FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 22, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JEMAINE MONTEIL CANNON,
Plaintiff-Appellant, Nos. 09-7020, 09-7021, 09-7022,
09-7023, 09-7025, & 09-7062
v.
CHESTER MASON, OSP Health (D.C. Nos. 08–CV–00193–RAW–SPS,
Services Administrator; DR. 08–CV–00191–RAW–SPS,
RAYMOND STEWART, OSP 08–CV–00192–RAW–SPS,
Physician; DR. MILLER, OSP 08–CV–00188–RAW–SPS,
Provider for Ophthalmology Services; 08–CV–00130–RAW–SPS,
C. KAMPAS, OSP Registered Nurse; 08–CV–00148–RAW–SPS)
SGT. WRIGHT; LINDA (E.D. Okla.)
MONTGOMERY, LPN – Licensed
Practical Nurse; JANE DOE, Nurse;
Nurse Folsom, LPN,
Defendants-Appellees.
ORDER AND JUDGMENT *
__________________________
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of these appeals. See Fed. R. App. P. 34(a)(2); 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This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
The cases are therefore ordered submitted without oral argument.
In these consolidated appeals, a pro se state prisoner appeals the dismissal
of six complaints brought under 42 U.S.C. § 1983 against various correctional
employees and officials. Each case was fully considered by the same district court
judge, and on appeal we consolidated briefing for five of the six cases. We have
further consolidated all six cases for decision and address them in this single order
and judgment.
In case 09-7020, Plaintiff sued prison officials for violation of his Eighth
Amendment rights following the alleged seizure of two ultra-violet protective eye
shields and a DHD acapella Plaintiff was using in conjunction with medical
conditions. The court dismissed this complaint based on its determination Plaintiff
had failed to fully exhaust his administrative remedies as required by 42 U.S.C. §
1997e(a). Cases 09-7021 and 09-7023 arose from two separate incidences where a
prison nurse declined to provide Plaintiff with allegedly vital medication following
his refusal to sign for its receipt. Plaintiff claimed these actions constituted cruel
and unusual punishment. In both cases the district court first concluded Plaintiff
had failed to exhaust his administrative remedies and then dismissed the complaint
as frivolous under 28 U.S.C. § 1915(e). In case 09-7022, Plaintiff alleged an
Eighth Amendment violation occurred when prison authorities failed to provide
him with access to his medical records. Again the district court first held that
Plaintiff had failed to exhaust his administrative remedies and then dismissed the
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case as frivolous. Plaintiff’s claims in case 09-7025 are similarly based on the
Eighth Amendment and stem from allegations that prison officials failed to
provide access to a working toilet and to comply with the requirements of
Plaintiff’s dietary needs. The district court dismissed the suit for failure to
exhaust administrative remedies. Finally in case 09-7062 Plaintiff again claimed a
violation of the Eighth Amendment, this time arising from an alleged failure to
provide him with water-impermeable tape and adequate continuing medical care
following an operation. The district court held Plaintiff had failed to state a
constitutional claim and then dismissed the case as frivolous.
Plaintiff asks that we reverse the district court’s decisions and remand the
cases for further consideration. We review de novo a district court’s dismissal for
failure to exhaust administrative remedies under § 1997e. See Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). We review a district court’s
dismissal of an in forma pauperis complaint as frivolous for an abuse of
discretion. Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995).
After careful review of the district court’s decisions, the briefs, and the
record on appeal, we agree with the district court that Plaintiff failed to exhaust
his administrative remedies by properly complying with the prison’s procedural
rules. See Woodford v. Ngo, 548 U.S. 81, 90–91 (2006). Additionally, we hold
the district court did not abuse its discretion in dismissing cases 09-7021, 09-7023,
09-7022, and 09-7062 as frivolous. Under § 1915(e), a court may not dismiss a
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complaint as frivolous “simply because the court finds the plaintiff’s allegations
unlikely.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). However, in view of the
complete lack of support for Plaintiff’s positions in our case law, as well as the
dismissal of at least one of Plaintiff’s prior civil rights cases for failure to exhaust
prior to filing the cases at issue, the district court properly concluded that
Plaintiff’s “claim[s were] based on . . . indisputably meritless legal theor[ies].”
Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989)). Accordingly, for substantially the same
reasons set forth in the district court’s orders, we AFFIRM the dismissal of cases
09-7020 and 09-7025. Further, in accord with § 1915(e)(2)(B)(i), we DISMISS
Plaintiff’s appeal of cases 09-7021, 09-7023, 09-7022, and 09-7062 as frivolous.
We remind Appellant that under the three-strikes rule, a prisoner may not
bring a civil action or appeal a judgment in a civil action or
proceeding under this section [without full advance payment of the
filing fee] 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). With our decision today, Plaintiff now has eight strikes
against him and will thus be denied in forma pauperis status in future federal
prisoner filings, other than habeas petitions, unless he is “under imminent danger
of serious physical injury,” consistent with § 1915(g). See Jennings v. Natrona
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County Det. Ctr., 175 F.3d 775, 780–81 (10th Cir. 1999).
Finally, Plaintiff has appealed an early decision by the clerk’s panel denying
his motion to pay a single filing fee for the five earlier consolidated appeals. We
AFFIRM that order. We note the district court granted Plaintiff IFP status for
each of these six appeals. We remind Plaintiff that he remains responsible to make
partial payments for each of the underlying cases until all fee obligations are
satisfied—there are no exceptions for dismissed appeals. See Kinnell v. Graves,
265 F.3d 1125, 1129 (10th Cir. 2001).
Entered for the Court
Monroe G. McKay
Circuit Judge
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