendants violated his rights under the First, Eighth, and Fourteenth Amendments.
He also filed a motion to proceed in forma pauperis (“IFP”), despite the fact his
complaint advised the court that he had accrued “three (3) strikes under the [Prison
Litigation Reform Act]” (“PLRA”).
The magistrate judge noted that § 1915(g) prevents a prisoner who has had three
suits or appeals dismissed as frivolous, malicious, or failing to state a claim upon which
relief may be granted from proceeding IFP unless he is in “imminent danger of serious
physical injury.” Because Burghart admitted “three strikes” under the statute, the
magistrate judge recommended that the district court deny the motion to proceed IFP and
order Burghart to pay the full filing fee or demonstrate that he faced imminent danger of
2
serious physical injury. Burghart objected, alleging in part that he was in danger of
serious physical injury. The district court determined that the injuries Burghart alleged
were not “serious” as contemplated by the statute, denied his motion to proceed IFP, and
ordered him to pay the filing fee within thirty days.
After his motion for reconsideration was denied, Burghart filed a constitutional
challenge to the three strikes provision of the PLRA arguing that he had not abused the
privilege of proceeding IFP and that the three strikes provision therefore violated his right
of access to the courts. Citing to Tenth Circuit precedent upholding the constitutionality
of the three strikes provision, the district court rejected his constitutional challenge. This
appeal followed.
II
Burghart argues that § 1915(g) violates his rights to procedural due process,
substantive due process, and equal protection under the Fourteenth Amendment, and
access the courts under the First Amendment; that the three strikes provision should not
apply to him because his previous law suits were not filed IFP; that he has sufficiently
alleged imminent physical injury; and that the district court judge was biased against him.
We review questions of law, including the district court’s determination as to the
constitutionality of § 1915(g), de novo, White v. Colo., 157 F.3d 1226, 1232 (10th Cir.
1998), and determinations of fact for clear error, Pierce v. Underwood, 487 U.S. 552, 558
(1988).
Burghart argues that § 1915(g) violates his constitutional rights because his
3
previous law suits were not filed IFP and therefore it is unfair to group him with prisoners
who have abused their IFP privileges. This circuit has already upheld the
constitutionality of § 1915(g) against due process, equal protection, and access to the
courts challenges. See, e.g., White, 157 F.3d 1232-35. Burghart’s constitutional
arguments are therefore without merit.
Next, Burghart argues that Congress did not intend § 1915(g) to apply to prisoners
who had not filed their earlier cases IFP. However, § 1915(g) makes no such distinction,
nor does Burghart cite to any authority in support of this argument. Instead, the cases he
cites state that Congress enacted § 1915(g) to achieve “the curtailment of abusive
prisoner tort, civil rights and conditions litigation and preserving scarce judicial
resources.” White, 157 F.3d at 1234 (quotation omitted); accord Rivera v. Allin, 144
F.3d 719, 727 (11th Cir. 1998). These ends are achieved by preventing a prisoner who
has paid filing fees in past frivolous law suits from proceeding IFP, just as they are
achieved by preventing a prisoner from proceeding IFP for the fourth or fifth time. We
therefore reject this argument.
Burghart also argues that he has sufficiently alleged imminent danger of serious
physical injury, placing him outside the strictures of § 1915(g). He alleges that he suffers
“constant stress” due to the denial of his constitutional rights and that he “has and could
suffer” migraines, “cardiovascular [problems],” hypertension, fatigue and depression, a
“suppressed immune system,” memory loss, psoriasis, weight gain, sleep disorders, and a
shortened life expectancy. These allegations are not credible: Burghart has not explained
4
how the rights violations alleged in his original complaint will produce these injuries. He
has merely asserted conclusory allegations, which fail to satisfy § 1915(g).
Finally, Burghart argues that the district court judge was biased against him. He
offers no evidence other than the fact that the judge denied his request to proceed IFP.
This argument is therefore meritless.
III
For the foregoing reasons, we AFFIRM the district court’s denial of the motion to
proceed in forma pauperis and DISMISS the appeal.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
5